The Right to Information Act 20091 (Qld) (RTI Act) gives people the right to access documents in the possession or control of Queensland government agencies2. This right of access is subject to some limitations. These limitations include information which is exempt from release under schedule 3 of the RTI Act.3
Schedule 3, section 7 of the RTI Act provides that information which would be privileged from production in a legal proceeding on the ground of legal professional privilege (LPP) is exempt from release. Applying this section requires a consideration of the common law requirements for establishing legal professional privilege.
OIC has a three-part video series available on YouTube: Legal Professional Privilege and key decisions are available in the Annotated Legislation. Legal Professional Privilege – a guide for applicants can be useful to include with decision notices to help applicants understand why access has been refused.
Broadly, for information to be subject to LPP it must be a confidential communication made:
If these elements are satisfied, the agency must still consider if:
Information which only shows the total legal fees paid by an agency, ie it does not reveal legal advice or representation, will generally not be exempt under this provision, as it does not attract legal professional privilege.4 Given the strong public interest in ensuring effective oversight of the expenditure of public funds it is also unlikely to be contrary to the public interest to release.5 However, where the legal fees were paid by an agency’s insurer’s underwriter instead of the agency, they were found contrary to the public interest to release, although they still did not attract legal professional privilege.6
LPP attaches to communications rather than documents,7 however the document which records the substance of privileged communications between a lawyer and client is protected by LPP. The key is whether disclosure of the document would also disclose a privileged communication.8
Not all communications between a lawyer and a client are privileged. To attract LPP, the communication must be confidential.9 Generally, if communications are made in a third party's presence the communication will not have the confidentiality necessary to attract LPP.10 This may be different if the third party is an agent, employee, or contractor of the lawyer or client.
A document will not be subject to LPP simply because it was copied to a lawyer for their information.14 For example, if a client requests policy advice, copying the request to the lawyer will not make the policy advice or the request subject to LPP.
LPP extends to any document which directly reveals, or which allows a reader to infer, the content or substance of a privileged communication.15 This principle is particularly relevant when determining whether LPP applies to other confidential legal work carried out by a lawyer while preparing or giving legal advice or during current or anticipated litigation.
LPP can apply to documents which record confidential legal advice or legal work even where those documents are not communicated to the client. Examples include:
Advice privilege may also extend, subject to satisfying the dominant purpose test, to notes, drafts, charts, diagrams, spreadsheets and other documents provided by the client in the course of communicating information to the lawyer.17 Whether privilege attaches to these documents will depend on whether disclosure of the information would reveal the privileged communication.18
Similarly, litigation privilege can extend to material which is not communicated to the client but which is obtained by the lawyer for the dominant purpose of use in, or in relation to, existing or reasonably anticipated litigation.19 For example, draft pleadings and draft affidavits may attract LPP even though they are not communicated to the client.
Third party communications can attract litigation privilege, for example where third party communications are created to:
A non-exhaustive list can be found in Trade Practices Commission v Sterling.20
Third party communications can also attract advice privilege, eg the giving or obtaining of legal advice, even in the absence of existing or reasonably anticipated proceedings.21
Communications involving third parties who are agents of the client or lawyer (ie. an authorised representative) may be privileged as though the communications were made by the client or lawyer themselves.
On the other hand, communications made by pure third parties will only attract LPP in limited circumstances. When deciding if a third party communication is privileged it is important to determine the status of the third party.
In Pratt Holdings, a third party loss assessment group was commissioned by Pratt Holdings to prepare a report for the purpose of the company instructing its lawyers with the view to obtaining legal advice. The loss assessment group were pure third parties, not agents of Pratt Holdings, and at the time the report was commissioned there were no existing or reasonably anticipated proceedings. The majority judgment found that the report was subject to LPP.
LPP only attaches to confidential communications between a lawyer and a client where:
Whether a lawyer is appropriately qualified and independent may be established by proof of the lawyer’s admission to practice as a barrister or solicitor.23 A lawyer employed by a government agency or an 'in-house' lawyer—such as a salaried officer employed as a lawyer for the agency24—may claim privilege if there is ‘a professional relationship which secures to the advice an independent character notwithstanding the employment’.25
Communications between employee lawyers of an agency and their employers as the client (including communications through other employees of the same employer) will be privileged if the relationship is one which establishes that their advice has the necessary independent character despite their employment.
If an in-house lawyer’s advice is affected by their personal loyalties, duties, or interests, they will not have the necessary degree of independence.26 Other factors which may impact the independence of a lawyer include:
The purpose for which the confidential communications were brought into existence is vital to determining whether LPP attaches to the communication.30 Confidential communications are only privileged if they are created for the dominant purpose of:
The dominant purpose is not the primary or substantial purpose32, but rather ‘the ruling, prevailing or most influential purpose’33. If there are two or more purposes of equal importance, it may be that no one purpose can be said to be the dominant purpose.
The intent of the document's author—or the person on whose instructions the document was created—is relevant when determining the dominant purpose but is not determinative.34 While there may be several purposes for a communication's creation, only one of those purposes will be dominant.
The purpose for which the communication is brought into existence is a question of fact which is generally determined by considering:
Generally, the dominant purpose is determined at the time the communication, or document recording the communication, was created. If the client had paid a legal retainer to the lawyer at the time the documents were brought into existence, it is reasonable to conclude the dominant purpose of their creation was the provision of legal advice.35
Advice privilege attaches to confidential communications between a lawyer and client (or a client/lawyer and a third party) made for the dominant purpose of obtaining or providing legal advice.36
Advice privilege will also apply if a person directs or authorises a third party (as their agent) to make a communication:
Legal advice has been broadly interpreted to extend to all ‘professional advice as to what a party should prudently or sensibly do in the relevant context’.38 Legal advice does not, however, extend to advice ‘that is purely commercial or of a public relations character’.39
Specific examples of communications made for the dominant purpose of giving or seeking legal advice include:
Where the dominant purpose test is met LPP can apply to communications with a third party who is not an agent of the client or lawyer41, for example, with a third party specialist retained to ensure the client obtains accurate advice about their particular circumstances.
Legal advice can go beyond strict formal advice about the law. It can extend to advice as to what would be prudent and sensible to do in the relevant legal framework.42
While privilege does not apply to advice prepared for the dominant purpose of financial, personal, commercial or public relations matters43 or to policy or administrative advice,44 the advice must be characterised as a whole. If it is made up of integrated legal and commercial advice that cannot be disentangled, it can properly be characterised as legal advice.45
In Pluta, the Queensland Rail Board commissioned a report from their external lawyers. The Right to Information Commissioner found that it was privileged, noting that the Board had expressly resolved to seek legal advice and that the production of the report in response to that resolution involved the:
…application of professional legal skills by way of gathering and marshalling documentary and oral evidence, taking statements, analysing relevant issues and drawing a comprehensible report expressing various conclusions based upon Minters’ analysis of the underlying evidence – work discharged by independent lawyers in a professional legal capacity. All of this activity was undertaken within the relevant legal context of the governance and probity obligations imposed on QR by various statutory and policy instruments, and the result of that work – the information in issue – can be fairly characterised as ‘advice as to what should be prudently and sensibly done in the relevant legal framework’.[2]
Litigation privilege attaches to confidential communications between a lawyer and client made for the dominant purpose of use in, or in relation to, litigation. The litigation must have begun or have been reasonably anticipated at the time the communication was made.
For the purposes of litigation privilege, ‘proceedings’ include both judicial and quasi-judicial proceedings.48 Litigation privilege can extend to actual or anticipated litigation in tribunals provided the proceedings are ‘sufficiently analogous to court proceedings to compel a conclusion that the proceedings attract legal professional privilege'.49
Royal Commission hearings are not considered ‘proceedings’ for the purpose of LPP because the Commission does not have the power to make final determinations on a person’s legal rights or obligations.50
Litigation will be reasonably anticipated where there is a “real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not”51. Judgement about whether litigation is reasonably anticipated requires an objective view of the circumstances.52
When considering documents on a legal file, litigation privilege may apply to the following types of communications:
Litigation privilege also covers third party communications where they are:
Communications between a lawyer and a potential witness where the dominant purpose of the communication was for the lawyer to obtain evidence for use in a prosecution.54
Even where the tests for LPP are satisfied, documents may not be privileged, either because privilege has been waived or because the improper purpose exception applies.
If privilege is waived, documents are not exempt under schedule 3, section 7 of the RTI Act.55
Privilege can be waived by:
Waiver of legal professional privilege, particularly implied waiver, is a highly contested area of law. Implied waiver can be complex, turnings on the facts of each case, including the objective purpose of the relevant disclosure.56
LPP will be expressly waived when the client or their agent deliberately and intentionally discloses the confidential communications.57 The client’s solicitor may expressly waive the privilege on the client’s behalf, as an agent of the client.58
LPP will not generally be waived if a regulatory body exercises a statutory power to compel the production of privileged material.59 LPP will only be waived if the Act contains an express, unambiguous intention to deny LPP.60
Where confidential communications are disclosed because of dishonesty or fraud, there will be no express waiver.61 Whether mistaken disclosure of privileged documents amounts to express waiver may depend on the consequences of the disclosure. In certain circumstances, LPP may still be claimed having regard to the absence of significant consequences as well as the delay and measures taken to rectify the disclosure.
For example, LPP was maintained where a solicitor requested the return of the document and identified the mistaken disclosure before the opposing party had benefited from the disclosure.62 However, where cross-examination on the document had already occurred LPP was taken to be expressly waived.63 Further, LPP may be claimed on a document inadvertently disclosed where a ‘reasonable person with the qualities of the actual recipient’ would have realised that the document was mistakenly disclosed.64
LPP exists to protect confidential communications between a lawyer and client. It will be impliedly waived when the actions of the person entitled to the privilege are inconsistent with maintaining that confidentiality.65 For example, discussing the contents of legal advice in a media interview or in a Facebook post.
Whether someone’s conduct is sufficient to waive privilege will depend on the specific circumstances and the conduct of the person who holds the privilege. Implied waiver may involve:
Where a communication was made as part of an illegal or improper purpose, or a purpose contrary to the public interest, it cannot be privileged.71 It is irrelevant whether the lawyer knew about the improper purpose. This is called the improper purpose exception.72
The improper purpose exception requires the communication to be made for the purpose of achieving an illegal or improper purpose.73 This is not the same as a client seeking legal advice in relation to their past improper conduct, for example where a client has committed fraud and is seeking advice about the possible consequences.
Given the complexity of LPP and the sensitive nature of the information to which it may attach, it is important for agencies to be aware of common issues that arise when dealing with information or documents that may be subject to LPP.
Current as at: November 26, 2021