Australia: Freedom Of Information Act And Legal Professional Privilege:Secretary To The Department Of Justice V Osland [2007] VSCA 96

The Court of Appeal has recently reinforced the importance of maintaining the protection of legal professional privilege and has clarified the ‘public interest’ test in determining whether the privilege should be overridden in an FOI application.

In 1996, Heather Osland was convicted of the murder of her husband. She unsuccessfully appealed to the High Court. In the context of her claim that her husband had subjected her to sustained and severe domestic violence, Ms Osland’s conviction, and sentencing to 14 and a half years in prison, generated significant public interest in her case and agitation for law reform in defences to homicide and battered women’s syndrome.

In 1999, Ms Osland sought a pardon from the Governor on six grounds. In 2001, the Attorney-General announced that the Governor had refused Ms Osland's petition for mercy. The Attorney-General announced in a press release that he had recommended that the Governor deny the petition and that he had based his recommendation on a memorandum of advice provided by three senior counsel. The joint advice, he said, ‘recommend[ed] on every ground that the petition should be denied’.

Ms Osland later requested access, under the Freedom of Information Act 1982, to the joint advice and other advices provided to the Government in relation to her petition. The Department refused access to the relevant documents, claiming that they were exempt under section 32 of the Act on the grounds of legal professional privilege.

The Victorian Civil and Administrative Tribunal upheld Ms Osland’s application for review of this decision and ordered that the documents be released. The Department appealed. The Court of Appeal has now allowed the appeal and held that access to the documents be refused.

In its decision, the Court clarifies the law relating to waiver of legal professional privilege and its relationship with section 32 of the FOI Act. This has mixed implications for Government and its agencies.

First, the Court has accepted that waiver of the privilege is relevant to whether an exemption can be upheld under section 32. This is a question of fact. If an agency behaves in a way that is inconsistent with maintaining the confidentiality in a legal professional privileged document, the agency will be held to have waived the privilege and to have lost the capacity to claim an exemption under section 32.

The Court has also clarified and narrowed the test for determining whether particular behaviour has resulted in waiver of the privilege. The Court has moved away from previous decisions that suggested that, where the ‘gist or conclusion’ of legal advice is disclosed, the privilege is waived. In the present case, the Court has established a test requiring a factual examination of the degree to which the content of the advice was revealed and the context in which the statements were made. The Court will examine whether the person claiming privilege has behaved inconsistently with the claim for privilege.

The Court found that, under this test of inconsistency, it is possible ‘in appropriate circumstances’ to disclose publicly that one is ‘acting on advice and what the substance of that advice is, without being at risk of having to disclose the confidential content of the advice’.

For Government and its agencies, this means that it is possible to refer publicly to having relied on legal advice and the gist of that advice, as the Attorney-General did in this case, without losing the privilege in the document, or the ability to claim an exemption under section 32 should an FOI application be made.

The Court’s decision also addresses the application of the ‘public interest override’ under section 50(4) of the FOI Act. The Court confirmed that the Tribunal should not override an exemption unless the public interest truly demands release of the information. In so finding, the Court concluded that ‘the case for access must be irresistible’.

The Court also found that, in balancing the competing public interests of access to information and privileged communication, ‘[t]he public interest factors which underpin the privilege support all privileged documents uniformly’. Accordingly, a privileged document is not more susceptible to being released depending on its ‘content’ or ‘current relevance’. Once privilege attaches, it attaches forever until waived. In applying the public interest test, the Tribunal should not find that the exemption is overridden because a privileged document is somehow ‘less privileged’ in certain circumstances; it must find that the public interest requires the privilege that exists be overridden.

The Court also emphasised that the fact that the public is interested in an issue - as media coverage suggested sections of the public were in Ms Osland’s case - is not, by itself, relevant to the question of whether the public interest requires disclosure of a related document under section 50(4). The FOI applicant’s personal interest in release of a document is also irrelevant to that question, even where, as in Ms Osland’s case, that personal interest is ‘intense’ and ‘wholly understandable’.

Finally, the Court also held that abstract considerations of policy - such as the ‘desirability of greater transparency in decision-making by the executive’ - are not relevant to the analysis to be performed under section 50(4). Rather, in order to invoke the override, the Tribunal must be satisfied that, if access is not granted to the document, the public interest will suffer or be diminished in some concrete respect. Related to this, the Court noted that transparency is not necessarily desirable in respect of all executive decision making. If the decision to which a document relates is not reviewable - such as, for example, the decision to deny Ms Osland’s petition for mercy - an argument that the public interest in greater transparency in respect of the decision is unlikely to be a sufficient basis for invoking the override. Decisions that are outside both the justice system and the statutory scheme for review of administrative decisions are likely to fall into this category.

By emphasising the importance of legal professional privilege as integral to the public interest, the Court has provided a useful reminder of the status of the section 32 exemption and the need for FOI officers to be alert to the possibility of exemption under section 32 when dealing with legal advice to the department or agency.

By confirming that age, currency and content are irrelevant to the question of whether or not a document is exempt under section 32, the Court has also made it easier for FOI officers to determine the question of exemption under that section. If the circumstances of the creation or receipt of a document mean that it satisfies the definition of a legally privileged document, it is irrelevant that the document is, for example, ‘of historical interest only’ rather than being ‘under active consideration’. Once privileged, a document is privileged for all time until the privilege is waived; and no one privileged document is more privileged than another.

Finally, the Court has clarified the parameters of the section 50(4) override and narrowed its potential application.

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