Freedom of Information Act and legal professional privilege

This article examines a recent decision of the High Court in Osland v Secretary to the Department of Justice [2008] HCA 37 about the Victorian Freedom of Information Act (FOI Act), and in particular the Court's comments on legal professional privilege and the question of whether the public interest can override that privilege on an application for documents under the FOI Act.

Background

In 2001, the Victorian Governor refused a petition for mercy by Heather Osland, who was convicted of murdering her husband. In a press release, the Attorney-General said he had recommended that the Governor refuse the petition based on an advice provided by three senior lawyers, which 'recommend[ed] on every ground that the petition should be denied'.

Ms Osland applied under the Freedom of Information Act 1982 for access to the joint advice and other advices obtained regarding her petition. She argued that legal professional privilege in the advices had been waived by the Attorney-General's press release. The VCAT found that, while privilege had not been waived, the public interest required the documents to be released. The Court of Appeal found that privilege was not waived and, in any event, that the public interest did not override the privilege. The Court of Appeal did not look at the disputed documents. Ms Osland appealed to the High Court.

Decision of High Court

The High Court found on a majority of 6:0 that the privilege was not waived, but found on a majority of 5:1 that the Court of Appeal ought to have considered the documents before making its decision on the public interest override. On this basis, it allowed the appeal.

Waiver of privilege

The High Court's decision confirms that an agency may unintentionally waive the privilege in a document, if it behaves in a way that is inconsistent with maintenance of the confidentiality in the document. An agency might do this simply by disclosing some but not all of the contents of a piece of legal advice or other privileged document. Whether such disclosure will waive the privilege depends on the circumstances of the case. In this case, the Attorney-General's press release did not amount to a waiver.

Public interest override

The High Court also held that the Court of Appeal should have looked at the documents in deciding whether the public interest overrode the privilege.

The High Court noted that VCAT's reasons in the original decision suggested that there might be an inconsistency between the joint advice and another of the advices obtained by the Attorney-General. The Court held that this inconsistency, if it existed, might have been relevant to the question of whether the public interest required the documents to be released. This could only be determined by the Court of Appeal properly by looking at the documents.

Interestingly, it is our understanding that neither party put the disputed documents before the Court of Appeal. Nevertheless, the High Court has ordered that the Court of Appeal reconsider the matter.

For more information, please contact:

Rachel Walsh, Partner
Tel: +61 3 9274 5223
rachel.walsh@dlaphillipsfox.com

Hannah Brown, Lawyer
Tel: +61 3 9274 5047
hannah.brown@dlaphillipsfox.com