SA District Court finds Ombudsman erred on privilege law

One of the issues mentioned in the recent post about Freedom of Information issues in the South Australian Ombudsman's Annual Report has been the subject of a decision by Judge Herriman of the District Court in Legal Practitioners Conduct Board v Wharff [2009] SADC 126, an appeal against findings arising from an investigation by the Acting Ombudsman of a complaint about refusal of access to documents. After years of contention and rejection of the idea, the Conduct Board appears to have accepted [19-20] that it is an agency for the purposes of the SA FOI Act as the issue was not argued in the proceedings. (I notice the status of similar bodies under FOI is a current hot issue in far away Scotland.)

The important issues in the decision concern legal privilege. Judge Herriman was not satisfied [55] the Acting Ombudsman correctly applied the law in reaching his determination and made orders remitting the matter for redetermination in accordance with guidance provided [60] on the proper application of the law concerning privilege. Included in the judgment are these observations :

No severability in common law privilege

"It is not, therefore, appropriate to look at challenged factual material from the standpoints that (a) some part of it is not legal advice or (b) it has been ascertained by the author or by others in circumstances which did not themselves attract privilege or (c) it contains material put there for a separate purpose. If a court is satisfied that the dominant purpose of a communication otherwise meets the required test then, ordinarily, the entire document will enjoy privilege and no question of severability should arise."

The SA FOI Act enshrines a different notion

Judge Herriman [60(2)] was

"not satisfied that the exemption test applicable under clause 10(1) of the FOI Act is equivalent to or co-extensive with (common law privilege.) Had the legislators intended such a result, they might simply have said so. Indeed, the Commonwealth Freedom of Information Act 1993 expressly provides (s 42(1)):

A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

But here, clause 10 provides that a document is exempt if ‘it contains matter that would be privileged’ on the ground of legal professional privilege. That phrase appears to me to introduce a concept that common law authorities have not squarely dealt with. They focus upon the question of whether a whole document is privileged, not on whether ‘matter’ contained within it might be....

It appears to me that the legislature has here (in clause 10) embraced a form of exemption that is considerably wider than that which would apply at common law. It looks not at the dominant purpose of the document itself but, rather, whether there is matter contained within it that would be privileged.

Under the FOI Act where part of a document contains privileged matter, the entire document is exempt

"..if a discrete part of a document can be so characterised, then the whole document can be said to ‘contain’ privileged material and a clause 10 exemption ought be available, notwithstanding that the dominant purpose of its creation as a whole document may not otherwise satisfy the common law test."

(Comment:I can't recall this issue arising elsewhere in jurisdictions that use the same formulation in FOI legislation, but would be interested in any comments.)

Judge Herriman found that the Acting Ombudsman had erred in law in addressing issues about whether privilege properly applied to agenda papers prepared for Board consideration in disciplinary proceedings:

"Once he found certain parts of an agenda did contain legal advice, the basis for a clause 10(1) exemption necessarily emerged and he erred in then proceeding to determine the matter by considering the dominant purpose of the whole document. Further, he did not properly direct his mind as to whether such material amounted to ‘evidence gathered for the purpose of litigation’

Judge Herriman added that if the FOI privilege and common law were co-extensive, the Ombudsman had "wrongly failed to consider the appellant’s argument that some factual matters in the agenda were necessarily intertwined with legal advice and should therefore also be part of any privilege claim"; had "misapplied the law and applied too narrow a test in approaching litigation privilege on the footing that ‘the dominant purpose test aside’, it could not be said that the documents in question could be ‘used in or aid the conduct of litigation’;and had "failed to turn his mind to the distinction between documents prepared by solicitors employed by the Board in the exercise of investigatory and legal advisory functions."

There were also errors in the way the Acting Ombudsman had addressed the public interest test in connection with a claim for exemption of internal working documents.