Legal professional privilege outweighed by significant public interest in release of information

Health researcher Professor Cindy Farquhar complained about a decision made by the Ministry of Health (the Ministry) to refuse her request for a copy of two legal opinions, one from Health Legal, the other from Crown Law (the legal opinions). The Ministry had sought this legal advice to clarify the interpretation of the statutory term ‘uses’, referred to in section 5 of the Human Assisted Reproductive Technology Act 2004 (HART Act). The Ministry then provided the legal opinions to the Ethics Committee on Assisted Reproductive Technology (ECART). ECART considered, in light of this advice, whether Professor Farquhar’s proposed Day of Transfer study (DOT study) would involve the ‘use’ of embryos and concluded that it would. ECART therefore declined Professor Farquhar’s application to proceed with the DOT study until such time as guidelines had been agreed by the Advisory Committee for Assisted Reproductive Technology) (ACART).

Based on the information before me, I have formed the opinion that section 9(2)(h) of the Official Information Act 1982 (OIA) does not provide good reason to withhold the legal opinions by virtue of section 9(1). It is my opinion that the interest to be protected is, in this instance, outweighed by other public interest considerations favouring disclosure of the information. I have not formed that opinion lightly as, given the strength of the public interest in the maintenance of legal professional privilege, it will be rare for other public interest considerations to be seen as sufficiently strong to outweigh the need to maintain the privilege.

It is my recommendation that the Ministry release the legal opinions to Professor Farquhar.