Request for ACC notice board bulletin
Requester sought a copy of ACC notice board bulletin - bulletin contains commentary and advice on various court decisions - prepared by practising solicitor in his professional capacity - purpose is to give general legal advice to case managers who routinely request and rely upon it - refused under s 9(2)(h) - legal professional privilege applies - no waiver even though it was distributed widely amongst ACC staff - marked confidential and subject to privilege - no public interest in release that outweighed strong public interest in ensuring privilege is maintained.
A lawyer wrote to the Accident Compensation Corporation (ACC) requesting a copy of a notice board bulletin on the suspension of entitlements from ACC. This bulletin is distributed to ACC staff by its legal department and provides commentary and advice on various Court decisions.
ACC refused this request under section 9(2)(h) of the OIA on the grounds that it was necessary to withhold the information contained in the bulletin in order to maintain legal professional privilege.
The requester then wrote to the Ombudsman asking him to investigate this decision on the basis that either the information was not subject to legal professional privilege or, even if it was, there was an overriding public interest which favoured release of the information.
The Ombudsman asked ACC for both a copy of the bulletin at issue and a report explaining ACC’s concerns with release. Given ACC’s reliance on section 9(2)(h), the Ombudsman asked that the report include details as to whether the information in the bulletin was provided by a practising lawyer in his or her professional capacity, what the purpose of the bulletin was, and whether all ACC staff had access to it.
ACC provided the Ombudsman with a copy of the bulletin. The Ombudsman noted that it is published quarterly by ACC’s Legal Services Department and comprises:
a precis of the background to court cases that the Department considered might be of interest to the branch network;
a summary of the Court’s findings; and
commentary on ACC’s position and management of the case, as well as direction regarding future claims handling decisions.
ACC advised that:
All commentaries were provided by ACC’s legal adviser in his professional capacity as a practising solicitor.
The purpose of the bulletin was to give legal advice on both the interpretation of relevant court decisions and how ACC personnel might apply them.
Case managers routinely request and rely upon legal advice of this nature from the Department.
The advice is given specifically to ACC’s personnel. If released to the public, ACC would frame the advice differently.
The Ombudsman also noted the Court’s comments in Balabel & Anor v Air India that legal professional privilege is ‘not limited to a specific request from the client for legal advice and the legal advice in reply. It includes a continuum of information passing between the two to keep each other informed so that advice may be sought and given as required’.
The Ombudsman then considered whether waiver of the privilege had occurred in the circumstances of this case. He noted that a general waiver of privilege can occur if the privileged information is disclosed to the world at large or in circumstances where the disclosure is such that it would be unfair to allow the privilege holder to continue to be able to rely on it (such as when there has been sufficient disclosure to the party seeking the information). In this case, the Ombudsman noted that the information had not been released to the complainant in any form and although it had been made available to ACC staff members, it was clearly marked as confidential advice subject to legal professional privilege.
The Ombudsman was satisfied that legal professional privilege attached to the information requested on the basis that the bulletin comprises communication between ACC’s Legal Department and ACC staff relating to the giving of confidential advice. Further, as the information was made available only to ACC staff members under legal professional privilege and ACC is the client, the Ombudsman did not consider waiver had occurred.
Finally, the Ombudsman considered whether the interest in withholding the information to maintain legal professional privilege was outweighed by other considerations that would render it desirable, in the public interest, to make it available. The general approach taken by the Ombudsman is that legal professional privilege is a ‘fundamental element in the administration of justice’. As such, the public interest in ensuring maintenance of the privilege is considered very high and any countervailing public interest considerations that might outweigh it would therefore need to be particularly strong.
The complainant suggested that there was a public interest favouring release given the current corporate culture within ACC. When asked to expand on this, the complainant advised the Ombudsman that, in his view, there was a strong public interest in ensuring that ACC acts in accordance with its legislation. In particular, the complainant noted that the subject matter of the legal advice in the bulletin deals with the suspension of entitlements and he considered it was important to know to what purpose the legal information is put, and how it is used, by whom and under what verifiable guidelines or policies.
The Ombudsman acknowledged that the functions of ACC include providing entitlements under the relevant legislation and he noted that section 132(2) of the 1972 ACC Act and section 187(2) of the 1982 ACC Act (among other provisions) both allow for the suspension of entitlements in certain circumstances. However, the mere fact that the legal advice in the bulletin deals with the suspension of entitlements was not, in itself, grounds for questioning the nature of the advice given, or its use, in the public interest.
Further, even if the advice was either incorrect or incorrectly applied, the Ombudsman noted that there was a remedy by way of appeal against ACC’s decisions. It was the Ombudsman’s view that this appeal right meets the public interest in ensuring that ACC acts in accordance with its legislation.
The Ombudsman was unable to identify any public interest in release of the information which outweighed the strong public interest in maintaining the legal professional privilege. As a result, it was the Ombudsman’s view that ACC was entitled to withhold the information under section 9(2)(h).