Request for advice to Solicitor-General by crown lawyer

Legal professional privilege
Legislation:
Official Information Act 1982
Section 9
Legislation display text:
Official Information Act 1982, s 9(2)(h)
Agency:
Crown Law Office
Ombudsman:
Sir Brian Elwood
Case number(s):
W40657
Issue date:
Language:
English

Request for advice to Solicitor-General by in-house Counsel of Crown Law Office—reasons for refusal of consent to prosecution—information covered by legal professional privilege—weight of public interest in Solicitor General’s reasons—distinction between factors taken into account and legal advice—protection of legal professional privilege not outweighed

The requester sought information from the Solicitor-General as to why he declined to give his statutory consent for a certain prosecution. The Solicitor-General withheld some information in reliance upon section 9(2)(h) of the OIA. This consisted of legal advice provided to him by in-house legal counsel of the Crown Law Office.

It is well established that Government departments and Ministers have the same rights to obtain confidential legal advice as private organisations. For the purposes of the application of legal professional privilege, it is immaterial whether the lawyer providing the advice is in independent practice or is employed in-house. Although the Solicitor-General is a qualified lawyer, he is as entitled to seek his own legal advice as any other head of a Government department. The fact that he may be in a position to evaluate such legal advice in a more informed fashion than a person who is not legally qualified does not affect the issue. In the circumstances, section 9(2)(h) applied to the information at issue.

The requester submitted that there was a countervailing public interest consideration which outweighed the foregoing reason to withhold, namely that the public interest required the reasons for the Solicitor-General’s decision in the matter to be known. However, the disclosure of the factors taken into account by the Solicitor-General was separate from the issue of disclosure of any legal advice that may have been proffered to him. Any public interest in disclosure of the reasons for the Solicitor-General’s decision did not depend upon the release of legal advice received by him.

In all the circumstances, the reason to withhold the information was not outweighed by other considerations which rendered it desirable in the public interest to make the information available.

Comment

The matter in question had received considerable media attention, and the Solicitor-General had issued a detailed press release to announce his decision and the reasons for it. Any public interest consideration in terms of the accountability of the Solicitor-General for his decision had substantially been met.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

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