Request for legal opinion regarding first application to be granted by Minister under section 188 of the Resource Management Act

Request for legal opinion regarding first application under s 188 of Resource Management Act to be granted by Minister—information withheld under s 9(2)(h)—no waiver—no countervailing public interest considerations warranting disclosure

An association made a request for information held by the Ministry for the Environment in relation to an application under section 188 of the Resource Management Act for approval as a Heritage Protection Authority. The requester, acting for the owners of the land in question, was provided with some information but sought a review of the decision to withhold certain other information in reliance upon section 9(2)(h) of the OIA.

The information at issue was a legal opinion, the letter requesting that opinion and parts of a briefing note to the Minister for the Environment which referred to the legal advice received. The information was therefore subject to solicitor/client privilege.

The first question to be addressed therefore was whether it was necessary to withhold the information in order to maintain that privilege. The requester had suggested that any privilege attaching to the information had been waived, first, by the inclusion in the material which had been released of references to the information which had been withheld, and secondly, by the Minister in a letter published in a newspaper.

However, the only reference to the legal opinion in the briefing note was to the effect that an opinion had been obtained which addressed some of the matters raised. The only other reference to the legal opinion had been in a telephone conversation between the requester and a Ministry official when the fact that a legal opinion had been obtained was mentioned.

These bare references to the existence of privileged information could not be said to amount to waiver. As observed in Buttes Gas and Oil Co v Hammer (No.3) [1980] 3 All E 475:

… a bare reference to a document in a pleading does not waive any privilege that may attach to it, but if the document is reproduced in full in the pleadings then its confidentiality is gone …  

The Minister’s letter made no reference to his comments being based on any legal advice received. In these circumstances, it was necessary to withhold the information in order to maintain legal professional privilege.

The requester was of the view that as this was the first application under section 188 of the Resource Management Act to be granted by the Minister, and given the effects of the Minister’s decision on his clients’ rights as landowners, there was a strong public interest, in terms of section 9(1), in the advice given to the Minister as to the interpretation and application of the relevant parts of the Act being made available for public scrutiny and possible challenge. These comments were not seen as raising public interest considerations of a strength sufficient to outweigh the established need to withhold the information. Furthermore, it was noted that judicial review proceedings in respect of the Minister’s decision were about to be filed in the High Court and this would enable the issues of concern to the requester to be raised and addressed in the appropriate forum.

It was necessary to withhold the information in terms of section 9(2)(h) and there were no countervailing public interest considerations in terms of section 9(1) which outweighed that need.  

This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. 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.