Freedom of Information – Lessons from the Full Court of the Supreme Court

In Attorney-General for the State of South Australia v Seven Network (Operations) Ltd [2019] SASCFC 36, the Full Court of the Supreme Court of South Australia was asked to consider a number of questions of law regarding the disclosure of documents under the Freedom of Information Act 1991 (the FOI Act).

It is rare we see a Full Court judgement on the nitty gritty of the FOI Act. This case is particularly interesting because it involves an alleged murder and legal advice prepared by the then Solicitor-General, Mr Chris Kourakis QC, who is now the Chief Justice of the South Australian Supreme Court.

Background

Mr Henry Vincent Keogh was convicted of murder by the Supreme Court of South Australia. Mr Keough sought that the Attorney-General refer his case to the Full Court of the Supreme Court by petition to the Governor of South Australia, Mr Keogh’s third petition for mercy. The Attorney-General sought advice from the then Solicitor-General in relation to the petition. The advice was prepared and provided to the Acting Premier and Acting Attorney-General, the Honourable Kevin Foley MP. In a press release statement and later press conference, Mr Foley announced Mr Keogh’s third petition for mercy had been refused, providing reasons for the decision that referenced the legal advice. Mr Keough’s conviction was eventually set aside by the Court of Criminal Appeal.

Over a decade later, Seven Network (Operations) Ltd (Seven Network) made an application under the FOI Act to the Attorney-General’s Department for a copy of the legal advice. A delegate of the Attorney-General made a determination refusing access to the report and Seven Network sought an internal review, resulting in the same determination. Seven Network applied to the Ombudsman for an external review, who ultimately reversed the determination of the Attorney-General’s Department.

Legal Professional Privilege

The Attorney-General appealed this matter to the Supreme Court arguing, that legal professional privilege had not been waived by commenting on the legal advice in a press conference and that disclosure of the legal advice had the potential to prejudice the capacity of the State to defend its interests.

The Ombudsman had concluded the limited disclosure of the advice was inconsistent with the maintenance of the privilege and had placed Mr Keogh at a forensic disadvantage. The Full Court supported this decision, stating a determination of whether privilege has been waived should take ‘into account the conduct of the privilege-holder after the creation of the document'.

Accordingly, when an FOI Officer is considering potentially privileged documents, the FOI Officer must also consider whether voluntary waiver of privilege has occurred. This may include a privilege-holder disclosing the gist or conclusion of legal advice either expressly, implicitly, or by imputation.

Given councils are often in receipt of legal advice, this case is an important reminder to ensure care is taken when handling privileged information. An accidental waiver of privilege may render the entire advice no longer exempt under the FOI Act. Norman Waterhouse are happy to assist you in preparing press releases that protect your legal professional privilege.

Internal Working Documents

The Ombudsman had considered whether the advice was protected by the ‘internal working documents’ exemption afforded under Clause 9 of Schedule 1 to the FOI Act, and deemed the advice was not protected as he was not satisfied that its disclosure would, on balance, be contrary to the public interest. The Full Court upheld this decision, finding some facets of the public interest would indeed favour disclosure of the document.

The ‘public interest test’ applies not only to the internal working documents exemption, but to various other exemptions under the FOI Act. FOI Officers must have an understanding of how the public interest test is applied. While the Full Court in this case has stated the following factors are not required to be taken into account, they may assist decision makers in making a determination on public interest, this includes:

• the nature and sensitivity of the document and its content;
• the identity and seniority of office of the author and recipients of the document; and
• the preservation of confidentiality in respect of the promotion of fairness and candour.

Take Home Message

FOI Officers must consider each document purporting to be privileged carefully and turn their mind to whether, at any time, the document or any portion of the document has been disclosed either intentionally or by accident. Further, FOI Officers should know which exemptions attract the ‘public interest test’, and should know how to apply that test.