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Ombudsman considers withholding of legal opinions

08 March 2016

Chief Ombudsman Peter Boshier has published his findings on a Ministry of Health decision to refuse a request from a university senior health researcher for copies of two legal opinions.

Judge Boshier recommends that the ministry releases the opinions.

Professor Cindy Farquhar of Auckland University had designed a study protocol for a randomised clinical trial in fertility treatments, known as the DOT study. She inquired about making an ethics application for the study and this was referred to the Ethics Committee on Assisted Reproductive Technology (ECART).

The Ministry of Health obtained legal opinions from Health Legal and Crown Law and gave these to ECART, which declined Professor Farquhar's application.

The legal opinions were to clarify the interpretation of the statutory term "uses" in section 5 of the Human Assisted Reproductive Technology Act 2004.

Professor Farquhar then requested all information which the ministry had obtained and used in forming its views.

While the ministry released some information, it relied on section 9(2)(h) of the Official Information Act 1982 to withhold legal advice held by the ministry, in order to maintain legal professional privilege.

Noting that he was not required to form an opinion on the correctness of the legal advice, but to form an opinion in whether the public interest in the legal advice overrides the public interest in the maintenance of legal professional privilege, Judge Boshier finds in favour of the significant public interest in release of the information.

"The public interest in the maintenance of legal professional privilege will only ever by outweighed where a greater public interest in disclosure is demonstrably clear," he says.

"In other words, although the very high public interest in legal professional privilege is well recognised, under the Official Information Act, it is not absolute."

Judge  Boshier says that by deciding to make the maintenance of legal professional privilege subject to section 9(1), Parliament expressly signalled that there will be occasions where the public interest in the disclosure of the legal advice outweighs legal professional privilege.

"My opinion does not focus on whether this is an exceptional case. Instead, I have considered the purpose for which the opinions were sought, and supplied, that is their context, their contents, and the use to which they have been put."

The Chief Ombudsman says this follows the general principle of legal professional privilege - that every application of professional legal privilege must depend on the facts of the case and the context in which the legal advice was sought.

"There will be occasions, such as in an individual contentious situation where litigation is imminent, when the privilege is so sensitive and important for the maintenance of confidence and trust that the maintenance of the privilege will always outweigh an alternative public interest. There will be other occasions where a legal opinion is a statement of the law, rather than legal advice on particular facts in a sensitive context."

The purpose of the two legal opinions was to provide advice to a regulatory agency on the interpretation of a statutory term, and the ministry's requests for legal advice were unremarkable.

Judge Boshier says he is persuaded that the competing public interest in this complaint overrides the need to maintain legal professional privilege which would otherwise provide good reason for withholding the information under section 9(2)(h).

Last updated on the 16th September 2019