New Zealand Law Society - Ombudsman case note says Callinan Bain compo report legally privileged

Ombudsman case note says Callinan Bain compo report legally privileged

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A case note by Chief Ombudsman Peter Boshier on the report by Ian Callinan QC on David Bain's compensation claim says the report was legally privileged and the need to withhold it was not outweighed by the public interest in disclosure.

Retired Australian judge Ian Callinan delivered his report on compensation to Justice Minister Amy Adams in January 2016. A requester sought a copy of the report in February 2016. That month a newspaper reported the alleged conclusion of the report, saying it had been leaked.

Ms Adams refused the request for the report, relying on section 9(2)(h) of the Official Information Act 1982, because withholding was necessary to "maintain legal professional privilege".

Judge Boshier says having considered the content of the information at issue, he formed the opinion that the Minister's clear purpose in commissioning the Callinan report was to seek legal advice that would, in turn, enable her to advise Cabinet on the claim. 

"The questions addressed in the Callinan report were inherently legal questions, and the conclusions therefore legal advice. The fact that it was Cabinet that would make a final decision on Mr Bain's claim did not affect the nature of the advice to the Minister."

Noting that in certain circumstances, release of information in respect of which legal professional privilege might have been claimed can amount to waiver of that privilege, Judge Boshier says involuntary disclosure - such as leaking of an otherwise legally privileged document - does not as such amount to waiver of the privilege or mean the privilege is lost.

"The strength of legal professional privilege has often been recognised by the Courts and its principles are well settled. The requester provided no evidence indicating the Minister (or anyone on her behalf) waived the Crown's privilege in the Callinan report, and the Minister assured the Chief Ombudsman she had not done so. 

"Whether waiver has occurred, as the Court of Appeal stated in Ophthalmological Society of New Zealand Inc v Commerce Commission Inc [2003] 2 NZLR 145 involves an assessment of whether a party's use of privileged material destroyed its confidentiality or unfairly abused the privilege. There was no evidence that the Minister acted in that way."

Considering whether legal professional privilege was outweighed by the public interest, the Chief Ombudsman says while the requester and the general public may well be interested in the nature and content of the Callinan report, that is not the test in terms of section 9(1). The Minister is also entitled to seek legal advice to assist her thinking as to how she should address the question of compensation and formulate her advice to her Cabinet colleagues.