Wednesday, March 09, 2016

We have a right to know what the law means

There's an interesting opinion out from the Ombudsman today on legal professional privilege. Normally legal privilege is one of the stronger withholding grounds in the OIA, reflecting the strong public interest in agencies being able to take legal advice. But in a case stemming from a refused authorisation for an in-vitro fertilisation study, the Ombudsman has overturned it on public interest grounds largely because of the type of advice sought:

In considering the weight to be accorded to the protection of legal professional privilege when balancing this against the public interest in release, the Chief Ombudsman distinguished between legal advice provided for the purpose of specific, contentious, proceedings and advice to a regulatory agency on the interpretation of a key term in the governing statute. The Chief Ombudsman considered that the research being conducted by the requester, and others in the field, was a matter of considerable public importance and interest and that, in these circumstances, it was incumbent on the Ministry to do everything it could to assist in the adoption of correct procedures by ensuring that the best, first hand information was made available.

[Emphasis added]

Or, to put it another way, we have a right to know what the law means. An agency shouldn't be able to interpret the law in secret and make decisions based on those secret interpretations. And while the Ombudsman was talking specifically about regulatory agencies (for whom interpretations of key terms are akin to the judgement of a court), that general principle, that we should be able to find out what the law means so that we can conform to it, surely applies to the secret interpretations of other agencies as well.