Monday, April 10, 2017

Chipping away at legal privilege

I had an email from the Ombudsman today, announcing that they would be requiring the Ministry of Primary Industries to release a summary of the (flawed) legal advice which led to a refusal to prosecute over Operation Achilles. I haven't got the summary itself yet, but it'll be coming, likely in the next two weeks.

Its a victory for freedom of information, but its also a sign of the changing view around legal professional privilege and the application of s9(2)(h). Once legal advice was sacrosanct and you would never get it. Agencies treated it like a conclusive withholding ground rather than one which had to be matched against the public interest. But in the last few years a series of decisions has chipped away at that. We now have a right to know what the government thinks the law means so we can understand it. And in cases where there is significant public interest in accountability, such as contentious decisions on prosecution, we now effectively have a right to a summary. The MPI decision simply confirms this trend.