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Annual Report of the Ombudsman 2003

Chapter 4 - The Ombudsman and Legal Professional Privilege

The Ombudsman and Legal Professional Privilege

The Ombudsman Act, 1980 gives me the power to see all information which I consider to be of relevance in examining a case. For example, the Act specifically provides that Departments may not claim legal professional privilege in order to deny me access to their legal advice. It seems that there may be some confusion on this point in some Departments.

During the year I requested a copy of legal advice received by the Department of Communications, Marine and Natural Resources in relation to a complaint made against that Department. The Department initially refused to supply this advice on the basis that the legal advisor had indicated that it was entitled to refuse my request. The legal advisor claimed that, notwithstanding the terms of the Ombudsman Act ,1980 such legal advice was subject to legal privilege. In the event, the advice was eventually supplied to my Office but only on the basis that a previous advice on the particular complaint had already been supplied. The Department was nevertheless of the view that, in providing this advice on this occasion, this did not count as a precedent.

I consider it very important to remind Departments that the terms of the Ombudsman Act, 1980 are quite specific and unambiguous in stating that:

"Any obligation to maintain secrecy or other restriction upon the disclosure of information obtained by or furnished to a Department of State or civil servant imposed by the Official Secrets Act, 1963 shall not apply to an examination or investigation by the Ombudsman under this Act, and ..... the State shall not be entitled in relation to any such examination or investigation to any such privilege in respect of the production of documents or the giving of evidence as is allowed by law in legal proceedings."

Section 7 (1) (a) of the Act also provides that;

"The Ombudsman may, for the purposes of a preliminary examination, or an investigation, by him under this Act, require any person who, in the opinion of the Ombudsman, is in possession of information, or has a document or thing in his power or control, that is relevant to the examination or investigation to furnish that information, document or thing to the Ombudsman and, where appropriate, may require the person to attend before him for that purpose and the person shall comply with the requirements."

In this specific case I am concerned that the Department and its legal advisor do not recognise that the provisions of the Ombudsman Act give me the clear right to see legal advice in order that I can conduct a full examination of a complaint.

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