Attorney-General for the State of South Australia v Seven Network (Operations) Ltd

The Attorney-General for the State of South Australia sought judicial review of a decision by the Ombudsman, who had granted Seven Network (Operations) Ltd access to legal advice prepared by the then Solicitor-General concerning a petition for mercy. The matter came before the Full Court of the Supreme Court of South Australia, which was asked to determine several questions of law reserved by the President of the South Australian Civil and Administrative Tribunal.

The central legal issues revolved around the interpretation of exemptions under the *Freedom of Information Act 1991* (SA). Specifically, the court had to consider whether a document subject to legal professional privilege, as defined in clause 10 of Schedule 1, was automatically exempt, and if so, whether the Ombudsman could consider issues of waiver. Additionally, the court was required to determine the scope of the Ombudsman's considerations when assessing whether disclosure of an internal working document, under clause 9 of Schedule 1, would be contrary to the public interest, including whether the Ombudsman could consider analogous obligations on prosecutors.

The Full Court held that for a document to be exempt under clause 10, it must be a document that *would be* privileged from production in legal proceedings. However, the Ombudsman is permitted to consider questions of waiver in such circumstances and is not automatically required to deem the document exempt simply because it would ordinarily attract privilege. Furthermore, when considering waiver, the Ombudsman is entitled to take into account considerations of fairness to persons other than the applicant. Regarding clause 9, the court clarified that while the Ombudsman is not strictly required to take into account the nature of the document, the identity of its author and recipients, or the preservation of confidentiality for frankness, these factors may be considered. The court also affirmed that the Ombudsman was entitled to give weight to a supposed analogous obligation on prosecutors to disclose legal advice as part of their duty of disclosure.

The court answered the reserved questions accordingly, with a key affirmative answer to Question 5, indicating that the Ombudsman was entitled to give weight to the analogous prosecutorial disclosure obligation when assessing public interest under clause 9.