(CNS): Acting Information Commissioner Jan Liebaers has raised concerns that public authorities could hide behind the claim of legal privilege to block his office from controversial documents that become the subject of an appeal due to a recent legal decision. The governor’s use of the ‘nuclear option’ to prevent him from seeing the Ritch Report last week now leaves him no legal means of accessing that document, but he told CNS he would still like to appeal the chief justice’s earlier ruling to address much wider questions relating to freedom of information that it raises.
This battle is not about the release of the increasingly controversial document relating to the government’s immigration policy, as that now will not happen, but whether the information commissioner will in the future be able to see disputed records when an agency claims legal privilege.
“The main worry is that the chief justice’s ruling gives public authorities a blank cheque to claim legal privilege, and I would not even be in a position to verify whether the exemption actually applies,” he said. “That sort of loophole could easily be abused and the ICO would not be able to do anything about it.”
Liebaers pointed out that legal privilege has been wrongly claimed in the past by several public authorities trying to keep documents out of the public domain on numerous occasions, but due to his determination they were eventually released because they did not fall within the definition of the law of what is legally privileged.
Until he began the appeal hearing regarding the two FOI requests that had been made for the Ritch Report, Liebaers had seen all the documents involved in appeals, even where he has determined that the records should not be released. The basic issue for his office is that he needs to be able to make the determination in every case but the ruling by the chief justice could put a stop to that.
Given that the decision will set legal precedent and have long-term implications for the entire freedom of information system, Liebaers said it was important to get some questions that have been raised by this case answered. “It’s now or never,” he warned, pointing out that the court had ruled without any argument or hearing from the parties involved.
He noted that it had raised many legal issues that the Court of Appeal needs to look at before the precedent is set, paving a way for possible abuse in future.
Governor Helen Kilpatrick’s decision to issue her certificate has ended the commissioner’s hopes of ever seeing the Ritch Report but he has even more concerns that it may have ended his chances of getting the legal queries that are important to the law in general answered as well.
Liebaers said the governor did not tell him before she took the ‘nuclear option’ and fired off the certificate, even though his office was filing an appeal. He said that no one had offered him any reasons why she issued the certificate or asked his office why he felt the need to appeal, despite the importance to the application of the freedom of information law.