Where a solicitor is retained by a government agency in a dual capacity (as both lawyer and consultant), the terms of the retainer are critical in determining whether communications attract legal professional privilege; if the retainer addresses policy and administrative matters rather than legal advice, the documents will not attract privilege even if the author is a qualified solicitor. The Howard Factors formulated in Re Howard should not be applied mechanistically in the public interest balancing exercise under cl 9(1)(b) of the FOI Act; agencies must demonstrate a factual basis for claims that disclosure would be contrary to the public interest. Where a secrecy provision contains qualifications, exceptions or excuses that would permit disclosure, cl 12(2) of Sch 1 of the FOI Act operates to remove the exemption that would otherwise arise under cl 12(1).
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