Notes
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Under common law, public-interest privilege prevents the compulsory disclosure of documents or information which is against the public interest. There is a balance between public interests- if the public interest in secrecy is greater than the public interest in disclosure, it will be privileged. The public interest in disclosure is the principle that a court of justice ought not be denied access to relevant information, and that the opposing party should have access to all relevant information to make their case. [1]
Unlike other privileges, this right is not vested in any party or entity. The court may, of its own motion, prevent admission of evidence if it thinks it may disclose privileged information. The government need not be a party to proceedings for privilege to be raised. [2] Privilege, being vested in the public interest and not a party, cannot be waived by a party. However, if the information has been published elsewhere this is a very strong factor towards the public interest of disclosure. [3]
This privilege may be claimed on two bases. Firstly, that the documents belong to a class of documents which the public interest requires should not be disclosed. In Australia, even for documents belonging to a very high level documents, such as cabinet papers, the court must interrogate whether it really is prejudicial to the public interest to disclose it. [4] Australian judges in general have been more willing to disclose information than judges in England or Canada. [5]
When people seek to protect their narrow and private interests, it is called private-interest privilege.
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A non-disclosure agreement (NDA), also known as a confidentiality agreement (CA), confidential disclosure agreement (CDA), proprietary information agreement (PIA), or secrecy agreement (SA), is a legal contract or part of a contract between at least two parties that outlines confidential material, knowledge, or information that the parties wish to share with one another for certain purposes, but wish to restrict access to. Doctor–patient confidentiality, attorney–client privilege, priest–penitent privilege and bank–client confidentiality agreements are examples of NDAs, which are often not enshrined in a written contract between the parties.
Classified information is material that a government body deems to be sensitive information that must be protected. Access is restricted by law or regulation to particular groups of people with the necessary security clearance with a need to know. Mishandling of the material can incur criminal penalties.
Attorney–client privilege or lawyer–client privilege is the common law doctrine of legal professional privilege in the United States. Attorney–client privilege is "[a] client's right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney."
Confidentiality involves a set of rules or a promise usually executed through confidentiality agreements that limits the access to or places restrictions on the distribution of certain types of information.
Public interest immunity (PII), previously known as Crown privilege, is a principle of English common law under which the English courts can grant a court order allowing one litigant to refrain from disclosing evidence to the other litigants where disclosure would be damaging to the public interest. This is an exception to the usual rule that all parties in litigation must disclose any evidence that is relevant to the proceedings. In making a PII order, the court has to balance the public interest in the administration of justice and the public interest in maintaining the confidentiality of certain documents whose disclosure would be damaging. PII orders have been used in criminal law against large organised criminal outfits and drug dealers where the identity of paid police informants could be at risk.
In camera is a legal term that means in private. The same meaning is sometimes expressed in the English equivalent: in chambers. Generally, in-camera describes court cases, parts of it, or process where the public and press are not allowed to observe the procedure or process. In-camera is the opposite of trial in open court where all parties and witnesses testify in a public courtroom, and attorneys publicly present their arguments to the trier of fact.
Discovery, in the law of common law jurisdictions, is a phase of pretrial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from other parties by means of methods of discovery such as interrogatories, requests for production of documents, requests for admissions and depositions. Discovery can be obtained from nonparties using subpoenas. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery. Conversely, a party or nonparty resisting discovery can seek the assistance of the court by filing a motion for a protective order.
The Freedom of Information Act 2000 is an Act of the Parliament of the United Kingdom that creates a public "right of access" to information held by public authorities. It is the implementation of freedom of information legislation in the United Kingdom on a national level. Its application is limited in Scotland to UK Government offices located in Scotland. The Act implements a manifesto commitment of the Labour Party in the 1997 general election, developed by David Clark as a 1997 White Paper. The final version of the Act was criticised by freedom of information campaigners as a diluted form of what had been proposed in the White Paper. The full provisions of the act came into force on 1 January 2005. The Act was the responsibility of the Lord Chancellor's Department. However, freedom of information policy is now the responsibility of the Cabinet Office. The Act led to the renaming of the Data Protection Commissioner, who is now known as the Information Commissioner. The Office of the Information Commissioner oversees the operation of the Act.
United States v. Reynolds, 345 U.S. 1 (1953), is a landmark legal case decided in 1953, which saw the formal recognition of the state secrets privilege, a judicially recognized extension of presidential power. The US Supreme Court confirmed that "the privilege against revealing military secrets ... is well established in the law of evidence".
The clergy–penitent privilege, clergy privilege, confessional privilege, priest–penitent privilege, pastor–penitent privilege, clergyman–communicant privilege, or ecclesiastical privilege, is a rule of evidence that forbids judicial inquiry into certain communications between clergy and members of their congregation. This rule recognises certain communication as privileged and not subject to otherwise obligatory disclosure, similar to attorney–client privilege between lawyers and clients. In many jurisdictions certain communications between a member of the clergy of some or all religious faiths and a person consulting them in confidence are privileged in law. In particular, Catholics, Lutherans and Anglicans, among adherents of other Christian denominations, confess their sins to priests, who are unconditionally forbidden by Church canon law from making any disclosure, a position supported by the law of many countries, although in conflict with civil (secular) law in some jurisdictions. It is a distinct concept from that of confidentiality.
In common law jurisdictions, the duty of confidentiality obliges solicitors to respect the confidentiality of their clients' affairs. Information that solicitors obtain about their clients' affairs may be confidential, and must not be used for the benefit of persons not authorized by the client. Confidentiality is a prerequisite for legal professional privilege to hold.
In common law jurisdictions and some civil law jurisdictions, legal professional privilege protects all communications between a professional legal adviser and his or her clients from being disclosed without the permission of the client. The privilege is that of the client and not that of the lawyer.
Therapeutic privilege refers to the decision of a healthcare practitioner to withhold information from a patient when there is a justified belief that disclosure may cause serious mental or physical harm to them. As of 2022, this defence is permissible in countries such as Australia, Canada, England, Netherlands and Wales as an exception to the standard consent process. Despite this, there are very limited cases in which therapeutic privilege has been upheld. This is mainly due to the complex ethical and legal ramifications in withholding information from a patient and how to define someone as being at sufficient risk to fall into this category wherein therapeutic privilege should prevail. Another challenge in enacting therapeutic privilege is the consideration of other professionals involved in patient care, such as where there is a multidisciplinary care team. However, in withholding information, there is also a denial of patient autonomy
In England and Wales, the principle of legal professional privilege has long been recognised by the common law. It is seen as a fundamental principle of justice, and grants a protection from disclosing evidence. It is a right that attaches to the client and so may only be waived by the client.
The Buried Bodies Case, also known as the Lake Pleasant Bodies Case, is a mid-1970s upstate New York court case where defense attorneys Frank H. Armani and Francis Belge kept secret the location of the bodies of two women murdered by their client, Robert Garrow, Sr.
Civil discovery under United States federal law is wide-ranging and can involve any material which is relevant to the case except information which is privileged, information which is the work product of the opposing party, or certain kinds of expert opinions. Electronic discovery or "e-discovery" is used when the material is stored on electronic media.
The joint defense privilege, or common-interest rule, is an extension of attorney–client privilege. Under "common interest" or "joint defense" doctrine, parties with shared interest in actual or potential litigation against a common adversary may share privileged information without waiving their right to assert attorney–client privilege. Because the joint defense, "privilege sometimes may apply outside the context of actual litigation, what the parties call a 'joint defense' privilege is more aptly termed the 'common interest' rule."
Khala v Minister of Safety and Security is an important case in South African law.
Access to public information and freedom of information (FOI) refer to the right to access information held by public bodies also known as "right to know". Access to public information is considered of fundamental importance for the effective functioning of democratic systems, as it enhances governments' and public officials' accountability, boosting people's participation and allowing their informed participation into public life. The fundamental premise of the right to access public information is that the information held by governmental institutions is in principle public and may be concealed only on the basis of legitimate reasons which should be detailed in the law. Access to public information builds on the principle that in a democratic system people should be in the condition of accessing a wide range of information in order to effectively participate in public life as well as on matters affecting them.
The Evidence Act 2006 is an Act of the Parliament of New Zealand that codifies the laws of evidence. When enacted, the Act drew together the common law and statutory provisions relating to evidence into one comprehensive scheme, replacing most of the previous evidence law on the admissibility and use of evidence in court proceedings.