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]
In law, common law is that body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.
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]
Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania and numerous smaller islands. It is the largest country in Oceania and the world's sixth-largest country by total area. The neighbouring countries are Papua New Guinea, Indonesia and East Timor to the north; the Solomon Islands and Vanuatu to the north-east; and New Zealand to the south-east. The population of 25 million is highly urbanised and heavily concentrated on the eastern seaboard. Australia's capital is Canberra, and its largest city is Sydney. The country's other major metropolitan areas are Melbourne, Brisbane, Perth and Adelaide.
England is a country that is part of the United Kingdom. It shares land borders with Wales to the west and Scotland to the north-northwest. The Irish Sea lies west of England and the Celtic Sea lies to the southwest. England is separated from continental Europe by the North Sea to the east and the English Channel to the south. The country covers five-eighths of the island of Great Britain, which lies in the North Atlantic, and includes over 100 smaller islands, such as the Isles of Scilly and the Isle of Wight.
Canada is a country in the northern part of North America. Its ten provinces and three territories extend from the Atlantic to the Pacific and northward into the Arctic Ocean, covering 9.98 million square kilometres, making it the world's second-largest country by total area. Canada's southern border with the United States, stretching some 8,891 kilometres (5,525 mi), is the world's longest bi-national land border. Its capital is Ottawa, and its three largest metropolitan areas are Toronto, Montreal, and Vancouver. As a whole, Canada is sparsely populated, the majority of its land area being dominated by forest and tundra. Consequently, its population is highly urbanized, with over 80 percent of its inhabitants concentrated in large and medium-sized cities, with 70% of citizens residing within 100 kilometres (62 mi) of the southern border. Canada's climate varies widely across its vast area, ranging from arctic weather in the north, to hot summers in the southern regions, with four distinct seasons.
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 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 or by third parties. Doctor–patient confidentiality, attorney–client privilege, priest–penitent privilege, and bank–client confidentiality agreements are examples, often not enshrined in a written contract between the parties.
In the law of the United States, attorney–client privilege or lawyer–client privilege is a "client's right privilege 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 access or places restrictions on 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.
In law, a settlement is a resolution between disputing parties about a legal case, reached either before or after court action begins. The term "settlement" also has other meanings in the context of law. Structured settlements provide for future periodic payments, instead of a one time cash payment.
A subpoena duces tecum, or subpoena for production of evidence, is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial.
A shield law is legislation designed to protect reporters' privilege. This privilege involves the right of news reporters to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process. Currently the U.S. federal government has not enacted any national shield laws, but most of the 50 states do have shield laws or other protections for reporters in place.
The Freedom of Information Act 2000 (c.36) is an Act of Parliament 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 geo-located in Scotland. The Act implements a manifesto commitment of the Labour Party in the 1997 general election, developed by Dr David Clark as a 1997 White Paper. The final version of the Act is believed to have been diluted from that proposed while Labour was in opposition. The full provisions of the act came into force on 1 January 2005.
United States v. Reynolds, 345 U.S. 1 (1953), is a landmark legal case in 1953 that saw the formal recognition of the State Secrets Privilege, a judicially recognized extension of presidential power.
The clergy–penitent privilege, clergy privilege, confessional privilege, priest–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. The law recognises certain communication as privileged and not subject to otherwise obligatory disclosure; for example, this often applies to communications 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 are required to confess 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 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, 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.
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.
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 the attorney–client privilege. Under “common interest” or “joint defense” doctrine, parties with shared interest in actual or potential litigation against 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.”
The Justice and Security Act 2013 is an Act of the Parliament of the United Kingdom, firstly to provide for oversight of the Security Service (MI5), the Secret Intelligence Service (MI6), the Government Communications Headquarters (GCHQ) on intelligence or security matters. Secondly the bill proposes to provide for the establishment of closed material procedures (CMP) in relation to certain civil proceedings. Thirdly to prevent the making of court orders for the disclosure of what the government deems to be sensitive information. The Bill was published as a Justice and Security Green Paper on 3 October 2011. It was presented to Parliament on 28 November 2012. It completed its House of Lords Committee stage on 7 February 2013. It had its second reading debate on 18 December 2012, and its third reading and report stage on 7 March 2013.
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 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.
