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Production or discovery of official documents in legal proceedings

8.86 Official documents, including Cabinet records, may be relevant to legal proceedings. If so they are likely to be included in the discovery process and may be produced in court.

8.87 When the discovery or production of official papers is sought for the purposes of legal proceedings, a claim of public-interest immunity may need to be considered. The justification for such a claim can be assessed only on a case-by-case examination of relevant documents. Sometimes there may be a conflict between the demands of the courts for evidence and the need to ensure the security of Cabinet proceedings or confidential departmental matters. If there is any doubt, the relevant Minister or department should seek advice from the Crown Law Office.

8.88 In line with the philosophy of the Official Information Act, the law relating to public-interest immunity as a means of protecting government documents has moved significantly in favour of disclosure. Cabinet documents do not occupy any specially privileged position. In a case where public interest immunity is claimed, the court may examine the documents in order to be satisfied, in respect of each document, that the claim to immunity should be upheld.

8.89 Where Cabinet documents dating from a previous administration are required for discovery or production in legal proceedings, the Opposition will need to be consulted, according to the procedure set out in paragraph 8.134.

Last updated: 
Saturday, 24 June 2017

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