Report No. 88
10.10. Communications in public service.-
The claim of privilege has been occasionally sought to be justified in circumstances where a report has been made from one public servant to another in course of his duty. The argument here is, that the report should be treated as confidential if it was prepared in conditions under which the officials making it expected it to be so treated. If confidentiality is destroyed, then the civil servant would not (it is stated) be prepared to write full and frank reports. The category can be conveniently labelled as a claim arising under the head of "public service". It would, however, appear that at the present day the privilege under this head is not recognised in England separately.
The argument that a confidential report will not be made frankly (if there is a probability of public scrutiny) has been criticised more than once by English academic writers.1 Garner suggested2 long ago that it really does not stand up to close examination, because "a civil servant should not be prepared to write a report that may be open to criticism or one that he does not wish to be examined in court (save on state security grounds)". The House of Lords, dealing with the argument that the candour of communication between civil servants might be prejudiced if a privilege is not recognised observed in Conway's case3 as under:-
"It is strange that civil servants alone are supposed to be unable to be candid in their statements made in the course of duty without the protection of an absolute privilege denied to their other fellow subjects".
1. For example, Ingris Bell in (1957) Public Law.
2. Garner Administrative Law, (1967), p. 252-a view repeated in later edition.
3. Conway v. Rimmer, (1968) 1 All ER 874 (919, 967) (HL).