public/privileged documents

Public officers are under an obligation to produce public documents or give information in their custody where the requisite application for same is met, except where such information affects public interest and its disclosure or production is restricted. Information disclosed to public officers in their official capacity is privileged information as such they cannot be compelled to disclose same when in their discretion public interest would suffer. So also, where a matter extends to the authority of a state, the governor of the state or any other person appointed by him can object to the production of the document if after consideration producing such document will affect public interest. As stated earlier, the basis upon which a public officer or a state will refuse to produce document or information in a judicial proceeding is when after due consideration, they are of the opinion that public or national interest would be jeopardized. Sections 91, 243(1) Evidence Act, 2011

Where a public officer intends to object to the production of a privileged document in court citing public interest, such objection taken before trial is expected to be by an affidavit. But where such objection is raised at the hearing stage, then it shall be by a certificate produced by a public officer. Section 243(2) Evidence Act, 2011.

At first glance, it may appear to be so. However, the fact that a public officer cannot be compelled to produce document in the court during a trial on the ground of public interest does not by itself make it absolutely impossible to get such information or document. The court has the final discretion whether or not to admit such document or oral evidence as the case may be. The judge can order the public officer to disclose to him alone in his chambers or in camera the substance of the communication in question. Where it is a document, the court would inspect same and decide whether or not to uphold the objection. Where the judge is satisfied that the information should be received in evidence, then it shall be done in private. Sections 191, 243(3) Evidence Act, 2011.