1.1 Records created by officials in the course of their official duties enjoy, at least, qualified privilege. This means that in any action against a civil servant in relation to the contents of a record, a plaintiff would have to show malice. Malice in defamation law does not have the same meaning as in everyday speech; it does not simply mean ill will or spite against the plaintiff, nor does it indicate dishonesty.

1.2 Instead, what it conveys is that the civil servant in making the record was not acting in the course of his/her official duties, and had improper or ulterior motive.

1.3 In effect qualified privilege protects all civil servants who act in good faith.

1.4 This privilege applies regardless of whether a record is accessed under FOI, or outside of that Act.