Bienstein and Attorney-General's Department - [2006] AATA 259

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 259
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1268

GENERAL ADMINISTRATIVE DIVISION

Re: HELEN BIENSTEIN
Applicant

And:ATTORNEY-GENERAL’S DEPARTMENT
Respondent

DECISION
Tribunal:       G.D. Friedman, Senior Member
Date:             17 March 2006
Place:            Melbourne
Decision:The Tribunal varies the decision under review by granting access to parts of documents released to the applicant by the respondent during the proceedings.

(sgd) G.D. Friedman

Senior Member

FREEDOM OF INFORMATION - documents relating to the applicant’s communications ‑ whether documents exempt from disclosure - legal professional privilege ‑ personal privacy - adequacy of searches
Freedom of Information Act 1982 ss 4, 41(1), 42(1)
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Commonwealth of Australia v Dutton (2000) 102 FCR 168
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
Federal Commissioner of Taxation v Spotless Services Ltd (1996) 141 ALR 92
Re Z and Australian Taxation Office (1984) 6 ALD 673
Re Sheila Hittich (on behalf of the Australian Tinnitus Society (Western Australia) and Another and Re Pfizer Pty Limited and Another and Department of Health, Housing and Community Services (1993) 30 ALD 647
Waterford v Commonwealth (1987) 163 CLR 54
Wiseman v Commonwealth, unreported, Full Federal Court, G167 of 1989
REASONS FOR DECISION
17 March 2006  G.D. Friedman, Senior Member
1.      Ms Bienstein sought access to documents which have come into existence as a result of or incidentally to (the applicant’s) communications with the Attorney-General’s Department or with any other agency, Court or Minister arising from proceedings in the Family Court of Australia several years earlier. On 11 November 2003 the respondent affirmed a decision dated 7 October 2003 under the Freedom of Information Act 1982 (the FOI Act), to refuse access to a number of documents held by the respondent (the exempt documents).
2.        During the proceedings the respondent released material to Ms Bienstein comprising the names of two persons for which exemption had previously been claimed. At the date of the hearing, 5 documents (Documents 1-5), or parts of documents, were claimed to be exempt on the grounds of legal professional privilege (s 42(1) of the FOI Act) (Documents 1-4) and personal privacy (s 41(1) of the FOI Act) (Document 5).
3.        The issues before the Tribunal are whether the documents to which access has been refused should be released, and whether adequate searches were made by the respondent.
SHOULD THE EXEMPT DOCUMENTS (LEGAL PROFESSIONAL PRIVILEGE) BE RELEASED?
4.        Document 1 is a memorandum of legal advice dated 29 November 2000 from Ms J. Burnett of the Australian Government Solicitor (AGS) to Mr S. Bourke of the respondent.
Document 2 is an email dated 30 November 2000 from Ms D. Turner of the respondent to Ms Burnett commenting on legal advice received on 29 November 2000.
Document 3 is a memorandum of legal advice dated 16 August 2001 from Ms H. Chisholm of the AGS to Mr Bourke.
Document 4 is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] AATA 259
Decision Date: 17 March 2006

CaseChat Overview and Summary

In the case of Bienstein and the Attorney-General's Department, the applicant, Helen Bienstein, sought access to documents that were generated as a result of her communications with the Attorney-General's Department and other agencies, courts, or ministers, stemming from proceedings in the Family Court of Australia. On 11 November 2003, the respondent affirmed a decision made on 7 October 2003 under the Freedom of Information Act 1982 (FOI Act) to refuse access to certain documents (the exempt documents). During the proceedings, the respondent released some material to Ms Bienstein, but five documents or parts of documents remained contested, with exemptions claimed under legal professional privilege and personal privacy.

The primary legal issues before the Tribunal were whether the documents in question should be released and whether adequate searches were conducted by the respondent. Regarding legal professional privilege, the Tribunal determined that documents 1-4, which contained legal advice from qualified lawyers employed by the Australian Government Solicitor, were exempt from disclosure under section 42(1) of the FOI Act. The Tribunal found that these documents were created for the dominant purpose of providing or receiving legal advice, and the advice was confidential and independent, thus satisfying the criteria for legal professional privilege.

As for personal privacy, the Tribunal examined document 5, which contained email correspondence concerning Family Court complaints procedures. The Tribunal found that the deleted material contained personal information about an individual, the disclosure of which would be unreasonable under section 41(1) of the FOI Act. Considering the public interest in non-disclosure and the potential for serious consequences for the individual, the Tribunal concluded that the public interest in non-disclosure outweighed the public interest in disclosure.

The Tribunal also addressed the adequacy of the searches conducted by the respondent. The evidence presented by the respondent demonstrated that extensive and adequate searches were carried out within their record management system, and all relevant documents had been included in the response to the FOI request. Consequently, the Tribunal varied the decision under review by granting access to parts of the documents released to the applicant by the respondent during the proceedings.

Orders