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 a memorandum of legal advice dated 3 October 2001 from Ms Chisholm to Mr Bourke.

5. Section 42(1) of the FOI Act provides:

A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

…

In an affidavit filed with the Tribunal Ms Burnett stated that she and Ms Chisholm are qualified lawyers employed by the AGS, and that the advice contained in Documents 1, 3 and 4 was provided to the respondent in their professional and independent capacities as lawyers.  She said that the AGS operates on a commercial lawyer/client basis with the respondent.

6.        In an affidavit filed with the Tribunal Mr K. Duggan, Assistant Secretary, Family Law branch, Civil Justice Division of the respondent, stated that Document 2 repeats the substance of the legal advice contained in Document 1, and that the legal advice was paid for by the respondent, which considers the advice to be confidential and has handled it accordingly.

7.        Decisions of the Federal Court and the Tribunal have held that reference to legal professional privilege in s 42 is reference to legal professional privilege at common law (Commonwealth of Australia v Dutton (2000) 102 FCR 168). In Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 the High Court held that legal professional privilege protects the confidentiality of certain communications where the dominant purpose is providing or obtaining legal advice, or the provision of legal services in legal proceedings (Federal Commissioner of Taxation v Spotless Services Ltd (1996) 141 ALR 92). The privilege attaches to a solicitor/client relationship and includes confidential professional communications between government agencies and their salaried legal officers (Waterford v Commonwealth (1987) 163 CLR 54).

8.         On the material before it, the Tribunal is satisfied that at relevant times a professional solicitor/client relationship existed between Ms Burnett and the respondent (including Ms Turner), and between Ms Chisholm and the respondent.  The Tribunal finds that Documents 1-4 concerned legal proceedings, the advice was confidential and independent, and the documents were created for the dominant purpose of the provision or receipt of legal advice.

9.        For these reasons the Tribunal finds that Documents 1-4 are exempt from disclosure under s 42(1) of the FOI Act.

SHOULD THE EXEMPT MATERIAL (PERSONAL PRIVACY) BE RELEASED?

10.      Document 5 is email correspondence dated 11, 12 and 13 June 2003 between Mr W. Bobbin and Dr J. Popple, officers of the Civil Justice Division of the respondent, concerning Family Court complaints procedures.  Two lines have been deleted from the email dated 11 June 2003 from Mr Bobbin, and two lines have been deleted from the email dated 13 June 2003 from Mr Bobbin.

11. Section 41(1) of the FOI Act provides:

A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

…

The term personal information is defined in s 4 of the FOI Act as follows:

“personal information” means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

12.      After examining the deleted material the Tribunal is satisfied that each of the two-line extracts contains information about an individual whose identity is apparent from the information, so the material constitutes personal information for the purposes of the FOI Act (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).

13.      In Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 the Federal Court held that what is unreasonable disclosure of information for purposes of s 41(1) must have public interest considerations as its core. The public interest in disclosure is the general right of the public to have access to documents held by the Commonwealth and to participate in the Government’s decision-making process. The public interest against disclosure include the individual’s right to privacy, and the right to confidentiality of information about himself or herself held by the Commonwealth.

14.     In this matter the person is a public figure.  Taking all relevant circumstances into account (Wiseman v Commonwealth, unreported, Full Federal Court, G167 of 1989) the Tribunal concludes that disclosure may mislead the reader and result in serious consequences for the person (Re Z and Australian Taxation Office (1984) 6 ALD 673). Therefore, the public interest in non-disclosure outweighs the public interest in disclosure. For these reasons disclosure of the material would be unreasonable, and the Tribunal finds that the four lines deleted from Document 5 are exempt from disclosure under s 41(1) of the FOI Act.

ADEQUACY OF SEARCHES

15.      During the proceedings Ms Bienstein raised the question of whether the respondent had carried out adequate searches for relevant documents.  In affidavits filed with the Tribunal Mr C. Gallagher, Information Law Branch, Information Law and Human Rights Division of the respondent and Ms T. Ghenossis, formerly an officer of the respondent, described in detail the searches conducted by the respondent for relevant documents.  They stated that paper and data files were identified and examined and each relevant document coming within the ambit of the FOI request was identified.

16.      The Tribunal accepts the evidence from Mr Gallagher and Ms Ghenossis and is satisfied that officers of the respondent carried out extensive and adequate searches in the respondent’s record management system for relevant documents, and that all such documents have been included in the response to the FOI request. 

DECISION

17.      The Tribunal varies the decision under review by granting access to parts of documents released to the applicant by the respondent during the proceedings.

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Lydia Zozula          

Associate

Date of hearing:  2 March 2006
          Date of decision:  17 March 2006

Advocate for applicant:                Self-represented (not present at hearing)

Advocates for respondent:          Mr M. Bennett and Ms R. Antone, Attorney-General’s Department