CAPITAL PROPERTY FINANCE PTY LIMITED AND MINISTER FOR PLANNING
[2007] ACTAAT 16
•2 August 2007
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:CAPITAL PROPERTY FINANCE PTY LIMITED AND MINISTER FOR PLANNING [2007] ACTAAT 16 (2 AUGUST 2007)
AT06/61
Catchwords: Freedom of information – request for access to documents - claims for exemption in relation to legal professional privilege, personal affairs and internal working documents.
Freedom of Information Act 1989, ss 36, 39, 41
Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 66 ALJR 695
Harris v Australian Broadcasting Corporation (1984) 51 ALR
Tribunal:Mr B Hatch, Senior Member
Date:2 August 2007
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/61
GENERAL DIVISION )
RE: CAPITAL PROPERTY
FINANCE PTY
LIMITED
Applicant
AND: MINISTER FOR
PLANNING
Respondent
DECISION
Tribunal : Mr B Hatch, Senior Member
Date : 2 August 2007
Decision :
The decision under review is set aside and substituted with decision that the applicant be given access to the documents set out in accordance with these reasons for decision.
…………………………..
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/61
GENERAL DIVISION )
RE: CAPITAL PROPERTY
FINANCE PTY
LIMITED
Applicant
AND: MINISTER FOR
PLANNING
Respondent
REASONS FOR DECISION
2 August 2007 Mr B Hatch, Senior Member
This is an application for review of decision which was filed in the Tribunal on 15 September 2006. This matter is one of a number of related matters some of which involve access to documents and other matters which involve various other interests all of which arise from the sale of Block 8 Section 48 Division of Fyshwick which is usually referred to as the “Epicentre development”.
2. This decision is with respect to whether certain documents to which the respondent claims exemption to being released should nevertheless be released.
3. The respondent provided a list of documents for which exemption was claimed and pursuant to which part of the Freedom of Information Act such document was exempt. For the purposes of the hearing and the submissions to be made by the respondent, the actual documents to which exemption is claimed were provided to the Tribunal. As is invariably the case in FOI hearings those documents were not made available to the applicant or its legal advisers. This necessarily means that the applicant is often left fighting a case based on general principles rather than by reference to the documents to be reviewed.
4. The simplest method of determining the status of each of these documents is to do them in the order in which they are set out in Annexure C to the witness statement of Mr Rohan Goyne, senior adviser to the Minister for Planning, the respondent to these proceedings. The numbering used is the numbering in that document. That numbering continues the numbering from the original decision of Mr Goyne of 18 August 2006 with respect to the documents subject to the FOI request. I was advised during the hearing that the parties had agreed that some of the documents which were in dispute could be released. I will note in this decision those agreements and, unless stated otherwise, the release of those documents is a decision which could be made by the Tribunal.
List of documents
It is agreed that this document can be released.
This document is in two parts. The first part is an email which is no more than a covering memorandum advising that a letter is attached. That email cannot be exempt in any fashion and must be released. The attached letter is legal advice from Chamberlains Law Firm to the Land Development Agency. The Land Development Agency is merely an administrative unit within the ACT Public Service. This document contains legal advice and that is its dominant purpose. It is exempt.
The parties have agreed that this document can be released.
This is a letter of 10 July 2006 from the Australian Capital Territory Government Solicitor to the Land Development Agency. The dominant purpose of the letter is to provide legal advice and the document is therefore exempt.
This document is an email within the Land Development Agency enclosing Document 13. That same page also encloses a short email from the ACT Government Solicitor to the Land Development Agency. Those two emails cannot be exempt in any fashion. The attached letter which is the legal advice of 10 July 2006 which is Document 13 is exempt.
(15) &
These documents of 10 July 2006 relate to possible replies to questions from the media. These documents contain information in relation to personal affairs of officers within the ACT Government. Such documents are exempt pursuant to section 41 of the FOI Act. In addition, these documents are on the face of them clearly internal working documents. It is clear from the tenor of the documents that they involve discussions between officers in relation to how matters may or should be attended to. As such, this document is also exempt pursuant to section 36 of the FOI Act.
This document is in various parts as follows:
(a)this is an email from Shane Radnell to Monica Boogs who are both officers within the Land Development Agency. It is agreed that this document can be released;
(b)the respondent agrees that this document which is a brief from the Land Development Agency to the Chief Minister and Minister for Planning can be released but with one sentence deleted. That sentence starts at the bottom of the first page with the words “legal advice” and ends with the words “see Attachment D”. The claim for exemption of that sentence relates to an issue of legal professional privilege. The contention of the respondent is that to release that sentence would amount to a waiver of legal professional privilege in relation to other documents for which an exemption could or may be allowed. Alternatively, it is contended that this sentence reveals the nature of legal advice which has been provided. Having read that sentence, I agree that this sentence should be exempt. The sentence clearly identifies what sort of legal advice has been given in relation to a certain matter. To release this sentence would defeat the exemption for legal professional privilege with respect to the advice given;
(c)this is a letter from the Chief Minister to the Capital Property Group and the respondent agrees that it can be released;
(d)this is a letter from the Land Development Agency to Mallesons Stephen Jaques, the solicitors for the Capital Property Group dated 8 June 2006. The respondent agrees that it can be released;
(e)this document is the same as (b) and nothing further needs to be added;
(f)this is a letter of 31 July 2006 from the Chief Minister to the Capital Property Group and the respondent agrees that it can be released;
(g)this is a letter from Mallesons Stephen Jaques, solicitors for the Capital Property Group to the Land Development Agency and the respondent agrees that it can be released;
(h)this is a letter from the Land Development Agency to Mallesons Stephen Jaques dated 13 March 2006 and the respondent agrees that it can be released;
(i)this is a letter from Mallesons Stephen Jaques to the Land Development Agency of 7 April 2006 and the respondent agrees that it can be released;
(j)this document is in two parts. The first part is from Chamberlains Law Firm to the Land Development Agency. The dominant purpose of this communication is to provide legal advice and, as such, the document is exempt. The respondent has agreed that the rest of that email may be released;
(k)this is a letter from Chamberlains Law Firm to the Land Development Agency dated 8 June 2006. The dominant purpose of this letter is to provide legal advice and it is exempt;
(l)this is a letter from the Land Development Agency to the ACT Auditor-General dated 13 April 2006. This letter answers questions raised by the Auditor-General following complaints made to the Auditor-General. It is not clear who made those complaints. It is not clear why this document has not earlier been released. I cannot see any basis on which it would be exempt. Accordingly, the document is released;
(m)this is a letter from the Chief of Staff in the Chief Minister’s office to a senior adviser in the office of the Minister for Planning dated 9 June 2006. The respondent agrees that it should be released;
(n)this is a letter from the Capital Property Group to the Chief Minister and the ACT Auditor-General dated 6 June 2006. The respondent agrees that it should be released;
(o)this is a letter from Mallesons Stephen Jaques to the Land Development Agency dated 26 May 2006 together with three schedules which are attached to it. The respondent agrees that these documents can be released;
(43) &
These documents comprise a series of emails. The submission of the respondent was that some of these documents were exempt as internal working documents pursuant to section 36 of the FOI Act whereas other emails could be released. Having read these documents, I am of the view that either these documents are all exempted as internal working documents or all released. To only release part of these documents would have the potential to mislead a reader of the documents as to the nature of the documents and what the government may have been attempting to achieve.
In Harris v Australian Broadcasting Corporation (1984) 51 ALR 581 at 585, the Court said:
In Vaugh v Rosen (1975) 523 F (2d) 1136 the same court stressed (at 1144) that to be within Exemption 5 the document must be “a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. Put another way, pre-decisional materials are not exempt merely because they are pre-decisional; they must also be a part of the agency give-and-take – of the deliberative process – by which the decision itself is made”. Later the court said: “Looking at the evaluative portions of the sample reports themselves, we note nothing in them to suggest that they are anything other than ‘final objective analyses of agency performance under existing policy’. While the Commission’s evaluating team probably hopes that its analyses will have a salutary effect on agency personnel practices, the evaluative reports appear to be informational in nature. They provide the raw data upon which decisions can be made; they are not themselves a part of the decisional process.”
Of course, s 36 of the Freedom of Information Act has to be interpreted according to the words which have been used, the context and the purpose disclosed. There is no notion of discovery in legal proceedings involved in it, as there is in the United Stated statute. Furthermore, it is to be noted that the United States cases, for the purpose of applying Exemption 5 of the Freedom of Information Act 1966 (US), have formulated a test whether on the one hand the material is purely factual and therefore discoverable or, on the other hand, is part of the deliberative process, and therefore entitled to exemption. Under the Commonwealth Act material has to be opinion, advice or recommendation for the purposes of the deliberative processes before it may qualify for exemption under s 36(1). It may then be excluded under s 36(5) if it is purely factual material and, if severed, would not be misleading (s 22). However, the discussion in the United States cases, which preceded the passing of the Commonwealth Act, deals with the same subject matter in a way which may afford some help.
There is also the need to take into account the often worthwhile need of giving the public access to information (Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 66 ALJR 695).
Having taken the competing positions into consideration, I consider it to be the preferred decision that both documents 43 and 44 should not be released and are exempt. These documents are internal working documents which show a series of discussions between various officers in relation to what could or should not be done in relation to certain matters. Releasing these documents would not, in my opinion, shed any light on any of the issues and would do nothing to clear up any confusion or uncertainty in relation to any of the issues.
The respondent has agreed that this document be released.
The respondent has agreed that this document be released.
The respondent has agreed that this document be released.
The respondent has agreed that this document be released with an exemption in relation to the phone number of a Minister’s adviser. I agree that the phone number is exempt pursuant to section 41.
The respondent has agreed that this document be released.
The respondent has agreed that this document be released.
The respondent has agreed that this document be released with an exemption for the mobile phone of a Minister’s adviser (see (52) above).
The respondent has agreed that these documents be released.
The first part of this document is an email of 28 February 2005 from Anne Skewes to Gina Pinkas. I agree with the submission of the respondent that this document relates to financial and budget targets of the agency and is therefore exempt pursuant to section 39. The release of such information may affect the ability of the Land Development Agency to properly market land. If, for example, the Land Development Agency was a private company in the land development business there could be no hesitation in accepting that the release of such information was financially sensitive. The respondent agrees that the remainder of that document can be released (being emails dated 25 and 27 February 2005).
This document once again is emails. The respondent agrees to the release of the emails dated 27 February 2005. The respondent claims an exemption for the email of 25 February 2005 from Anne Skewes to Mike Harris. Once again this document contains financial information of the Land Development Agency and pursuant to section 39 I consider it is preferable that this document is exempt. I also consider that the document contains internal deliberations and that the release of that information may lead to some inhibition in candid advice being given in these circumstances.
This document is largely the same as Document 63. The respondent agrees to the release of two emails dated 27 February 2005. An exemption is sought for the email of 25 February 2005 which is the same email for which I have allowed exemption in Document 63.
Once again this is the same as Documents 63 and 64. The respondent agrees to release of the email of 27 February 2005. The email of 25 February 2005 is the same email as in Documents 63 and 64.
(66) &The respondent agrees to the release of these documents.
(67)
5. Having taken all of the matters into consideration, I consider that the above decisions are the correct and preferable decisions with respect to the documents that should be released and those which are exempt. A number of the exempt documents relates to legal advice. I have set out above that the documents concerned have as their dominant purpose the provision of legal advice. For completeness, I should state that whilst the legal test is the dominant purpose the above documents containing legal advice seem to have no purpose other than legal advice.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT06/61
APPLICANT: CAPITAL PROPERTY FINANCE PTY LIMITED
RESPONDENT: MINISTER FOR PLANNING
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT: MR S W BALAFOUTIS
RESPONDENT: MR P WALKER
PARTY JOINED:
SOLICITORS: APPLICANT: MALLESONS STEPHEN JAQUES
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTY JOINED:
OTHER:APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR B HATCH, SENIOR MEMBER
DATE/S OF HEARING: 5 MARCH 2007 PLACE: CANBERRA
DATE OF DECISION: 2 AUGUST 2007 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
6
0
0