Chan v Department of Education and Training (GD)

[2010] NSWADTAP 7

Appeal Panel - Internal

CITATION:	Chan v Department of Education and Training (GD) [2010] NSWADTAP 7 This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:	APPELLANT Yau Hang Chan RESPONDENT Department of Education and Training
FILE NUMBER:	099026
HEARING DATES:	19 October 2009; 7 December 2009
SUBMISSIONS CLOSED:	7 December 2009
DATE OF DECISION:	12 February 2010
BEFORE:	O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Bolt M - Non-Judicial Member
CATCHWORDS:	Freedom of Information: Legal Professional Privilege: Applicability to Communications to and from a Legal Clerk in Agency's Legal Branch: Independence: Proof - Adequacy of Search: Jurisdiction - Appeal Dismissed
DECISION UNDER APPEAL:	Chan v Department of Education and Training [2009] NSWADT 85
FILE NUMBER UNDER APPEAL:	083126
DATE OF DECISION UNDER APPEAL:	04/21/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 Attorney General (NT) v Kearney (1985) 158 CLR 500 Chan v Louey [2007] NSWSC 272 Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335 Cianfrano v Director General, Department of Commerce (No. 2) [2006] NSWADT 195 General Manager, WorkCover Authority of NSW v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502 Glengallan Inv P/L & Ors v Arthur Andersen & Ors; Equuscorp P/L & Anor v Glengallan Inv P/L [2002] 1 Qd R 233 Howell v Macquarie University [2008] NSWCA 26 Southern Cross Commodities Pty Ltd (In Liq) v Crinis [1984] VR 697 Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 White v NSW Department of Education and Training [2009] NSWADTAP 73
REPRESENTATION:	APPELLANT In person RESPONDENT S Bilbe-Taylor, legal officer
ORDERS:	Appeal dismissed

1 The appellant, Mr Chan, was enrolled at the Sydney Institute, Ultimo during 2005 as a student in one of the courses that make up the Diploma of Library and Information Science.

2 On 15 November 2005, his teacher, Ms Louey, notified him that he was to be given a fail mark in the course, “Develop and Apply Knowledge of the Library/Information Services Industries”. He immediately commenced proceedings in the Supreme Court. (See further, Chan v Louey [2007] NSWSC 272; and Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335 at [1] to [3].)

3 The Institute is funded and overseen by the NSW Technical and Further Education Commission (TAFE). TAFE, in turn, belongs to the portfolio of the Minister for Education and Training.

4 On 3 May 2007 Mr Chan applied under the Freedom of Information Act 1989 (FOI Act or the Act) for access to documents about him held by TAFE. The request was handled by the relevant unit in the portfolio Department, the Department of Education and Training.

5 Mr Chan’s request was a wide one. At point 1 of the application he sought documents referring to him in connection with TAFE course mentioned (code 19027). In point 2 he excluded from the scope of the request certain documents. In point 3 he gave ‘particulars’ of ‘non-exhaustive examples of documents’ that he considered to be within the scope of the request. He referred, for example, to documents relating to his failing grade and the handling of his request for review of failure in the course mentioned earlier. At point 4 he made, in effect, a further application for all documents between various teachers and administrators at the Ultimo campus in the period July-December 2005.

6 By decision dated 22 May 2007, the agency made a determination granting full access to many of the documents it had located relevant to the application (172 documents) and refused access in whole to 21 documents and gave partial access to 2 documents. The agency relied on three exemptions (legal professional privilege, confidential information, unreasonable disclosure of personal affairs information).

7 Mr Chan applied for internal review. The internal review decision issued on 18 January 2008. The reviewer excluded from consideration correspondence subsequent to the primary decision which, in his opinion, sought to widen the original application. The reviewer referred to Mr Chan’s contention that the search undertaken must have been inadequate as the primary determination had not identified documents that he had expected to form part of the response. The reviewer stated that he was satisfied that a search of two locations (the TAFE & Community Education Directorate and the Sydney Institute) had been logical, thorough and reasonable.

8 The reviewer varied the primary determination granting Mr Chan access to 13 of the 21 pages originally refused. Mr Chan applied to the Tribunal for review in respect of the remaining 8 documents. The Tribunal affirmed the decision.

9 On 22 April 2009, Mr Chan lodged with the Registry the form for a notice of appeal to the Appeal Panel. Appeals against decisions of Divisions of the Tribunal are regulated by ss 112, 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act). In the body of the document, Mr Chan requested the Appeal Panel to exercise its power under s 118 of the ADT Act to refer three questions of law to the Supreme Court.

10 The Appeal Panel convened on 19 October 2009 to deal with this application. At the hearing, Mr Chan did not press his request in relation to the second and third questions. The Appeal Panel refused leave in relation to the first question. That question had sought clarification of certain aspects of the ruling of the Court of Appeal as to the jurisdiction of the Tribunal in relation to adequacy of the searches undertaken by agencies in response to access applications (see Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140).

11 The Appeal Panel made directions to the parties for the filing of submissions in relation to the points raised in the notice of appeal. The appeal was heard on 9 December 2009.

12 The notice of appeal raised two issues. The first was whether the Tribunal was mistaken in not requiring the agency to undertake further searches of archived documents in satisfying the scope of his original request. The second was whether the Tribunal erred in its application of the principles of legal professional privilege to the documents for which the agency claimed exemption on that ground, in particular because a key author was not a qualified legal practitioner.

13 In response to the direction to file submissions, Mr Chan filed a series of documents, summarised below:

(i) He stated that the agency had never given any notice under s 28(1)(b) of the FOI Act of the fact that the agency did not hold a document to which the application related. He asserted that it was ‘common ground at all times’ that there were documents in existence, in archives, related to his request. He also referred to the power of the Tribunal under s 58 of the FOI Act to report improper conduct by an officer in the administration of the Act.

(ii) These submissions are lengthy, and contain sweeping allegations of corruption against the staff of the ADT and various officers of the respondent agency. They do not raise, in our view, any ground of appeal relevant to the reasons of the Tribunal under appeal in this case, and are not further considered. They also criticise the Tribunal for inaccurately recording the name of an officer of the agency as ‘Com’ when it is ‘Oom’.

(iii) This set of submissions is a companion to those made under point (i). As we understand the submission, Mr Chan considers that the process of ‘consideration’ must be conducted in a way that ensures that a proper or complete ‘determination’ ensues. Consequently the determining officer must read the whole of the document before making a determination as to whether an exemption is applicable.

(iv) This submission follows on from point (iii). He asserts that the determining officer (Ms Bilbe-Taylor, who also appeared at the appeal hearing for the agency) never bothered to read one word of documents which he says can be found in archives and relevant to his request. He renewed his application for a s 58 report.

(v) This submission also follows on from point (iii). He referred to what he saw as discrepancies in the conduct by Ms Bilbe-Taylor of the case at first instance as compared to this appeal, contending that statements she had made at first instance bound her on appeal.

(vi) This submission criticised as unsatisfactory in various ways the contents of the Notice of Representation filed by Ms Bilbe-Taylor on behalf of the agency. There is no appeal point.

14 In our view points (ii) to (vi) are not appeal grounds. They do not go to matters that were before the Tribunal. Point (i) is an elaboration of matters raised in relation to the first issue in the notice of appeal. We have asked the Registrar to arrange for the correction of the error in the spelling of the officer’s name.

Legal Professional Privilege

15 We will turn to the second of the two issues raised in the notice of appeal which concerned the Tribunal’s approach to the agency’s claim for exemption on the ground of legal professional privilege (FOI Act, Sched 1, cl 10), i.e.:

‘ 10 Documents subject to legal professional privilege

(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency’s policy document.’

16 There is no need to repeat at length here the principles governing the interpretation of this exemption. See generally, Howell v Macquarie University [2008] NSWCA 26; General Manager, WorkCover Authority of NSW v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502.

17 The point of contention is whether the Tribunal was correct in treating as falling within the scope of the privilege communications made by or to an officer who was not a qualified legal practitioner. The officer was Mr Stephen Oom.

18 Mr Oom was described by the Tribunal as a ‘Legal Clerk’ in the Legal Services Division of the agency. The agency informed the Tribunal that he was under the supervision of Mr Michael Waterhouse, Director, Legal Services, Department of Education, who held a current practising certificate.

19 The appeal challenges the Tribunal’s conclusion that Mr Oom possessed the requisite degree of independence and professional status to bring the communications within the purview of legal professional privilege.

20 The agency carries the onus of proof in establishing that documents are exempt on the ground of legal professional privilege under s 61 of the FOI Act: ‘the burden of establishing that the determination is justified lies on the agency’. As Graham J said in Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445:

‘27 It is for a party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence, but it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The Court has power to examine the documents for itself, a power which has been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence [various authorities cited].’

21 It is necessary to establish that in-house legal staff had the requisite degree of independence to bring the affected documents within the purview of privilege, having regard to the principles laid down by the High Court in Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54. While Gibbs CJ in Attorney General (NT) v Kearney (1985) 158 CLR 500 at 510 was inclined to the view that the privilege could only be claimed by a lawyer who has been admitted to practice, the law is now clear that the privilege does extend a situation where a non-qualified person, such as a law clerk, is giving advice subject to the supervision of a practitioner: see, for example, Glengallan Inv P/L & Ors v Arthur Andersen & Ors; Equuscorp P/L & Anor v Glengallan Inv P/L [2002] 1 Qd R 233 per Williams JA at [19]; see also, Southern Cross Commodities Pty Ltd (In Liq) v Crinis [1984] VR 697 (Young CJ).

22 The Tribunal rejected Mr Chan’s submission that Mr Oom did not possess the requisite degree of independence. It said:

‘55 I have reviewed Mr [Oom’s] job description and I am satisfied that the role he played is within the scope of that job description. I have no basis on which I could conclude that the Respondent’s solicitors do not have the necessary independence to provide truly independent legal advice. In any event, it is my view, as is apparent from the face of the documents, that Mr [Oom] was acting as the agent for the Respondent in his dealings with the Crown Solicitor’s Office. …’

23 The Tribunal’s statement in [55] that it had ‘no basis’ to conclude that the agency’s in-house solicitors ‘do not have the necessary independence’ suggests that it is open to the Tribunal to assume that in-house solicitors have the necessary independence without there being any material in support being put forward by the agency. This approach is precluded by the onus of proof to which we have referred. The agency must justify its reliance on an exemption in respect of all elements of the exemption. In this instance, the element to be addressed is that the legal practitioner possesses real independence in the giving of advice. This is always a significant issue where the legal practitioner works for a general employer such as a government agency or a business corporation. It is not enough to assume that the requisite degree of independence exists, even though that might be reasonable in the case of a practitioner working in a private law firm. The onus of proof in this respect lies on the agency.

24 However, the Tribunal did not conclude its consideration at that point. It did turn to the material placed before it by the agency. The Tribunal had regard to the contents of the documents for which privilege was claimed, and Mr Oom’s duty statement. The Tribunal did not, in addition, have any formal evidence from someone such as a head of the Legal Branch dealing with the functions of the unit, the way in which independence is assured and the practical supervisory relationship with subordinate legal staff including law clerks. Usually evidence of this kind is furnished.

25 As the observations of Graham J reflect, the documents for which the privilege is claimed provide an important means for determining whether the communications involve the provision of legal advice or assistance in connection with litigation actual or contemplated; and whether that advice is given with the requisite degree of independence.

26 It is not critical that Mr Oom was merely a ‘legal clerk’ as distinct from an admitted legal practitioner. What is required is that the clerk work under the authority of a qualified person belonging to a detached legal services unit. Mr Oom’s duty statement went to that matter.

27 Despite the absence of the more formal evidence from the head of the Legal Branch that would normally be present, we consider that the Tribunal had adequate evidence to reach the conclusion it did, and the onus of proof was met.

Adequacy of Search

28 The agency in its internal review determination referred to Mr Chan’s objections to the adequacy of the search. As we understand Mr Chan’s case, he is of the view that many electronically stored communications such as e-mails belonging to the period from when he enrolled (February 2005) to the date of his application were not recovered and disclosed. He considers that those communications may have been archived. In its reasons the Tribunal said:

‘42 As noted above, the Court of Appeal in ADT v Department of Commerce & Ors determined that the jurisdiction of the Tribunal conferred by section 53 of the FOI Act does not extend to the review of the adequacy of searches undertaken by an agency. The issue for determination in this matter is whether the Tribunal can order an agency to undertake a further search where the agency has admitted that it did not search for archived documents.

43 In my view, the Court of Appeal decision makes it clear that the Tribunal does not have the jurisdiction to order the Respondent to undertake the further search that the Applicant is seeking.’

29 The precise issue before the Court in the Commerce case, as we will call it, was whether an agency’s notification under s 28(1)(b) of the FOI Act that it does not hold a document gives rise to any matter that is reviewable by the Tribunal in the exercise of its jurisdiction under the FOI Act. The Court held that the Tribunal had no jurisdiction in those circumstances.

30 In this case there is no formal s 28(1)(b) notification. The situation is a looser one. The agency in its internal review determination addressed Mr Chan’s objection to the adequacy of its search by stating that it had undertaken a thorough search. At a later stage the agency indicated that its search had not extended to archived records.

31 In explaining why the Tribunal was not entitled to enquire into adequacy of search, Beazley JA said at [68] and [74]:

‘68. … The logical steps antecedent to the making of a determination, such as identifying and locating documents and/or ascertaining whether documents exist, are not part of that determination and there is no provision in s 53(1) that draws such conduct within the Tribunal’s review function. A statement that an agency does not have a document is not a ‘determination’ within the meaning of s 24(1). Accordingly, the bases for the implication of an additional right of review for the purposes of s 24, in my opinion, do not exist and Smith JM was incorrect in finding that there was such an implication.

…

74 The approach taken by Smith JM in Beesley and by O’Connor J in this case, Cianfrano v Director General, Department of Commerce (No. 2) [2006] NSWADT 195, assumed that the Tribunal had jurisdiction to review a determination made by an agency. This is the same assumption made by Hedigan J in Victoria Police v Burton . It is apparent that in each of these decisions, the Court or Tribunal was concerned that the enforceable right conferred by the FOI Act could be thwarted, wholly or partially, by an agency failing to undertake a proper or adequate search for documents. In each decision, therefore, it was assumed that the jurisdiction to review encompassed that process. However, in order to bring such a failure within the terms of the Act, it became necessary to label such a failure of process as something that it was not, namely, as being tantamount to a determination to refuse access to a document.’

32 Basten JA said:

‘105 There is no explicit statement imposing an obligation on an agency to search for documents the subject of an application for access. Nevertheless, there is implicit in s 24 (and other sections) a requirement that the agency will consider an application and that it will search for documents which might fall within its terms. Such an implicit statutory obligation may also be derived from the statement of the primary object of the FOI Act, which is to confer rights on the public to obtain access to information held by the government which is to be achieved “by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government”: s 5(1)(a) and (2)(b). However, there is no provision in the FOI Act permitting review of any step taken in the process of considering an application beyond the power to review the determinations identified in s 24.

106 This does not, of course, mean that the obligations imposed on agencies under the FOI Act upon receipt of applications for access to documents are unenforceable in either a legal or a practical sense. As the Respondent accepted, the failure of an agency to consider or adequately consider an application might be the subject of a complaint to the Ombudsman. The fact, as noted by the Respondent, that the power of the Ombudsman might not extend to review of a decision with respect to documents held by a Minister does not mean that in other circumstances a right of administrative review does not exist through the office of the Ombudsman, nor, more importantly, does it mean that the FOI Act should be construed so as to confer a right of review through the Tribunal, which the terms of the Act do not expressly provide.

107 An obligation may also be enforceable by way of judicial review. Although the grounds of review will be more limited and the cost may be a substantial hurdle for applicants, a failure by an agency to carry out its statutory obligations under the FOI Act might result in an order in the nature of mandamus obliging the agency to fulfil its statutory obligation.

…

134 Further, the reasoning in a number of the cases placed weight upon the desirability of the Tribunal having power to review the adequacy of a search and the power to direct the agency to undertake further searches. No doubt there are reasons of policy why it might be thought desirable that the Tribunal entitled to review the merits of a refusal to supply access to documents should have power at least to direct further inquiries in relation to the ascertainment of the class of documents to be considered. On the other hand, it may be thought that, administrative review of the search process being available through the office of the Ombudsman, an applicant not satisfied with the outcome of such an investigation should be restricted to judicial review, even though that has potential costs ramifications and is limited to assessing whether the agency has failed to carry out its legal obligations or has acted beyond its legal powers. These matters are, however, for the Parliament and do not form a basis for the Court to reconstruct the statutory language to give effect to that which is perceived to be a desirable outcome.’

33 It will be seen that the observations of Beazley JA and Basten JA (Giles JA agreeing with both) go beyond cases involving a formal notification under s 28(1)(b). Accordingly, in our view, the observations made in the Commerce case apply to the present case. The Tribunal was correct in taking the approach it did.

34 In one recent case, White v NSW Department of Education and Training [2009] NSWADTAP 73, an Appeal Panel (the President presiding, but otherwise the Panel was differently constituted) did not accept an assertion made by the agency in the course of proceedings that documents responsive to the request did not exist; and remitted the request for reconsideration. The Appeal Panel said in that case:

‘28 In our view the Commerce case is not to be read as requiring the Tribunal to decline jurisdiction simply on the basis of an assertion by an agency in submissions that it has no documents responsive to a request. Something more is required – at the least, the making of an official statement in the formal response to the request to that effect that is credible, or, preferably, the formal giving of a s 28(1)(b) notice.’

35 In this case the same problem does not arise. It was the agency’s position at the agency determination stage that it had no further documents responsive to the request.

36 In light of the observations of the Court of Appeal an applicant aggrieved over the adequacy of search must complain to the Ombudsman or seek judicial review of a failure to perform an implied statutory obligation. This is not a case with the lack of clarity as to what determination was being made, if any, as occurred in the White case.

19/02/2010 - Amend 'evidence' to 'independence' - Paragraph(s) Paragraph 23