Chan v Department of Education & Training
[2009] NSWADT 85
•21 April 2009
CITATION: Chan v Department of Education & Training [2009] NSWADT 85 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Yau Hang Chan
Department of Education & TrainingFILE NUMBER: 083126 HEARING DATES: 18 September 2008 SUBMISSIONS CLOSED: 3 October 2008
DATE OF DECISION:
21 April 2009BEFORE: Montgomery S - Judicial Member CATCHWORDS: Freedom of Information Act - access to documents – adequacy of search – legal professional privilege– personal affairs – confidential material LEGISLATION CITED: Freedom of Information Act 1989 CASES CITED: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140
Cianfrano v Director General, Premier’s Department [2007] NSWADT 216
Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Law Society of New South Wales v General Manager, Workcover Authority of New South Wales [2004] NSWADTAP 40
Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2) [2007] FCA 1445
Trade Practices Commission v Sterling (1979) 36 FLR 244
University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362
Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54Wagh v Commissioner of Police, New South Wales Police Force [2008] NSWADT 264REPRESENTATION: APPLICANT
RESPONDENT
In person
S Bilbe-Taylor, solicitorORDERS: The decision under review is affirmed
Background
1 The applicant applied to the Respondent under the Freedom of Information Act 1989 (“the FOI Act”) for access to documents. His request was in the following terms:
1. Any document, in your custody, possession or power, within the meaning of the word "document" as defined by s.6 of the Freedom of Information Act 1989. The word "document" also includes e-mail messages and their attachments. You are required to produce any and all documents mentioning, concerning, referring to or in relation to (a) Mr. Yau Hang CHAN … whether implicitly or explicitly, and also (b) at the same time also mentioning, concerning, referring to or in relation to the TAFE course of code 19027 (or any of the module/unit of the course 19027) at any time. That is, you are not required to produce any document that does not contain (a) and (b) at the same time. … [A]ll relevant documents after January 2005 and up to today are within the scope of this request.
2 The applicant also provided the Respondent with particulars with non-exhaustive examples of documents within the scope of his request and to clarify documents that he did not consider as falling within the scope of his request.
3 Ms Bilbe-Taylor, the Legal Officer/Leader FOI & Privacy within the Respondent’s Freedom of Information and Privacy Unit, determined the request. She identified a number of documents as falling within the scope of the Applicant’s request. Of those documents, she determined that a number of pages were exempt under either Clause 10 or clause 13 of Schedule 1 to the FOI Act and the applicant was denied access to those documents. Ms Bilbe-Taylor also identified two other documents as falling within the scope of the Applicant’s request that she considered contained information to be exempt under Clause 6 of Schedule 1 to the FOI Act. The applicant was granted partial access to those documents with the exempt material deleted.
The internal review
4 The applicant sought an internal review of that determination. He asserted that a large number of documents had not been identified as falling within the scope of the application. He also requested the disclosure of the documents that had been withheld as exempt and asserted that the documents should be produced with the exempt material deleted. He also provided the following purported clarification:
“I wish to have access to the following documents mentioning me:
1. any and all documents "proving continuous harassing behaviour from this student" as mentioned in Ms. Glenis Sellwood's e-mail dated 17 November 2005 to Ms. Julie Frail on p.43 in r_DOC2.pdf
2. any and all documents to and from the Deputy Director-General- TAFE & Community Education
3. any and all documents to and from the Deputy Director-General -General Strategic Planning & Regulation
4. any and all documents to and from the Executive Director -Strategic Relations & Communications
5. the "cover note accompanying the documents" as mentioned on p.51 in r_DOC2.pdf
6. any and all documents to and from your former FOI Manager Mr. Anthony Bendall
7. any and all documents to and from the former TAFE Managing Director Mr. Andrew Cappie-Wood
8. any and all documents to and from the teachers Mr. Maurice Jackson and/or Mr. Phil Sallis mentioned on p.29 of r_DOC1.pdf”
5 He also subsequently provided the following additional purported clarification:
“The followings are also some documents mentioning me that I wish to have access to:
1. any and all documents in relation to "a number of meetings with Glenis" as mentioned on p.50 in r_DOC1.pdf (e.g. minutes of meetings)
2. any and all documents in relation to the "decision" in "we need to make a decision within the next week or so" as mentioned on p.50 in r_DOC1.pdf
3. any and all documents to and from Mr. Steve Oom (who often attended any hearing of the Supreme Court case 30100/05 on behalf of the TAFE Commission)”
6 Ms Lee Rayner, the Respondent’s Senior Legal Officer, undertook the internal review. She advised the applicant that she considered that his correspondence that purported to clarify the scope of his request had in fact attempted to broaden the original request and should be the subject of new requests.
7 Ms Rayner varied the original determination to grant the applicant access to 13 of the pages that Ms Bilbe-Taylor regarded as exempt under Schedule 1 clauses 10 or 13 to the FOI Act. She affirmed Ms Bilbe-Taylor’s determination with respect to the deletion of material from two other documents however she determined that clause 6 of Schedule 1 applies to one document and clause 10 to the other.
The external review
8 The applicant applied to the Tribunal for review of the adequacy of the Respondent’s search and the determination to refuse to grant him access to the withheld material.
9 The applicant contends that, on its own admission, the Respondent has never searched its archives in an effort to locate documents that fall within the scope of the request. He sought an order that the Respondent undertake that search. He also asks for a determination with respect to whether the Respondent has correctly determined that the withheld material is exempt from production and if so, whether it should be released notwithstanding that it is exempt.
Relevant legislation
10 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government.
11 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act.
12 Section 25(1) of the FOI Act provides, in part, that an agency may refuse access to a document if it is an exempt document. Section 25(4)(a) provides, in part, that an agency shall not refuse access to a document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted. Pursuant to section 61 of the FOI Act, the agency has the burden of establishing that its determination was justified.
13 Clause 6 of Schedule 1 of the FOI Act provides:
- 6 Documents affecting personal affairs
(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).
(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.
14 Clause 10 of Schedule 1 of the FOI Act provides:
- 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 buy virtue of this clause merely because it contains matter that appears in an agency's policy document.
15 Clause 13 of Schedule 1 of the FOI Act provides:
- 13 Documents containing confidential material
A document is an exempt document:
(a) if it contains matter the disclosure of which would found an action for breach of confidence, or
(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.
16 Section 53 of the FOI Act provides:
- 53 Right to make a review application
(1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination.
(2) A review application may not be made:
(a) while the determination is subject to a right of review under section 34 or 47, or
(b) if the determination has been subject to a right of review under section 34 or 47 but no application for such a review of the determination was made while it was subject to that right, or
(c) while any relevant complaint is being investigated by the Ombudsman.
(3) For the purposes of this section, a person is aggrieved by a determination:
(a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36—if the determination is to the effect that:
(i) an agency or Minister refuses to give the person access to a document, or
(ii) access to a document is to be given to the person subject to deferral, or
(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the person, or
(iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or
(v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred, or
(b) in the case of a determination that relates to an application made by some other person under section 17, 34 or 36, in respect of a document to which one or more of the provisions of Division 2 of Part 3 applies—if:
(i) an agency or Minister should have, but has not, taken such steps as are reasonably practicable to obtain the views of the person as to whether or not the document is an exempt document by virtue of any one or more of the provisions of Part 2 of Schedule 1, or
(ii) an agency or Minister should have, and has, taken such steps but the determination is not in accordance with the views of the person, or
(c) in the case of a determination that relates to an access application made by the person under section 40, 47 or 49—the determination is to the effect that an agency or Minister refuses to amend the agency’s records or that Minister’s records, as the case may be, in accordance with the application,
and the determination has been made as a consequence of a review under section 34 or 47 or has not been subject to a right of review under either of those sections.
(4) In relation to decisions under this Act that are reviewable decisions under the Administrative Decisions Tribunal Act 1997:
(a) the procedures for internal reviews provided by this Act apply to the exclusion of section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997, and
(b) any reference in the Administrative Decisions Tribunal Act 1997 to an internal review of a reviewable decision under that Act is taken, in its application to a decision made under this Act, to be a reference to an internal review under this Act.
(5) The provisions of this Division apply to a review application to the exclusion of section 55 (1) (d), section 58 and Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.
17 Section 63 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) provides:
- 63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Respondent’s case
18 The Respondent filed a copy each of the documents in issue. Ms Bilbe-Taylor provided written submissions in relation to each of the documents. In her submissions she provided the following description of the documents and the Respondent’s assertions with respect to the claimed exemptions:
“Documents
15. A one page Email dated 30 March 2007 Julie Frail to Rebecca Kyle relaying legal advice.
16. A one page Email dated 21 March 2007 Rebecca Kyle to Steve Dom relaying legal advise.
a. The Respondent submits that this document should be exempt under s10 as it was created for the sole purpose as an internal communication to a legal adviser.
17. A one page Facsimile Transmission Sheet dated 17 November 2005 which replicates the attached one page Facsimile dated 16 November 2005 Julie Frail to Steve Com, again relating to legal communication.
a. The Respondent submits that this document should be exempt under s10 as it was created for the sole purpose as an internal communication to a legal adviser.
18. A one page Memo dated 17 November 2005 Suzan Hartigan to Katherine Curic, outlining legal issues and process.
a. The Respondent submits that this document should be exempt under s10 as it was created for the sole purpose as an internal communication to a legal adviser.
19. A two page Statement dated 25 November 2005 by a member of staff.
a. The Respondent submits that this document should be exempt under s10 as it was created for the sole purpose as an internal communication to a legal adviser.
20. A one page undated statement
a. The Respondent submits that this confidential material should be exempt under s13 as the disclosure of this information could interfere with the investigation process.
b. Further, or in the alternative, the Respondent submits that this document should be also exempt under s10 as it was created for the sole purpose as an internal communication from a legal adviser.
21. A one page statement
a. The Respondent submits that this confidential material should be exempt under s13 as the disclosure of this information could interfere with the investigation process.
b. Further, or in the alternative, the Respondent submits that this document should be also exempt under s10 as it was created for the sole purpose as an internal communication from a legal adviser.
22. A one page Facsimile Transmission Sheet dated 6 October 2006 which replicates the details contained in a one page Memo dated 6 October 2006.
a. The Respondent submits that this confidential material should be exempt under s13 as the disclosure of this information could interfere with the investigation process.
b. Further, or in the alternative, the Respondent submits that this document should be also exempt under s10 as it was created for the sole purpose as an internal communication from a legal adviser.
23. A one page Memo dated 1 May 2006
a. The Respondent submits that this document should be exempt under s10 as it was created for the sole purpose as an internal communication to a legal adviser.
24. A one page Notation
a. The Respondent submits that this document should be exempt under s10 as it was created for the sole purpose as an internal communication to a legal adviser.
25. A one page Email dated 23 November 2005
a. The Respondent submits that this document should be released to the applicant.
26. A one page Email dated 29 November 2005
a. The Respondent submits that this document should be exempt under s10 as it was created for the sole purpose as an internal communication to a legal adviser.
27. A three page Email dated 28 November 2005
a. The Respondent submits that this document should be exempt under s10 as it was created for the sole purpose as an internal communication to a legal adviser.
28. A one page Student Assessment Guide -B001 A1 PB * Partial Exemption
a. The Respondent submits that this document should be exempt under s10 as it was created for the sole purpose as an internal communication to a legal adviser.
29. A one page facsimile dated 17 November 2005
a. The Respondent submits that this document should remain partial exempt under s6 as the information exempted relates directly to the personal information of persons other than the Applicant.
30. A one page Individual Participation Progress Log * Partial Exemption
a. The Respondent submits that this document should be exempt under s10 as it was created for the sole purpose as an internal communication to a legal adviser.
a. The Respondent submits that this document should remain partial exempt under s6 as the information exempted relates directly to the personal information of persons other than the Applicant.
19 The Respondent submits that legal professional privilege attaches to all but two of the documents, in that they are documents created for the sole purpose of seeking, noting or giving legal advice. As such, the Respondent asserts that each is an exempt document under Clause 10 of Schedule 1 of the FOI Act.
20 Ms Bilbe-Taylor referred to the High Court decision in Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 in which Gleeson CJ, Gaudron, Gummow and Hayne JJ summarised the general principles of legal professional privilege at paragraph [9]:
- It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.
21 The Respondent submits that the documents to which it asserts that legal professional privilege attaches (“the clause 10 documents”) were created for the sole purpose of seeking, noting or giving legal advice. It contends that one Directorate of the Respondent entered into a professional relationship with another Directorate to secure a legal advice of an independent character. Therefore the legal advice obtain should be protected as an exempt document under Clause 10 of Schedule 1 of the FOI Act.
22 The Respondent submits that the clause 10 documents were managed by Mr Steve Com who is a Legal Clerk in the Respondent’s Legal Services Division. The Respondent provided the Tribunal with a copy of Mr Com's job description.
23 Ms Bilbe-Taylor stated that Mr Com’s position is under the supervision of the Director of Legal Services, Mr Michael Waterhouse, who holds a current practicing certificate. She further stated that Mr Com, under the supervision of the Director of Legal Services, was responsible for the exchange of information between the Respondent and the Crown Solicitors Office, in relation to litigation commenced by Mr Chan against the Respondent.
24 In the alternative the Respondent contends that the three statements referred to in paragraph 13 above are partially exempt pursuant to Clause 13 of Schedule 1 of the FOI Act. Ms Bilbe-Taylor contends that the information withheld in those documents is inherently confidential and has been created in circumstances where there has been an established confidential relationship. She submitted that the Respondent is entitled to protect the flow of that confidential information Further she submits that the release of such information could be to the detriment of the informant.
25 The Respondent further asserts that two of the withheld documents, identified as a “Student Assessment Guide –B001A 1 PB” and “Individual Participation Progress Log”, are partially exempt pursuant to Clause 6 of Schedule 1 of the FOI Act. Those documents have been released to the applicant with some material excluded. The Respondent contends that the material that has not been released relates to the personal information of individuals other than the Applicant and is therefore exempt pursuant to Clause 6.
26 For these reasons, the Respondent submits that the determination under review is the correct and preferable one and therefore it should be affirmed.
The Applicant’s case
27 The applicant asserts that the Respondent should hold documents that fall within the scope of his application but which it has not identified. He says that the reason those document were not identified is that the Respondent never searched for archived documents. He argues that the Tribunal must order the Respondent to undertake that search.
28 The Applicant does not dispute the decision in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 (“ADT v Department of Commerce & Ors”) in which the Court of Appeal determined that the jurisdiction of the Tribunal conferred by section 53 of the FOI Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency’s documents. However, he submits that the decision has no application in this matter because the Respondent has admitted that it did not search for archived documents before determining the FOI request.
29 He says that if there is any doubt in regard to the Tribunal’s jurisdiction, this can be clarified with the Court of Appeal by way of filing a special case in the same manner as was done in ADT vDepartment of Commerce & Ors.
30 The Applicant submits that the onus is on the Respondent to substantiate its claim that legal professional privilege attaches to all but two of the documents. He says that the Respondent has failed to discharge its onus of proof to show that the Respondent is entitled to claim legal professional privilege for the documents.
31 He relies on the Federal Court of Australia decision in Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2) [2007] FCA 1445 (“Telstra”) where Graham J observed at paragraph [12]:
- "12 No evidence whatsoever has been led by Telstra to establish the role which the various legal practitioners performed within Telstra. In particular, no evidence has been advanced to disclose the measure of independence of the legal practitioners in question and their ability to provide impartial legal advice, given the roles they have had to perform."
32 Graham J stated at paragraphs [35] – [41]:
- 35 In my opinion an in-house lawyer will lack the requisite measure of independence if his or her advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer. On the other hand, if the personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied.
36 In the case presently before the Court, there is no evidence, as I have earlier remarked, going to the independence of the internal legal advisers involved in the communications said to have been brought into existence for the dominant purpose of providing or receiving legal advice. There is nothing to indicate from the description of the six documents with which the Court is presently concerned that they must be documents for which privilege is properly claimed. Different considerations may apply if, say, the documents in question were opinions expressed by identified senior counsel where one might start off with the premise that by its nature the document would have privilege attaching to it. This is not such a case.
…
41 It seems to me that there would be no real utility in inspecting the documents at this stage as the question of whether or not they were brought into existence for the dominant purpose of providing or receiving legal advice is unlikely to be apparent from the terms of the documents themselves. Much more would be required to establish that the communications were privileged as documents brought into existence for the dominant purpose of providing or receiving legal advice. Furthermore, there would be no opportunity afforded to the Minister to test the claims that may be made in that regard.
33 The Applicant submits that it is clear that the Respondent will not be able to discharge the onus to prove that its solicitors are independent solicitors who are able to provide truly independent legal advice. He says that the lack of independence of internal legal advisers is fatal to any claim for legal professional privilege. If independence cannot be established, there can be no claim for legal professional privilege. The Applicant submits that on this ground alone, the Respondent's claim of legal professional privilege is hopeless.
34 He argued that internal legal advisers are rarely independent or wholly independent. He says that lack of independence is a consequence of the current structure and practice of micro-management of government in New South Wales.
35 He submits that in any event, if a communication qualifies for legal professional privilege, the Tribunal can exercise its statutory powers under the FOI Act to override the legal professional privilege.
36 It is the Applicant's further submissions that the Respondent has waived legal professional privilege for the relevant documents because the Respondent's particular conduct is inconsistent with the maintenance of this privilege. He relies on Telstra at paragraph [23] as authority for the principle that waiver can be implied from conduct that is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. He says that waiver can be inferred from the Respondent's “conduct" in failing to provide evidence to substantiate its claim for legal professional privilege. He submits that the Respondent has sought to use legal professional privilege to breach its own policy, published in the TAFE Gazette, which requires that a student the subject of any complaint must be informed about the complaint so that the student can exercise its right to answer the complaint. He says that the Respondent failed to accord him procedural fairness by not fully informing him of any complaint about him before determining any matters in relation to him so that he could answer the complaint, and by seeking to conceal such a complaint from him.
37 The Applicant submits that legal professional privilege is not designed to authorise a client to breach the client's own policy and other administrative orders/guidelines. He says that even if it is actually entitled to assert legal professional privilege, the Respondent has waived it by its own conduct.
38 As support for his submission that he should be given access to the documents he seeks the Applicant relies on paragraph [33] of Telstra. Graham J referred to the High Court decision in Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 (“Waterford”) in stating:
- 33 In Waterford the court accepted that in some circumstances legal advice may be accompanied by advice of another kind which can be separated from it. In such circumstances, only the legal advice will be privileged. However, if the legal advice contains extraneous matter which cannot be separated from it, the legal advice will not lose its privilege for that reason (per Mason (as his Honour then was) and Wilson JJ at 66 and per Dawson J at 103).
39 In Waterford Mason and Wilson JJ stated:
- The presence of matter other than legal advice may raise a question as to the purpose for which it was brought into existence but that is simply a question of fact to be determined by the Tribunal and its decision on such a question is final. It may also be appropriate in a particular case for the Tribunal to require those parts of the document which do not bear the necessary relation to legal advice to be disclosed. The doctrine of legal professional privilege allows room for questions of fact and degree such as these to fall for decision.
40 The Applicant asserts that the Respondent has merely made an assertion of legal professional privilege and that claim is not based on evidence or sufficiency of the evidence to establish the claim. He says that the Respondent's claim for legal professional privilege is therefore completely hopeless and that the Respondent has no statutory ground to prevent the release of the relevant documents. He says that the documents must be released immediately.
Findings
41 The Tribunal’s role is to determine what the correct and preferable decision is, having regard to the material then before it. (See section 63 of the ADT Act). In order to determine the correct and preferable decision, it is necessary to determine:
Whether the Tribunal can order the Respondent to undertake a further search for documents that fall within the scope of the application;
Whether the withheld documents are exempt documents pursuant to one or more of the clauses in Schedule 1 of the FOI Act; and
Whether, if a withheld document is an exempt documents, it should be released notwithstanding that it is an exempt document.
Whether the Tribunal can order the Respondent to undertake a further search
42 As noted above, the Court of Appeal in ADT vDepartment 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. I agree with the following summary provided by Judicial Member Pearson in Wagh v Commissioner of Police, New South Wales Police Force [2008] NSWADT 264:
- “32 As noted by Beazley JA (at [75]), the matter was argued in the Court of Appeal as if the question was whether the Tribunal had jurisdiction to determine the sufficiency of search by an agency in respect of an application for access to documents. The answer provided by the Court of Appeal was as follows:
- (a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under section 24 of the Freedom of Information Act 1989;
(b) the formation of an opinion that an agency does not hold a document is not a determination for the purposes of section 24;
(c) the jurisdiction of the Tribunal conferred by section 53 of the Freedom of Information Act 1989 does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency’s documents made pursuant to sections 17 and 18 of the Freedom of Information Act 1989.
- Section 25 complements section 24. Section 24 governs an agency’s responsibility and obligations under the FOI Act after it has received an application. The right to access is a statutorily conferred right and an agency’s obligations relating to granting access and the circumstances in which it may refuse access are also statutorily prescribed. Leaving aside the situation where an agency fails to determine an application within 21 days, giving rise to a deemed refusal: section 24(2); an agency is statutorily required to make a determination in relation to the application. There are, relevantly for present purposes, only two available determinations that may be made: to grant access or to refuse access. A determination to refuse access may be made on one or more of the bases specified in section 25. The section, properly construed, does not permit other circumstances to be taken into account.
- [68] ... Section 53 provides for the review of a determination. 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 section 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 section 24(1).
36 Basten JA held (at [108]):
- ... However, consistently with the scope and objects of the legislation and the expressed intention that the FOI Act shall be applied so as to further those objects and so as to facilitate and encourage the disclosure of information (section 5(3)), section 25 should be seen as an exclusive statement of grounds on which access may be refused.
38 The limits on the Tribunal's jurisdiction, as determined by the Court of Appeal, apply regardless of when the applicant applied for review. The Tribunal has no jurisdiction to go behind an agency’s determination that it has provided access to all the documents it holds that fall within the terms of a request for access. That would still be the case where other documents are subsequently found, as in this matter ... Only the Ombudsman can investigate a complaint that an agency has not properly attempted to locate all relevant documents. The respondent has provided access to what it says are the only documents that fall within the scope of the applicant's request for access request. The applicant's contention that there must be more documents is not a determination reviewable under section 53. In the absence of jurisdiction, the appropriate course is to dismiss the application.”
44 In my view, the Applicant's contention that the Respondent did not search its archives and that more documents would be located if it did so is not a determination reviewable under section 53. Only the Ombudsman can investigate that matter.
Whether the withheld documents are exempt documents
45 The Respondent contends that the withheld documents are exempt pursuant to either Clause 6, 10 or 13 of Schedule 1 of the FOI Act.
The Clause 10 exemption claim
46 As noted above, a confidential communication between a lawyer and his or her client is protected by legal professional privilege if it is made for the dominant purpose of contemplated or pending litigation, or for obtaining or giving legal advice: Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; Daniels Corp International Pty Limited v Australian Competition and Consumer Commission; Law Society of New South Wales v General Manager, Workcover Authority of New South Wales [2004] NSWADTAP 40 at [22]. The privilege extends to communications between a lawyer or client and a third party if made for the purpose of actual or contemplated litigation.
47 In Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246 Lockhart J outlined the categories of legal professional privilege as including:
- “(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. …
(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. …
(c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. …
(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. …
(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. …
(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. …
(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent”.
48 The application of Clause 10 of Schedule 1 of the FOI Act has been the subject of numerous Tribunal matters and several higher court considerations.
49 In Howell v Macquarie University [2008] NSWCA 26, Campbell JA, with whom Spigelman CJ and Bell JJA agreed, stated at paragraph [41]:
- [41] The Appeal Panel made its decision on the basis (that has not been questioned before us) that the relevant principles to apply for the existence of the cl 10 exemption are those concerning the common law of legal professional privilege, not those concerning the availability of client legal privilege under the Evidence Act 1995. The Appeal Panel quoted, at [27] the statement of Gleeson CJ, Gaudron, Gummow and Hayne JJ in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9], 522; (2002) 77 ALJR 40 at [9]:
- It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.
50 At [54], His Honour went on to explain how the Tribunal was to assess the evidence where such an exemption is claimed by an agency:
- ‘The task of the Tribunal, in reviewing a claim of legal professional privilege made by an agency, is to make up its own mind, on the basis of such information as it has available to it, about whether the matter contained in a document has the characteristics that would make it privileged from production in legal proceedings on the ground of legal professional privilege.’
51 His Honour further stated at paragraph [72]:
- [72] The purpose for which a document is brought into existence is a question of fact: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at [5], 692 per Jacobs J; Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at [10], 66 per Mason and Wilson JJ; [14], 78 per Brennan J. While sometimes direct testimonial evidence from the person who created a document concerning the purpose which it was brought into existence can be both relevant and important, there is no requirement, even in a court of law, for the purpose with which a document was brought into existence to be proved in this way. Sometimes, an examination of the document itself can be enough to establish the dominant purpose with which it came into existence. That is often the case with a brief to counsel to advise, or a memorandum of advice from counsel, that deals with no topic other than the giving of advice. Sometimes, examination of the circumstances in which a particular document has been produced might show that even though the document considered on its own looked like legal advice, or a request for legal advice, there were other extraneous circumstances that led to the conclusion that it was produced with a dominant purpose other than one which would make the document privileged. It is a question of fact, involving weighing such evidence as is available, whether in any particular case a document was produced with a dominant purpose of giving or obtaining legal advice or the provision of legal services.
52 I have inspected the documents in respect of which the Respondent claims an exemption under Clause 10. I am satisfied that the documents which the Respondent asserts are exempt pursuant to Clause 10 are documents of the kind that would usually fall within the scope of the categories set out by Lockhart J in Trade Practices Commission v Sterling. I find as a fact that each of those documents has the characteristics that would make it privileged from production in legal proceedings on the ground of legal professional privilege.
53 However, the Applicant asserts that the documents are not exempt pursuant to Clause 10 because the Respondent’s solicitors do not have the necessary are independence to provide truly independent legal advice. Alternatively, he asserts that if the documents do attract legal professional privilege, the Respondent has waived that privilege.
54 The Respondent’s evidence in regard to that issue is limited to the assertion that the Director of Legal Services holds a current practicing certificate and that Mr Com works under his supervision. The Respondent says that it was in a solicitor-client relationship with the Crown Solicitor’s Office in regard to actual or potential litigation with the Applicant. Mr Com is a Legal Clerk in the Respondent’s Legal Services Division who acted as a conduit to pass information between the Respondent and the Crown Solicitor in regard to those matters. The Respondent provided a copy of Mr Com's job description to support its assertion that this function was within the scope of his position.
55 I have reviewed Mr Com'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 Com was acting as the agent for the Respondent in his dealings with the Crown Solicitor’s Office. Nor have I any basis on which I could conclude that either Mr Com or any other person has acted in any way that was inconsistent with the maintenance of the Respondent’s confidentiality. Accordingly, I find that the Respondent has not waived the privilege that attaches to the documents.
56 I am satisfied that the documents in respect of which the Respondent claims an exemption under Clause 10 are exempt documents pursuant to that clause.
The Clause 6 exemption claim
57 The Respondent claims that two of the documents that have been identified as falling within the scope of the Applicant’s request contain information that is exempt under Clause 6 of Schedule 1 to the FOI Act. The applicant was granted access to the redacted documents, however the Respondent contends that the material that has been deleted relates to the personal information of individuals other than the Applicant and is therefore exempt pursuant to Clause 6.
58 I have inspected the documents in respect of which the Respondent claims an exemption under Clause 6 and I agree with the Respondent’s assessment of the material that has been deleted.
59 I am satisfied that the documents in respect of which the Respondent claims an exemption under Clause 6 are exempt documents pursuant to that clause. I also agree that it is practicable to give the Applicant access to a copy of the document from which the exempt matter has been deleted as required by section 25(4)(a) of the FOI Act.
The Clause 13 exemption claim
60 I note that the Respondent claims that several of the documents that have been identified as falling within the scope of the Applicant’s request are also exempt under Clause 13 of Schedule 1 to the FOI Act. Given my view that the Clause 6 and Clause 10 exemptions apply it is unnecessary that I determine that issue.
Whether exempt documents should be released.
61 In University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362, Nicholas J held that section 63 of the ADT Act provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it (“the override discretion”).
62 In Cianfrano v Director General, Premier’s Department [2007] NSWADT 216, at [24], the Tribunal’s President noted that there should be strong grounds justifying the exercise of this override discretion. At paragraph [27] the President set out some of the factors relevant to the exercise of the discretion. He stated:
- 27 Practical circumstances that might influence the Tribunal to exercise the discretion include:
- whether the exempt matter was, by other means, in the public domain
- whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant
- the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity
- the public interest in an informed debate on issues of significance to the community
- whether there were adverse consequences for the proper administration of government, and their extent
- whether any adverse consequence is remote or innocuous
“the following principles to guide the exercise of the discretion have emerged:
63 Applying these principles in the current matter, I am not satisfied there are strong reasons justifying overriding the exemption. There is no public interest in the documents being disclosed, nor is there any adverse consequence for the proper administration of Government in not doing so. Thus, I am not satisfied that I should exercise the Tribunal’s residual discretion to release the exempt parts of the document.
64 It follows, in my view, that the determination made by the Respondent is the correct and preferable one. It should therefore be affirmed.
Order
The decision under review is affirmed
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