Cianfrano v Director General, NSW Department of Commerce (No 2)

[2007] NSWADT 233

CITATION:	Cianfrano v Director General, NSW Department of Commerce (No 2) [2007] NSWADT 233
DIVISION:	General Division
PARTIES:	APPLICANT Robert Cianfrano RESPONDENT Director General, NSW Department of Commerce
FILE NUMBER:	063211
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	26 July 2007
DATE OF DECISION:	3 October 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	access to documents - adequacy of search - access to documents - personal affairs - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Baker v Campbell (1983) 153 CLR 52 Cianfrano v Director General, Attorney General's Department (No 2) [2007] NSWADT 231 Cianfrano v Director General, NSW Department of Commerce [2007] NSWADT 99 Cianfrano v Director General, Premier's Department [2007] NSWADT 216 Coco v The Queen (1994) 179 CLR 427 Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362
REPRESENTATION:	APPLICANT In person RESPONDENT S Morris, Solicitor
ORDERS:	In accordance with the reasons provided Cianfrano v Director General, NSW Department of Commerce [2007] NSWADT 99 Documents B, C, E, F, H, I, J, K and M are to be released with the exempt matter deleted. The decision under review is otherwise affirmed.

1 The background to this matter is set out in Cianfrano v Director General, NSW Department of Commerce [2007] NSWADT 99 (“the earlier decision”). Mr Cianfrano made an application under the Freedom of Information Act 1989 (“the FOI Act”) to the Director-General of the Department of Commerce (“the Agency”) seeking:

"access to documents relating and pertaining to the NSW Department of Commerce and or the Attorney General's Department and or the Crown Solicitor's Office, into the costs incurred to all FOI application and ADT appeals made by Robert Cianfrano."

2 The Agency determined that there were twelve documents that fell within the scope of the application. Full access was granted to three documents (documents A, D and G) and partial access was granted to a further nine documents (documents B, C, E, F, H, I, J, K and M).

3 In the earlier decision I determined that Documents B, C, E, F, H, I, J, K and M are exempt from release pursuant to clause 7(1)(c) of Schedule 1 to the FOI Act, however, it is practicable to give access to copies of these with the exempt matter deleted. I also determined that Document L is exempt pursuant to clause 10 of Schedule 1 to the FOI Act.

4 In Nicholas J's judgment in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 (“McGuirk”) the Supreme Court confirmed that the Tribunal has 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 Court in McGuirk did not provide guidance as to the proper exercise of that discretion. In light of that decision I considered that it was appropriate that the parties have an opportunity to present argument with respect to how the Tribunal’s discretion should be exercised. I invited the parties to make submissions in regard to whether the material that Mr Cianfrano seeks should be released notwithstanding that it has been found to be exempt.

5 The matter was listed before me on 5 June 2007 and I set a timetable for the filing of further material. Each of the parties filed written submissions on the point. The matter is to be determined on the basis of those submissions.

Mr Cianfrano’s Case

6 Mr Cianfrano provided submissions in support of his contention that the Tribunal should exercise the override discretion giving full access to all the withheld documents. He also provided a number of documents in support of his case.

7 He argues that the FOI Act gives NSW citizens a legal right to access to all documents created by public servants whilst performing government functions. It places no requirements on the applicant to justify or show cause to FOI requests. The override discretion must be interpreted in light of achieving the fundamental government principles of openness accountability and responsibility.

8 Mr Cianfrano argues that the test for the exercise of the override discretion in favour of the disclosure is the presence of what he refers to as ‘the public disquiet’ i.e. the publicly expressed concern in regard to the conduct of the Crown solicitor's Office (“the CSO”). He does not specify the basis for this "test". Nor does he explain what is meant by "public disquiet".

9 He presented argument in relation to the discretion to release a document that is found to be exempt pursuant to clause 10 of Schedule 1 to the FOI Act but did not present argument as to why that discretion should be exercised in the circumstances of this matter.

10 Mr Cianfrano contends that the release of the remaining documents is justified because the CSO apparently provides advice to different agencies on the same or similar subject matter and may charge each agency a fee for that advice. This system of charging provides an incentive to the CSO to oppose wider dissemination of the advice. That advice therefore becomes a product of commercial value and may have the status of intellectual property to the CSO. This fails to give affect to the lawful government agency policy provided for in section 5(3)(b) of the FOI Act.

11 He argues that the sameness of the CSO advice is apparent from the submissions provided from different agencies. If the hourly rate being charged to each agency were the same, the CSO would be charging over and over again for the same work. This would be an unsustainable proposition and unacceptable to the public at large. He further submits that releasing the CSO's hourly rates would enable the public to better understand how much is being spent by various agencies on external legal advice.

The Agency’s Case

12 The Agency submits that the Supreme Court's decision in McGuirk can have no application insofar as a document is exempt under clause 10 of Schedule 1 to the FOI Act on the ground of legal professional privilege. It says that there are two separate reasons for this. Firstly, it is a well-established proposition that, as a common law right, legal professional privilege cannot be abrogated in the absence of clear words or necessary implication. In Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, Gleeson CJ, Gaudron, Gummow and Hayne JJ said (at 553):

“Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.”

13 Section 63 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) empowers the Tribunal to determine what the correct and preferable decision is and provides that for this purpose it may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. Section 25(1)(a) of the FOI Act provides that an agency may refuse access to a document "if it is an exempt document". Both provisions are expressed in general terms. Where the agency is the "client" for the purposes of legal professional privilege, these provisions cannot be construed as abrogating the agency's right to claim legal professional privilege over the documents it holds. They do so neither expressly nor by necessary implication.

14 The Agency submits that the Supreme Court's reasoning in McGuirk depends upon construing section 25(1)(a) as impliedly empowering an agency to grant access to an exempt document. By virtue of section 63 of the ADT Act, this implied power is then said to be exercisable by the Tribunal. An implied power to grant access to exempt documents cannot represent an “unmistakably clear” indication that legal professional privilege was intended to be abrogated. If anything, the inclusion of clause 10 of Schedule 1 to the FOI Act suggests the contrary.

15 Simply because section 25(1)(a) refers to "exempt documents" generally and could, accordingly, encapsulate documents exempt by reason of clause 10 is insufficient. Powers conferred in general terms will not be construed as abrogating legal professional privilege: Baker v Campbell (1983) 153 CLR 52; Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission. In Coco v The Queen (1994) 179 CLR 427 (at 437) Mason CJ, Brennan, Gaudron and McHugh JJ explained the reason for this as follows:

‘The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.’

16 Similarly, in Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission, McHugh J stated that "[a] power conferred in general terms, however, is unlikely to contain the necessary implication because 'general words will almost always be able to be given some operation, even if that operation is limited in scope'" (at 563).

17 Secondly, the Agency submits that it is well established that legal professional privilege belongs to the client. Where the agency is the client for the purposes of legal professional privilege, the capacity to determine whether the privilege should be waived is not a function conferred or imposed on the agency by an enactment for the purposes of section 63(2) of the ADT Act. Instead it is a common law right. Accordingly, the Tribunal's powers on review of a reviewable decision under section 63 do not extend to determining whether privilege, belonging to the agency, can be waived.

18 The Agency submits that that it is open to the Tribunal to find that it does not have any residual discretion with respect to documents exempt under clause 10 of Schedule 1 to the FOI Act. However, the Agency submits that if the discretion exists, the Tribunal should be aware that Parliament intended a balance to be struck between the right of the public to access documents and the sometimes competing consideration of what the "proper administration of the Government" requires. It says that Parliament has already struck this balance by enacting a number of detailed statutory exemptions to the general right of access.

19 The Agency submits that the following matters govern the scope of the decision-maker's discretion to grant access to exempt documents:

(i) whether the decision-maker should exercise the override discretion must depend upon the particular exemption and the circumstances of the case;

(ii) circumstances which persuades him or her that access to the documents should be granted; and

(iii) the considerations which the decision-maker may take into account in undertaking this exercise are confined by the scope and objects of the FOI Act.

20 It is submitted that the Tribunal should be extremely cautious in exercising any discretion to grant access to a document exempt under clause 10 of Schedule 1 to the FOI Act as legal professional privilege is itself the product of a balancing exercise between competing public interests. It is difficult to conceive of any situation in which the "correct and preferable" decision would be to grant access to such a document. It is submitted that the correct and preferable decision is not to grant access to document L.

21 The Agency further submits that the Tribunal's apparent residual discretion to grant access to exempt documents should not be exercised in respect of documents B, C, D, E, F, H, I, J, K and M. It says that the earlier decision determined that the correct and preferable decision is to release documents B, C, D, E, F, H, I, J, K and M with the exempt matter deleted, and that the reviewable decision should, in respect of these documents, be affirmed.

22 Further, if a document satisfies the first limb of clause 7(1)(c) of the Schedule the Tribunal must have been satisfied that disclosure could reasonably be expected to have an unreasonable adverse effect on business, professional, commercial or financial affairs. Given the factors that the Tribunal has been required to take into account in determining that the adverse effect on the business affairs of the CSO is ‘unreasonable’, it is highly unlikely that the correct and preferable decision could be to grant access to the document.

23 It argues that, having regard to the objects of the FOI Act and the unreasonable adverse effect that disclosure of the exempt matter would have on the CSO, there is no evidence of any special or overriding circumstance or interest arising from either the nature of the document or the circumstances in which the documents are sought that would suggest the correct and preferable decision is to grant Mr Cianfrano access to documents B, C, E, F, H, I, J, K and M in their entirety.

24 The Agency argues that the factors to which Mr Cianfrano has referred are misconceived. The Agency has released documents B, C, E, F, H, I, J, K and M, which are tax invoices and itemised timesheets issued by the CSO, deleting information relating to hourly rates. They demonstrate (a) the CSO's total professional costs for the period of each invoice, and (b) a description of the work performed, on an item-by-item basis, with the corresponding fee. The applicant is clearly able to ascertain from this the amount the CSO has charged the respondent in connection with the matter generally and for a particular task. Disclosure of the CSO's rates can have no bearing on this.

25 It is submitted that the correct and preferable decision is to grant access to documents B, C, E, F, H, I, J, K and M with the exempt matter deleted.

Findings

26 The issue for determination here is whether the Tribunal should direct that the exempt matter be released. I have considered the arguments presented by the parties on the issues applicable in the exercise of the discretion. I considered similar arguments to those raised here in regard to Document L in my recent decision in Cianfrano v Director General, Attorney General's Department (No 2) [2007] NSWADT 231. In that decision I also referred to a decision of the Tribunal’s President in Cianfrano v Director General, Premier's Department [2007] NSWADT 216 where dealt with a claim to legal professional privilege. It serves no purpose to repeat the discussion here.

27 I have previously indicated that I consider that there is doubt as to whether the override discretion which arises by virtue of section 63 of the ADT Act read in conjunction with section 25(1)(a) of the FOI Act, extends to communications protected by legal professional privilege. I am persuaded by arguments presented by the Agency in regard to that issue. However, it is not necessary that I resolve that issue in this matter because, if a section 25(1) discretion does exist, I would not exercise it in Mr Cianfrano’s favour. For the reasons argued by the Department, I do not consider that there are strong grounds justifying the overriding of the exemption.

28 Similarly, I do not consider that the arguments presented in relation to documents B, C, E, F, H, I, J, K and M are sufficient to override the exemptions that I have found to apply in the present case. As the Agency has argued, I am satisfied that disclosure could reasonably be expected to have an unreasonable adverse effect on the business, professional, commercial or financial affairs. In the circumstances it is my view that the correct and preferable decision is to not grant access to those parts of the documents that are exempt. In my view, Mr Cianfrano’s arguments are misconceived.

29 It follows that the application for release of the exempt documents should be dismissed

Order

In accordance with the reasons provided Cianfrano v Director General, NSW Department of Commerce [2007] NSWADT 99 Documents B, C, E, F, H, I, J, K and M are to be released with the exempt matter deleted. The decision under review is otherwise affirmed.