Cianfrano v Director General, Premier's Department

[2007] NSWADT 216

CITATION:	Cianfrano v Director General, Premier's Department [2007] NSWADT 216
DIVISION:	General Division
PARTIES:	APPLICANT Robert Cianfrano RESPONDENT Director General, Premier's Department
FILE NUMBER:	063341
HEARING DATES:	30 April 2007
SUBMISSIONS CLOSED:	30 April 2007
DATE OF DECISION:	19 September 2007
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	access to documents - cabinet documents - access to documents - legal professional privilege - Freedom of Information Act - access to documents - cabinet documents - Freedom of Information Act - access to documents - legal professional privilege
MATTER FOR DECISION:	Principal application
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1982 (Vic) Freedom of Information Act 1989 Sydney Market Authority (Dissolution) Act 1997
CASES CITED:	Cianfrano v Director General, Premier’s Department [2006] NSWADT 137 Cianfrano v Director General, Premier’s Department [2006] NSWADTAP 48 University of New South Wales v McGuirk [2006] NSWSC 1362 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 Saggers v Director General, Attorney General’s Department [2005] NSWADT 193 Trade Practices Commission v Sterling (1979) 36 FLR 244 Waterford v Commonwealth (1987) 163 CLR 54 Attorney General (NT) v Kearney (1985) 158 CLR 500 Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 P v Greater Western Area Health Service [2007] NSWADT 87 Watts v Forests NSW [2007] NSWADT 197 General Manager, WorkCover Authority (NSW) v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502 News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 Secretary to the Department of Justice v Osland [2007] VSCA 96 Giannarelli v Wraith (No 2) (1991) 171 CLR 592 BY v Director General, Attorney General’s Department [2002] NSWADT 79
REPRESENTATION:	APPLICANT In person RESPONDENT T Chisholm, solicitor, Crown Solicitor's Office
ORDERS:	1. Decision under review affirmed; 2. Application for review dismissed

1 This decision deals with one matter that remains unresolved in connection with an application for access to documents under the Freedom of Information Act 1989 (the FOI Act or Act) that Mr Cianfrano made to the Premier’s Department (the agency) on 4 March 2005. Mr Cianfrano continues to press a challenge to the agency’s decision to refuse to disclose parts of a briefing note relating to an aspect of the Government decision-making process leading, ultimately, to the privatisation of the Sydney Markets in 2002.

2 Mr Cianfrano has over the last several years made numerous applications under the FOI Act to the various agencies involved in this decision-making process. He is fruit grower at Orange. He has been assisted by Mr Saggers, a former market trader, who has sometimes filed applications in his own name. In turn, they have brought many applications for review of negative agency determinations to the Tribunal.

3 When the present application for review first came before the Tribunal the determination under review was a refusal by the agency to process the request on the ground that it would involve an unreasonable diversion of resources. The Tribunal upheld the agency’s determination, and dismissed the application for review. Mr Cianfrano appealed. A new point was raised by him on appeal – whether the agency had abided by a Government policy requiring negotiation with an applicant to reduce the scope of a request before making a determination to refuse to process the request. The Tribunal found that the policy was applicable and the agency had not applied it. Accordingly, the Tribunal decision was set aside, and the matter remitted to the Tribunal with a recommendation that it be remitted in turn to the agency for reconsideration. See Cianfrano v Director General, Premier’s Department [2006] NSWADT 137; and Cianfrano v Director General, Premier’s Department [2006] NSWADTAP 48.

4 In the upshot Mr Cianfrano revised his request, and it was processed. The amended request dated 30 October 2006 sought access to:

‘… documents which had been authored and signed by Bob Carr MP as Premier of NSW. These documents will be in relation to the sale and lease of the Sydney Market Authority under the SMA Disillusionment [sic] Act. Further more the documents are to include and go to the sale of the crown land known as Flemington Markets and leased to Sydney Markets Limited.’

5 Three documents were identified as relevant to the request. They each carried the signature of the Premier. (Original determination, 16 December 2006, internal review determination, 22 January 2007.)

6 Of these, a copy of one was released (copy of the Deed of Assignment from the Ministerial Holding Corporation to Sydney Markets Ltd). Two were refused either in part or in whole.

7 The Tribunal gave further directions in February 2007, including a direction that the parties make submissions in relation to the claims for exemption and as to whether, nonetheless, the Tribunal should exercise its discretion to release any matter found to be exempt matter. The possibility of the Tribunal ordering discretionary release of an exempt document which the agency does not wish to release flows from the decision of the Supreme Court (Nicholas J) in University of New South Wales v McGuirk [2006] NSWSC 1362 (the UNSW case), decided 8 December 2006. The agency expressed its disagreement with the ruling, favouring the prevailing view in the Tribunal prior to that case that the scheme of the FOI Act did not confer such a discretion on the Tribunal. The Tribunal has since adopted the view that it is bound by the ruling, albeit that the observations were strictly obiter dicta in the context of the case. Presumably at some point the question will be revisited at Court of Appeal level.

8 Mr Cianfrano advised at hearing that he no longer sought access to one of the two refused documents (a letter containing legal advice dated 20 June 2002 from Ms Anderson of the Crown Solicitor’s Office to Mr Wayne Green, then Senior Project Manager, Developments Projects Unit, the Premier’s Department).

9 He now only sought access to those parts of the remaining document which had been withheld: Premier’s Department Briefing Note on the Deed of Assignment by the Ministerial Holding Corporation to enable the sale of the Sydney Markets property, dated 24 June 2002. The Note was prepared by Mr Green. It is signed by Mr Green, and counter-signed by his superior officers, Mr Dermody and Dr Gellatly and endorsed by the Premier with his signature.

10 At hearing the agency announced that it was now prepared to release parts of the Note. An order was made by consent to facilitate that step. The agency pressed its case for non-disclosure of dot points 3 and dot points 5 to 9 of the Briefing Note. The part of the document now released was tendered as Ex B, and the full document was tendered confidentially to the Tribunal as Ex C. (The dot points are not numbered in the original, they have been numbered in pencil on the full document tendered.)

11 In contrast to the position it had taken in the original determination and the internal review determination, the agency now confined its reliance on the Cabinet documents exemption to dot point 3 of the Note. As to dot points 5 to 9 of the Note, it now only relied on the Legal Professional Privilege exemption. Its case in respect of these elements of the Note was that it simply contained a report of relevant advice received from Ms Anderson, derived from the letter of 20 June 2002 already mentioned, and an oral discussion subsequent to the letter, between Ms Anderson and Mr Green.

Briefing Note: Dot Points 5 to 9

12 It is convenient first to deal with the claim to legal professional privilege. An agency may refuse a document that is an exempt document: s 25(1)(a). An exempt document is a document that contains exempt matter: s 6(1). What is an exempt document is dealt with by Schedule 1 made pursuant to s 6(1). Clause 10 provides:

‘ 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.’

13 It is sufficient, as the agency submitted, to adopt the following passages as to the nature and purpose of legal professional privilege from the judgment of McColl JA (with whom Handley and Hodgson JJA agreed) in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84:

‘67 Legal professional privilege is a rule of substantive law which enables a person to resist the giving of information or the production of documents to a third party which would reveal confidential communications between the person 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: Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (at [9]) per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Esso Australia Resources Ltd v Commissioner of Taxation .

68 The rationale of legal professional privilege is “that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline”: Grant v Downs (at 685); Attorney-General (NT) v Maurice (at 487); see also Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 per Mason J (at 74), per Deane J (at 114), per Dawson J (at 128).’

14 The interpretation to be given to cl 10 has been canvassed at length in a number of Tribunal and Appeal Panel decisions, some of them being cases brought by Mr Cianfrano or Mr Saggers. It is not necessary to repeat them at length here. See, for example, Saggers v Director General, Attorney General’s Department [2005] NSWADT 193 at [21] accepting as helpful the well-known categorisation of the types of circumstances that may found a claim to ‘advice’ privilege or ‘litigation’ privilege set out in Trade Practices Commission v Sterling (1979) 36 FLR 244, 245-6 by Lockhart J, often called the Lockhart categories.

15 The following propositions, as submitted by the agency, are also well established:

- the privilege attaches to the advice of government lawyers who are providing independent advice: Waterford v Commonwealth (1987) 163 CLR 54; WorkCover at [69]-[71]

- it only applies if the legal practitioner received or created the communication in that capacity for the purpose of the client obtaining professional legal advice: WorkCover at [72]

- the independence of State Crown Solicitors was recognised by Mason and Wilson JJ in Attorney General (NT) v Kearney (1985) 158 CLR 500 at 567.

16 Mr Green’s evidence was that s 11 of the Sydney Market Authority (Dissolution) Act 1997 produced a complication for effective completion of the assignment of all Government assets to Sydney Markets Limited (SML). Since 1997 SML had been Head Lessee under a Crown Lease. There were several sub-leases in place with SML as the lessor involving major lessees such as Woolworths and Coles. The sale process of 2002 necessarily involved the cessation of the Head Lease. Section 11 provided that in such a circumstance, the Government in the form of the Ministerial Holding Corporation would take over as lessor under any sub-leases. This was seen as undesirable. Mr Green sought the advice of the Crown Solicitor as to how this problem might be overcome. That gave rise to the execution of the Deed (copy released) under which the Ministerial Holding Corporation assigned all its right, title and interest in any sub-leases to SML.

17 The Tribunal is satisfied, from Mr Green’s evidence, that a relationship of lawyer-client existed between the Crown Solicitor’s Office and the Ministerial Holding Corporation, and the Government more generally, in relation to these matters. The Tribunal is satisfied that the Crown Solicitor’s Office possesses the requisite degree of independence. Consequently the relationship between Mr Green and Ms Anderson was one of client-lawyer in the usual sense.

18 As to dot points 5 to 9, Mr Green states in his affidavit that they contain legal advice provided to the Ministerial Holding Corporation derived from either Ms Anderson’s letter or the subsequent conversation between him and her. He said that he had spoken to Ms Anderson after receiving her letter, and reflected in his note some additional points. He had not taken a separate note. The Tribunal accepts Mr Green’s evidence.

19 The agency submits that dot points 5 to 9 belong to the following circumstances referred to in category (d) of the Lockhart categories, i.e. notes, memoranda, minutes or other documents made by the client or officers of the client of communications which are themselves privileged.

20 The Tribunal has read dot points 5 to 9 and the document as a whole. The exemption is established, and the contents are privileged.

21 The question now arises whether nonetheless the Tribunal should direct that the exempt matter be released. It is well accepted that agencies may release exempt documents, in keeping with the desirability of promoting to the maximum extent consistent with the proper administration of government the public right to know. By virtue of s 63(2) of the Administrative Decisions Tribunal Act 1997, the Tribunal, in determining an application for a review of a reviewable decision, may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. In the UNSW case the Supreme Court concluded that this provision armed the Tribunal with power when read in conjunction with s 25(1)(a) to release an exempt document.

22 Consequently, the Tribunal has a broad, unfettered discretion to release exempt documents, matching that of the agency. It is not a restricted residual discretion of the kind given to the Victorian and Commonwealth tribunals. For example the Victorian Act, s 50(4) of the Freedom of Information Act 1982 (Vic) provides:

‘On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.’

23 There have now been some cases in the Tribunal where a discretionary release of exempt material has occurred, for example Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 (Handley ADP), a case where Mr Cianfrano appeared as agent for the review applicants; P v Greater Western Area Health Service [2007] NSWADT 87 (Handley ADP); and Watts v Forests NSW [2007] NSWADT 197 (Montgomery JM).

24 At this early point in the exercise of this power, the following principles to guide the exercise of the discretion have emerged:

(1) The Tribunal must first ascertain whether the matter is exempt matter.

(2) The Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption.

(3) The question of whether there are strong grounds should take account of the objects of the FOI Act as expressed in s 5.

(4) Even in the case of matter that falls within one of the ‘restricted documents’ categories of exemption (see cll 1 (Cabinet documents), 2 (Executive Council documents) and 4 (Documents affecting Law Enforcement and Public Safety) of Schedule 1) the only absolute exemption arises where the Minister has granted a certificate pursuant to s 59.

(5) In the case of restricted documents, particular account should be taken of the concern addressed by s 5(2)(b), i.e. whether or not a restriction of access is ‘reasonably necessary for the proper administration of government’.

25 As can be seen, the objects clause of the Act, s 5, now has a greater degree of prominence than previously in Tribunal deliberations. Section 5 provides:

‘(1) The objects of this Act are to extend, as far as possible, the rights of the public:

(a) to obtain access to information held by the Government, and

(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.

(2) The means by which it is intended that these objects are to be achieved are:

(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and

(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and

(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.

(3) It is the intention of Parliament:

(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and

(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.

(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.’

26 In General Manager, WorkCover Authority (NSW) v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502, the Court of Appeal placed significant weight on the ‘general policy of disclosure’ enshrined in the FOI Act, and on the fact that s 5(3) requires that the Act be interpreted and applied so as to further its objects. McColl JA (with whom Handley and Hodgson JJA agreed) said at [151]; and LR 534:

‘The Full Federal Court’s approach [in News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64], in my view, accords with the s 5(3) obligation to interpret and apply the FOI Act so as to further its objects, bearing in mind that while the Act gives a legally enforceable right to be given access to documents held by the Government, that right is subject to such restrictions as are reasonably necessary for the proper administration of the Government: s 5(2)(a) and (b). Determining whether documents should be disclosed involves balancing those two matters.’

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.

28 The public interests which the secrecy afforded by legal professional privilege seeks to serve are very important ones. They were referred to recently by the Victorian Court of Appeal in Secretary to the Department of Justice v Osland [2007] VSCA 96. The review tribunal (the Victorian Civil and Administrative Tribunal) decided that, in exercise of the public interest discretion, a privileged document should be released. The document contained the advice of three QCs to the Government in respect of a Petition of Mercy seeking a Pardon. The petitioner was a woman who had been convicted and imprisoned for murder of a husband. She spent nine years in gaol before being released on parole. The deceased had inflicted great physical cruelty on her and the family over many years. There has been a strong public campaign in support of Ms Osland’s petition. The Court of Appeal set aside the review tribunal’s decision.

29 Maxwell P noted at [84] (footnotes omitted):

‘84 … As the High Court has stated, the doctrine of privilege is itself the product of a balancing exercise between competing public interests, whereby the public interest in the "perfect administration of justice" is accorded paramountcy over the public interest that requires the admission in evidence of all relevant documents. The public interest factors which underpin the privilege support all privileged documents uniformly. Those factors do not vary depending upon the particular content of a privileged document or upon whether the document has, or lacks, current relevance. As McHugh J said in Giannarelli v Wraith (No 2) [(1991) 171 CLR 592 at 601] said:
“[O]nce legal professional privilege attaches to a document ... that privilege attaches for all time and in all circumstances.”’

30 It will be seen that Maxwell P rejected the suggestion that the passage of time will necessarily be relevant to the protection of certain classes of documents. In these remarks, his Honour focused on the intrinsic value of upholding the privilege regardless of any particulars as to the content of the document or the currency of the issues or controversies with which it deals. This view reflects a concern that any ‘watering down’ of the secrecy traditionally accorded to communications protected by legal professional privilege would reduce the preparedness of clients to communicate frankly with their legal advisers. In turn, the administration of justice would be impaired.

31 There are, in my view, no countervailing factors here of such significance as to warrant discretionary release of the summary of that advice given by Mr Green in his Briefing Note.

32 Mr Cianfrano has in this case, as in many of the others that I have dealt with, made generalised allegations of corrupt and nefarious dealing on the part of the Government in its decisions in relation to the privatisation of the Sydney Markets. There is nothing in any of the material I have seen to support any such concern.

33 Clearly the decision to sell the Sydney Markets was one of public importance involving the disposal of a facility with a long history of public ownership and operation. I have taken this factor (favouring release) into account in deciding that the residual discretion not be exercised.

Briefing Note Dot Point 3

34 On one view, the question now to be determined by the Tribunal is whether the contents of dot point 3 comprise ‘matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet’ (cl 1(1)(e)). (Clause 1(4) provides: ‘In this clause, a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet.’)

35 The Tribunal has read the contents of dot point 3, and agrees with the agency’s (open) submission that dot point 3, when read together with Mr Green’s evidence, plainly describes a decision of the Budget Subcommittee of Cabinet. This is sufficient to attract the protection of cl 1(1)(e). The exemption is established.

36 However, the agency considers that the above ruling is beyond the powers given to the Tribunal in respect of restricted documents. A restricted document means a document referred to in any one or more of the provisions of Part 1 of Schedule 1: s 6(1). Clause 1 (the Cabinet documents exemption) is one of the provisions in Part 1 of Schedule 1.

37 The agency made detailed submissions as to why it was not correct for the Tribunal to go so far as determining whether a document was an exempt document when dealing with a restricted document. If the Tribunal has no power to decide that a restricted document is an exempt document, it would seem to follow that it has no power to order discretionary release of an exempt document that is also a restricted document. That is also the agency’s submission.

38 The view so far favoured in the Tribunal (per Handley ADP in particular) is that there is no absolute bar on the possible release of restricted documents, other than in instances where a Ministerial certificate under s 59 is issued. Section 59 provides that the Minister responsible for the Act (the Premier) may certify, by means of a Ministerial certificate, that a specified document is a restricted document. The certificate shall ‘except for the purposes of Division 3 of Part 5 [of the Act]’ be taken to be ‘conclusive evidence’ of that fact. Division 3 of Part 5 contains a mechanism for challenging a Ministerial certificate in the Supreme Court.

39 In instances where no Ministerial certificate has issued but the claim is made that the document is a restricted document (a not uncommon situation in the experience of the Tribunal), the applicant may ask the Tribunal ‘to consider the grounds on which it is claimed that a document is a restricted document’: s 57(1).

40 The agency’s contention is that the Tribunal’s jurisdiction in respect of restricted documents is exhausted once it is demonstrated that there are reasonable grounds demonstrated for asserting the exemption. The agency has taken the opportunity of this case to ask me to revisit views I expressed in the case of BY v Director General, Attorney General’s Department [2002] NSWADT 79 as to the relationship between s 57 of the FOI Act and the ordinary review jurisdiction of the Tribunal in FOI matters. There I held that s 57 did not have the effect of precluding the Tribunal to go on, where reasonable grounds existed, and decide whether the exemption was made out. My reasons parallel to some degree the kind of reasoning that prevailed in the Supreme Court in the UNSW case, in that I referred to the role of the Tribunal under s 63 (in this instance s 63(1) not s 63(2)), and saw as significant the absence of any express ouster provision.

41 Careful and detailed arguments were put as to why my reasons in BY were wrong. I accept that the reasoning in BY is not free from doubt. While accepting that there is a desire that the question be revisited, I am reluctant to do that on this occasion. The Tribunal has before it a straightforward and narrow circumstance – the official record of a Cabinet deliberation.

42 In my view, there will be many cases where the only question is whether a document that might fall into a restricted documents category fits a statutory description of a very factual kind. ‘Official record’ of a Cabinet deliberation is a classic example. In these instances the ‘reasonable grounds’ inquiry and the ‘exempt documents’ inquiry (accepting for the sake of the argument that the second is within jurisdiction) will elide. This is a case of that kind.

43 I think it would be better to revisit the authority of BY in a context where the stages in the decision-making process are more clearly differentiated, that is, a case where, whilst there might be arguable ‘reasonable grounds’ for claiming that the document is a restricted document, there remains a real debate as to whether a relevant exemption applies. This kind of debate is more likely to arise around exemption categories which are expressed in language that is more evaluative in tone, as is seen in a number of the exemption categories in cl 4 of Schedule 1.

44 I am also mindful that in this case I only have submissions from an experienced lawyer on one side (the agency). It would be better, I think, for the question to be addressed in a case where there is a live controversy as to whether, even if reasonable grounds exist to claim a document is a restricted document, it might, on closer analysis be open to find that the exemption was not established, or, even if exempt, discretionary release should actively be considered. In my view, this is not a sufficiently strong or contentious situation to provide a suitable vehicle for the fuller discussion.

45 If the Tribunal does have the power to order discretionary release of a restricted document I would not exercise it on this occasion. Any release of an official record of a Cabinet discussion, other than by decision of the Premier or the Cabinet, is at odds with the long established conventions surrounding the operation of the Cabinet in the Westminster system of Government. While a particular text may be relatively innocuous, or be close in terms to a public announcement, it is not desirable, for reasons similar to those given by Maxwell P in Osland in connection with legal professional privilege, to compromise the convention.

Order

1. Determination under review affirmed.

2. Application for review dismissed.