Cianfrano v Director-General, Premier's Department NSW & Anor
[2004] NSWADT 255
•11/09/2004
CITATION: Cianfrano v Director-General, Premier's Department NSW & anor [2004] NSWADT 255 revised - 17/12/2004 DIVISION: General Division PARTIES: APPLICANT
Robert Cianfrano
FIRST RESPONDENT
Director-General, Premier's Department NSW
SECOND RESPONDENT
Sydney Markets LimitedFILE NUMBER: 033268 HEARING DATES: 19/05/2004 SUBMISSIONS CLOSED: 05/19/2004 DATE OF DECISION:
11/09/2004BEFORE: Higgins S - Judicial Member APPLICATION: access to documents - business affairs - access to documents - cabinet documents - access to documents - Executive Council documents - access to documents - internal working documents - access to documents - legal professional privilege - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - cabinet documents - Freedom of Information Act - access to documents - Executive Council documents - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - legal professional privilege MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: Bennett v The Vice Chancellor, University of New England [2002] NSWADT 8
Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner (2002) 213 CLR 543
Director-General Department of Community Services v Latham [2000] NSWADTAP 21
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135
Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADT 40
Preston v Chief Executive, Casino Control Authority; Star City Pty Limited & TABCORP Holdings Ltd v Chief Executive, Casino Control Authority [2003] NSWADT 165 at [50]
Re Ecclestone and Department of Family Service and Aboriginal and Islander Affairs (1993) 1 QAR 60
Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112 at 123
Trade Practices Commission v Sterling (1979) 36 FLR 244
Waterford v Commonwealth (1987) 163 CLR 54 Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501REPRESENTATION: APPLICANT
In person
FIRST RESPONDENT
M Allars, counsel
SECOND RESPONDENT
R Davis, solicitorORDERS: (1) The decision of the Director-General in respect of the following documents is affirmed: ; File SPD/03648, Part 36:; Document No. 1, 4, 5, 6, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 25; File SPD/03648 Part 35: Document No 1; File SMA Taskforce 2002 314:; Document No 7 (except the Deed), 11 (except the Deed and the emails dated 20/06/02 and 21/06/02), 17 (except letter, dated 12/06/02, from Anderson to Sakaris and letter, dated 7/06/02, from Friedeberg to Anderson), 19 (except letter, dated 5/06/02, from Friedberg to Anderson), 22, 24, 25 (except Deed), 26, 27, 28, 30 (except Special Conditions), 33 (except Special Conditions), 34, 35, 37, 39, 40 and 41; (2) The decision of the Director-General in respect of the following documents is set aside and in substitution thereof a decision that Mr Cianfrano be given access to these documents:; File SPD/03648 Part 36; 3, 18, 22, 23, 24, 25, 26, 27 and 28 ; File SMA Taskforce 2002 314:; DocumentNo 4, 5, 6, 8, 9, 10, 11 (emails dated 20 & 21/06/02 only), 12, 13, 14, 15, 16, 17 (letter dated 12/06/02 from Anderson to Sakaris and letter dated 7/06/02, from Friedeberg to Anderson only), 18, 19 (letter dated 5/06/02 from Friedberg to Anderson only), 20, 21, 22 (Deed only), 31 (paragraphs one and two only) and 38 ; (3) The decision of the Director-General in respect of the following documents be set aside and remitted for reconsideration in accordance with this decision pursuant to s. 63(3)(d) of the Administrative Decisions Tribunal Act 1997: ; SM Taskforce 2002 314 file; Document 7 (the Deed only), 11 (the Deed only), 25 (the Deed only), 30 (the special conditions only), 31 (the paragraphs following the second paragraph only), 33 (the special conditions only).; (4) Mr Cianfrano be provided with a copy of Document No 25 in File SPD/03648, Part 36 with the exempt material deleted.
Background
1 This is an application by Mr Cianfrano seeking review of a decision of the Director-General of the Premier’s Department (“the Director-General”)in refusing him access to documents that he had requested pursuant to the Freedom of Information Act 1989 (“the FOI Act”).
2 In a letter dated 10 March 2003, to the Freedom of Information Officer at the Premier’s Department (“the Department”), Mr Cianfrano requested three categories of documents relating to the “Flemington Markets land and improvements that were sold to Sydney Markets Limited”. On 8 April 2003, he amended his application and requested access to the following documents:
- “All internal working documents and all factual and statistical material relating to the valuation and the sale of the Flemington Markets Land and Improvements that were sold to Sydney Markets Ltd between June 2001 and July 2002”.
3 In his amended request for access to documents, Mr Cianfrano also stated that he was making his request in his capacity:
- “As information advisor to the Flemington Growers/Tenants and shareholders of Sydney Markets Ltd. I tend to distribute the documents widely amongst those interested Shareholder”.
4 On 30 June 2003, a delegate of the Director-General made a determination in respect of Mr Cianfrano’s amended request. That determination was set out in the format of an annexure, which listed the documents the Department held and which fell within the terms of Mr Cianfrano’s amended application. Against each document the Director-General’s delegate indicated whether the document would be released or not released. For those documents that were not to be released, the annexure identified the exemption that was relied on in order to refuse such access. In total, there were 71 documents identified in the annexure and of these only 8 were to be released in full. Access to the remaining documents was refused on the grounds of exemptions contained in cl.10 (Legal Professional Privilege), cl.7 (Business Affairs) and cl.1 (Cabinet Documents) of Schedule 1 of the FOI Act.
5 Mr Cianfrano subsequently made an internal review request, which was determined by the Director-General on 16 September 2003. In his internal review decision, the Director-General affirmed the original decision with the exception of two documents for which an exemption had previously been claimed. As a result of the internal review, the Director-General determined that these two documents were to be released in addition to the 8 documents, which had been identified in the original decision.
6 The Tribunal has jurisdiction to hear and determine this application pursuant to s.53(1) and (3)(a) of the FOI Act and s.38 of the Administrative Decisions Tribunal Act.
Hearing
7 The application was dealt with by the Tribunal at planning meetings on 21 October 2003, 4 November 2003 and 16 December 2003. Initially Mr Cianfrano and the Department sought to resolve their differences, however as they could not be resolved the matter was set down for hearing on 22 March 2004. On this date, Sydney Markets Ltd made an application to be joined as a party. The Tribunal joined Sydney Markets Ltd as a party as it clearly had an interest in the proceedings as some of the documents were documents relating to its business and financial affairs. The hearing was then adjourned to 19 May 2004 in order to enable Sydney Markets Ltd to file and serve any evidence on which it sought to rely, together with written submissions.
Issues
8 The main issue in this application was whether the exemptions relied on by the Director-General did in fact apply to the documents concerned. In addition to this, Mr Cianfrano raised the issue of adequacy of search. In particular, he questioned the extent of the search for documents coming within his request.
Relevant legislation
9 The relevant legislation is that contained in the FOI Act.
10 Part 3 of the FOI Act makes provision for any person to make an application for access to documents held by a government agency or a Minister (s.16 and s.17, FOI Act). Where a person makes such an application the agency is required to determine whether access to the document is to be given or refused (s.24, FOI Act). Where the agency fails to determine an application within 21 days after receipt of the application, the agency is taken to have refused access to the documents requested for the purpose of an internal review (s.24(2) and s.34, FOI Act).
11 An agency is able to refuse access to a document only on specified grounds (s.25, FOI Act). One such ground is that the document is an “exempt document” (s.25(1)(a), FOI Act).
12 An “exempt document” includes a document referred to in one or more of the provisions in Schedule 1 of the FOI Act (s.6 FOI Act). In this application, the relevant exemptions in Schedule 1 are as follows:
- “1 Cabinet Documents
(1) A document is an exempt document:
- (a) if it is a document that has been prepared for submission to Cabinet (whether or not it has been so submitted), or
(b) if it is a preliminary draft of a document referred to in paragraph (a); or
(c) if it is a document that is a copy of or part of, or contains an extract from, a document referred to in paragraph (a) or (b); or
(d) if it is an official record of Cabinet; or
(e) if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet.
- (a) if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet; or
(b) if 10 years have passed since the end of the calendar year in which the document came into existence.
(4) In this clause, a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet.
2 Executive Council Documents
(1) A document is an exempt document:
- (a) if it is a document that has been prepared for submission to the Executive Council (whether or not it has been so submitted), or
(b) if it is a preliminary draft of a document referred to in paragraph (a), or
(c) if it is a document that is a copy of or part of, or contains an extract from, a document referred to in paragraph (a) or (b), or
(d) if it is an official record of the Executive Council, or
(e) if it contains matter the disclosure of which would disclose information concerning any deliberation or advice of the Executive Council.
- (a) if it merely consists of:
(i) matter that appears in an instrument that has been officially published (whether in the Gazette or elsewhere), or
(ii) factual or statistical material that does not disclose information concerning any deliberation or advice of the Executive Council, or
(b) if 10 years have passed since the end of the calendar year in which the document came into existence.
7 Documents affecting business affairs
(1) A document is an exempt document:
- …
(c) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and
(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.
(1) A document is an exempt document if it contains matter the disclosure of which:
- (a) would disclose:
(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or
(ii) any consultation or deliberation that has taken place,
in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and
(b) would, on balance, be contrary to the public interest.
- (a) matter that appears in an agency’s policy document, or
(b) factual or statistical material.
(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 Where a document contains information concerning the business affairs of a third party to an FOI application, s.32 of the FOI Act provides that an agency is not to give access to the document unless it has taken such steps as are reasonably practicable to obtain the views of the third party.
14 Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document where it is practicable to give access to a copy of the document from which the exempt matter is deleted and the FOI applicant wishes to be given such a copy.
15 Section 55 of the FOI Act provides that the Tribunal, when determining a review application is to ensure that it does not, in its reasons for its decision or otherwise, disclose any exempt matter.
16 Section 61 of the FOI Act provides that in proceedings under the Act, the burden of establishing that the agency’s determination is justified lies on the agency.
Evidence
17 Evidence tendered to the Tribunal at the hearing of this matter was a copy of Mr Cianfrano’s original FOI request, his amended FOI request, the original determination by a delegate of the Director-General dated 30 July 2003, and the internal review determination of the Director-General dated 16 September 2003. The Director-General also tendered into evidence two statements by Simon David Carroll, who is the Manager, Freedom of Information and Privacy of the Department. Both statements are dated 15 March 2004. In one statement Mr Carroll describes the steps that were taken by the Department to locate documents falling within the scope of Mr Cianfrano’s request as amended. In that statement, Mr Carroll said that when Mr Cianfrano made his original request, each of the Assistant Director-General of the various divisions of the Department and the Executive Director/Chief of Staff of the Department were contacted and requested to identify whether or not they held documents coming within the terms of the request. The Strategic Projects Division responded by stating that it held documents, however all other Divisions indicated that they did not hold any relevant documents.
18 He went on to say that in addition to making these requests, searches were made of electronic and paper copies of files, emails and other sources of documents. Electronic databases were also interrogated in order to locate and retrieve any document relevant to the original FOI application. The original search identified 38 separate files that fitted the description of Mr Cianfrano’s original FOI request. These files contained 8,120 individual document pages and as a result of the volume of this material, Mr Cianfrano was requested to review the extent of his original application. Following Mr Cianfrano’s amended FOI request, the Department search resulted in identifying three files, which comprised 1,969 individual document pages as coming within the amended request.
19 The three files identified were file SPD/03648 Part 35, SPD/03648 Part 36 and SMA Taskforce 2002 31.4. The documents in the relevant categories in these three files were then inspected and those documents coming with Mr Cianfrano’s amended request were identified. These are the documents listed in the annexure to the original determination.
20 The second statement of Mr Carroll relates to the role of the Department and the Crown Solicitors Office in respect of the sale of the Flemington Markets. He also commented on a number of documents for which an exemption had been claimed. These comments are dealt with in more detail below. In respect of the other matters contained in this affidavit Mr Carroll stated the following:
- (a) in 1999 the Government resolved to attempt to negotiate the Crown’s reversionary interest the Flemington Markets site to Sydney Markets Ltd. The Department were directed to act as coordinating agency, and the person having carriage of the matter within the Department was Wayne Green in his capacity as Project Manager for the Government Trading Enterprise Reform Unit. Other agencies responsible for the sale included the Department of Public Works and the Treasury;
(b) in September 2001, the Crown Solicitor was retained by the Department as the agency responsible for coordinating the sale of the site by the Crown, and to act on the Crown’s behalf in connection with the sale. The persons responsible for the carriage of the matter within the Crown Solicitor’s office were Douglas Wilson and Jennifer Anderson;
(c) the solicitors acting on behalf of Sydney Markets Ltd in respect of the sale were Middleton Moore & Bevan (now known as Acuiti Legal);
(d) he said, at [7]:
- “The legal advice received from the Crown Solicitor was communicated in confidence to officers within the New South Wales Public Service who required the legal advice in order to carry out their duties in relation to the transaction. Some of those officers also gave instructions in relation to the transaction to the Crown Solicitor. It is my understanding gained from my experience in Premier’s Department that, where a significant commercial transaction is being negotiated by the government, and is the subject of a decision by the Budget Committee of Cabinet and the Executive Council, officers who receive relevant information have a heightened awareness of the requirement of confidentiality”
- “In the circumstances of the case, there was a public interest in the government being in a position to consider in confidence the proper approach and strategy in engaging in major commercial transactions. It is my view that to disclose such communications, occurring within the government for the purpose of making decisions in relation to such transactions, would have a serious and significant effect upon the ability of the government to undertake such negotiations, particularly where the transaction involved policy decisions for consideration at a senior level within government. Such deliberations must be allowed to occur in an uninhibited fashion in order that the government secures the best outcome in the public interest”.
21 Mr Carroll was also called to give oral evidence and to be made available for cross-examination. During this evidence Mr Carroll made it clear that he had no involvement in the decision-making process of the sale of Sydney Markets.
22 Sydney Markets Ltd tendered into evidence two copies of a Memorandum (No. 2000-11) from the Premier. The Memorandum was entitled “Disclosure on Information on Government Contracts with Private Sector”. A copy of this document had been attached to the written submissions of Mr Cianfrano and also the written submissions of the Director-General. The essence of the guideline was to clarify the policy on disclosure of information relating to Government contractual arrangements with the private sector. The guideline specifically states that it had “immediate effect” and applied “to all contracts entered into by NSW Government agencies from the date of this Memorandum”. The date of the memorandum was 27 April 2000. The guidelines separated contracts into three categories. The first category was a contract for a sum of less than $100,000, the second category was a contract for the value of $100,000 and above, and the third category was a contract for $5,000,000 and above involving private sector financing, land swaps, asset transfers and similar arrangements. The guidelines provided that those matters listed in Schedules 1 and 2 of the Guideline were to be routinely released within 90 days of award of the contract. The guidelines also set out items that were not to be disclosed for any contracts. These included the contractors financing arrangements, the contractors cost structure or profit margins or any other matters where disclosure would place a contractor at a substantial commercial disadvantage with its competitors, both at the time of entering into the contract and any later date when there would be an effect on future competition arrangements.
Reasons for Decision
23 The role of the Tribunal is to determine whether the determination of the Director-General is the correct and preferred decision, having regard to the relevant facts and applicable law: see s.63 Administrative Decisions Tribunal Act 1997.
24 As there are a large number of documents involved in this application, it is convenient to deal with them in accordance with the categories for which exemption has been claimed. These are discussed below.
Adequacy of search
25 Mr Cianfrano quested the adequacy of search on the basis that the documents he had been provided with and those for which an exemption had been claimed did not include a valuation of the Flemington Markets. It was his contention that one would expect the Premier’s Department to have obtained a valuation when selling such a significant asset of the Crown.
26 While I can understand Mr Cianfrano’s concerns, the fact that no valuation has been disclosed or identified in the exempt material does not necessarily lead to the conclusion that there has been an inadequate search for documents coming within his request. At all times the Department was aware of the fact that as part of his FOI request Mr Cianfrano was seeking copies of any valuations of the Flemington Markets and I am satisfied from the material contained in Mr Carroll’s affidavit that there has been an adequate search for all documents that came within the terms of Mr Cianfrano’s FOI request.
Legal Professional Privilege
27 The Director-General has claimed the exemption of legal professional privilege in respect of the majority of the documents. These documents are identified as follows:
- -File SPD/03648, Part 36: Document No 1, 4, 8, 9, 11, 12, 13, 15, 16, 17A, 20.
-File SM Taskforce 2002 31.4: Document No. 4, 5, 6, 7, 8, 9 to19, 21, 22, 25, 26, 27, 28, 30, 33, 34, 35, 37, 38, 39, 40, 41.
28 Ms Allars, who appeared on behalf of the Director-General explained that these documents fell into four specific categories as follows:
- (a) correspondence between the Crown Solicitor’s Office and the Department;
(b) draft correspondence by the Crown Solicitor’s Office to Middleton Moore & Bevan that was sent to the Department for approval prior to it being sent;
(c) memoranda or facsimile within or between the Department, Treasury or the Department of Public Works and Services, enclosing covering letters from the Crown Solicitor’s Office or the Department and enclosing draft correspondence with Middleton Moore & Bevan, for comment or approval; and
(d) copies of correspondence to or from agencies, or Middleton Moore & Bevan, written by or received by the Crown Solicitor’s Office and provided to the Premier’s Department, or Treasury or the Department of Public Works and Services, for information relating to the transaction.
29 The principles in relation to legal professional privilege under the common law and under the Evidence Act 1995 (NSW) are well established since the High Court decision in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 as affirmed in Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner (2002) 213 CLR 543.
30 I recently dealt with these principles in Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135, and they were also dealt with by the Appeal Panel in Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADT 40. The decision of the Appeal Panel is subject to appeal, however, until set aside, the Tribunal is bound by the principles enunciated by the Appeal Panel. In summary, these principles are as follows:
- (a) legal professional privilege arises from a lawyer/client relationship and applies to “confidential communications” between the lawyer (as legal advisor) and the client where the dominant purpose of the communication is either:
- (i) to enable the legal advisor to give or the client to receive legal advice; or
(ii) to be used in pending or contemplated proceedings. In such cases, confidential communications with third parties (non-agent third party) may also be privileged if they are for use in such proceedings (see Hynes supra at [37] and Law Society of NSW supra at [27]).
In my opinion, the submissions of Sydney Markets Ltd have stated the principles of legal professional privilege too broadly;
(b) the privilege also applies to confidential communications between government agencies and their salaried legal officers which were undertaken for the dominant purpose of obtaining or giving legal advice or for pending or contemplated litigation (see Waterford v Commonwealth (1987) 163 CLR 54 at 62 and 73);
(c) the privilege extends to advice which is of a non-legal character where that non-legal advice is connected to the giving of legal advice or for contemplated or pending litigation (see Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 550; Waterford (supra) at 66; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246);
(d) the privilege extends to copies of documents that are not privileged where the copy is made for the dominant purpose of obtaining legal advice or for use in pending or contemplated litigation (see Australian Federal Police (supra) at 509 and 597).
(e) the privilege does not attach to documents that evidence transactions such as contracts, conveyances, declarations of trust, etc, even if they are delivered to a solicitor or counsel for advice or use in litigation (see Baker v Campbell (1983) 153 CLR 52 at 86, 112 and 122-123);
(f) any extension of the scope of the privilege must not go beyond the rationale for the privilege (see Law Society of New South Wales (supra) at [33-35] and the authorities cited therein). That rationale being “the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client” (see Fagan v State of New South Wales [2004] NSWCA 182 at [71];
(g) the privilege is waived if the confidential communication is disclosed to a third party, either expressly or inadvertently (see Mann v Carnell (1999) 201 CLR 1; Goldberg v Ng (1995) 185 CLR 83 and Attorney General (NT) v Maurice (1986) 161 CLR 475).
31 The authorities constantly emphasise that for a document to attract privilege it must be established that it came into existence for and was prepared for the obtaining or giving of legal advice or for use in pending in contemplated litigation (see O’Reilly v Commissioner of State Bank of Victoria (1982) 153 CLR 1 at 22). As mentioned above, following the decision in Esso (supra), this need not be the sole purpose for which the document came into existence but it must be the dominant purpose.
32 As mentioned above, privilege does not extend to documents that evidence transactions such as contracts. In this regard, in Baker v Campbell (supra) Dawson J said:
- “There is no privilege for physical objects other than documents and there is no privilege for documents which are the means of carrying out, or are evidence of, transactions which are not themselves the giving or receiving of advice or part of the conduct of actual or anticipated litigation”.
33 In Parker v DCT (Qld) [1985] 1 Qd R 275 at 276, Andres SPJ said:
- “Disclosure of the nature of a transaction or matter in respect of which legal advice is sought or given is not privileged unless the disclosure reveals the communication itself, which may occur in the case of detailed bills of costs, for example.”
34 In my opinion, the same principle applies to any document exchanged in confidence between a solicitor and the client. For example, where the solicitor forwards to his client a copy of a letter received from the solicitor of the opposing party and the letter is forwarded for the dominant purpose of receiving instructions and giving legal advice the communication of this letter is privileged. However, if the letter is forwarded for information only or another purpose it does not attract the privilege. That is, it is not connected with a confidential communication that is privileged. The same would apply to draft agreements prepared by the solicitor, on instructions from the client, and forwarded to the client in confidence for the dominant purpose of giving legal advice and/or seeking further instructions for the provision of legal advice (see Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCA 1181 and Australian Rugby Union Ltd v Hospitality Group Pty Ltd and Ors [1999] FCA 1061).
35 It is also well established that a disclosure of a privileged communication to a third party does not always result in a waiver of a privilege. This is particularly so where the disclosure is for a limited purpose (see Australian Rugby Union Ltd supra, Abigroup Ltd v Akins (1997) 42 NSWLR 623, State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224 and Woollahra Municipal Council v Westpac Banking Corp (1994) 33 NSWLR 529; c.f. Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125). This means, for example, where a solicitor ’s communication (e.g. a letter) with an opponent’s solicitor, discloses the contents of a privileged confidential communication between the solicitor and the client, and it is established that the circumstances were such that this disclosure was limited and that the opponent’s solicitor was bound to retain the confidentiality of that communication, then the privilege has not been waived in respect of a disclosure at large.
36 In this application, it is not disputed that Douglas Wilson and Jennifer Anderson of the Crown Solicitor’s Office were solicitors, and that the officers of the Premier’s Department, the Treasury Department and the Department of Works were officers of a client Department of the Crown Solicitor’s Office. However, as the abovementioned principles demonstrate, privilege does not attach to each and every communication between them, even where that communication is confidential. It only applies where it can be shown that the dominant purpose of the communication was for one of the purposes set out in paragraph 30[a] above. Accordingly, it is a question of fact to be determined from the content of the documents and any other relevant evidence. In this regard, Mr Carroll’s evidence is that the officers of the Crown Solicitor’s Office had a dual role, that of a legal advisor and that of a co-ordinator of the relevant agencies of the Crown in respect of the sale of Sydney Markets.
37 I have examined each of the documents that the Department has provided the Tribunal on a confidential basis and I note that many of the documents for which privilege has been claimed in fact consist of more than one document. The additional documents all form attachments or enclosures to the document, which was identified on the annexure of the original decision and the internal review decision and for which the exemption was claimed. These attachments and enclosures must also be examined to determine whether they also attract the privilege. As mentioned above, they will attract the privilege if they were brought into existence for the requisite purpose and where they are so connected to the privileged communication that they are also privileged or a disclosure of the document will disclose the contents of the privileged communication.
38 In his affidavit, Mr Carroll identified the attachments or enclosures by providing details of the nature of the document and where applicable the date of the document, the name of the author and the recipient. With this disclosure I have assumed that the fact that these particular attachments and enclosures were included as part of a privileged confidential communication is not privileged. Accordingly, the only question is whether these attachments and enclosures are themselves a document that was brought into existence for the requisite purpose or whether they are so connected to the document that was brought into existence for that purpose that they are also privileged.
39 I find that the following documents and any attachment or enclosure to those documents, unless specified otherwise, are privileged and exempt:
- File SPD/03648 Part 36: Document No. 1, 4, 8, 9, 11, 12, 13, 15, 16, 17, 20 and 25.
SM Taskforce 2002 314 file: Document No 7 (except the Deed), 11 (except the Deed and the emails dated 20/06/02 and 21/06/02), 17 (except letter, dated 12/06/02, from Anderson to Sakaris and letter, dated 7/06/02, from Friedeberg to Anderson), 19 (except letter, dated 5/06/02, from Friedberg to Anderson), 25 (except Deed), 26, 27, 28, 30 (except Special Conditions), 33 (except Special Conditions), 34, 35, 37, 39, 40 and 41.
40 In respect of those attachments identified above and which appear to be documents that evidence a transaction (i.e. Document No 7, 25, 30 and 33) there is insufficient material before the Tribunal to determine whether the exemption applies. Where these are drafts that have come into existence for the dominant purpose for seeking instructions and the giving of legal advice then they will attract the privilege. However, where they evidence a transaction that was in fact entered into then they are not privileged. Similarly, if there has been a disclosure of the contents of these documents in any event (e.g. to the solicitors for Sydney Markets Limited) there will have been a waiver of the privilege unless it can be shown that the disclosure was for a limited purpose. As these attachments may attract the privilege, in my opinion, it is appropriate that the determination in respect of these documents be set aside and remitted to the Director General for further consideration pursuant to s. 63(3)(d) of the Administrative Decisions Tribunal Act 1997.
41 In respect of the remaining annexures (i.e. Document No 11 emails dated 20 & 21/06/02, Document 17 letter dated 12/06/02 from Anderson to Sakaris and letter dated 7/06/02, from Friedeberg to Anderson and Document 19 letter dated 5/06/02 from Friedberg to Anderson) in my opinion, from the material before the Tribunal I am not satisfied that these documents were brought into existence for the dominant purpose of the Department receiving legal advice from the Crown Solicitors Office. In regard to the facsimile dated 3/09/01 there is no evidence to indicate that this was a communication that was to be given to the Crown Solicitor’s Office for the purpose of legal advice. I also note that it predates those documents to which it was attached and which are privileged.
42 In regard to the emails dated 20 & 21/06/02, while they were written by Jennifer Anderson, their contents in my opinion are such that they came into existence not for the dominant purpose of legal advice, but for the dominant purpose of setting out factual and administrative matters relating to the Crown Solicitor’s other role of co-ordinating the sale of the Flemington Markets.
43 In respect of the remaining documents this is correspondence between the Crown Solicitor’s Office and the solicitors for Sydney Markets Limited, which in the normal course of events would not attract privilege. Furthermore, the material before the Tribunal does not establish that these letters were forwarded to the Department by the Crown Solicitor’s Office for the purpose of obtaining instructions on the giving of legal advice.
44 In my opinion the following documents in the SM Taskforce 2002 314 file are not exempt on the grounds that they are privileged:
- Document No 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, 16, 18, 21, 22 (including the Deed which appears from the material to evidence a transaction), and 38
45 On the material before the Tribunal, I am not satisfied that these documents came into existence for the dominant purpose of obtaining or giving legal advice. Again, on the material before the Tribunal, many of these documents set out factual and administrative matters relating to the Crown Solicitor’s other role of co-ordinating and facilitating the sale of the Flemington Markets on behalf of the Crown.
Cabinet Documents
46 The Director General has claimed that the following documents are exempt under cl. 1 of Schedule 1 of the FOI Act:
- File SPD/03648 Part 36: Document No 5, 6, 14, 19 and 21
File SPD/03648 Part 35: Document No 1
SMA Taskforce 2002 314 file: Document No 7, 22 and 24
47 I am satisfied that each of the abovementioned documents or part thereof are exempt under cl. 1 of Schedule 1 of the FOI Act in that a disclosure of these documents would disclose decisions or deliberations of Cabinet or a Committee of Cabinet, in this case the Budget Committee. The only exception is document 22 in SMA Taskforce 2002 314 file, which attached a Deed to it. In my opinion, on the material before the Tribunal that deed is not exempt. Nor for the reasons set out below is it exempt on any other grounds.
Executive Council Documents
48 The Director General has claimed that Document No.22 and No.26 in the SMA Taskforce 2002 314 file are exempt under cl.2 of Schedule 2 of the FOI Act.
49 Document No.22, which consists of 4 documents, one of which is an Executive Council Minute and the other being minutes of a Budget Committee Meeting, these documents, in my opinion, clearly fall within the terms of cl.1 and 2 of Schedule 1 of the FOI Act and are exempt. However, in my opinion, the remaining documents, the undated cover letter and the Deed of Release, do not. Neither of these documents disclose a decision or deliberations of the Executive Council or the Budget Committee of Cabinet.
50 Document No 26 consists of 3 documents. I have already found that all three documents are privileged, however, I also find that the unsigned Executive Council Minute is also exempt under cl. 2 of Schedule 1 of the FOI Act.
Internal Working Documents
51 The Director-General has claimed that the following documents are exempt under cl.9 of Schedule 1 of the FOI Act (internal working documents):
- File SPD/03648 Part 36:
Document 14, 17, 18, 19, 22, 23, 24, 25, 26 and 27
File SPD/03648 Part 35:
Document 1
SMA Taskforce 2002 314 file:
Document 24, 31, 40
52 As I have already found Document No 14, 17, 19 and 25 (File SPD/03648 Part 36), Document No 1 (File SPD/03648 Part 35) and Document No 24, and 40 (SMA Taskforce 2002 314 file) to be exempt on other grounds I have not considered these further for the purpose of this ground of exemption.
53 This leaves Document No 18, 22, 23, 24, 26 and 27 in File SPD/03648 Part 36 and Document 22 (the Deed only) and 31 in SMA Taskforce 2002 314 file (“the remaining documents”). I have also considered Document No 25 in File SPD/03648 Part 36 as this document contains material in addition to privileged material.
54 For a document to be exempt under cl.9 of Schedule 1 of the FOI Act, the Tribunal must first be satisfied that the document contains matter the disclosure of which would disclose opinions, etc, or consultations in the course of, or for the purpose of, the decision making functions of Government, a Minster or an agency. If it is so satisfied, then it must consider the second issue of whether, on balance, it would be contrary to the public interest to disclose the document.
55 I am satisfied that the remaining documents contain information that falls within cl.9(1)(a) of Schedule 1 of the FOI Act, which means that I must determine whether it is not in the public interest to disclose these documents.
56 The term “public interest” is not defined in the FOI Act. However, s.59A provides that for the purpose of determining whether the disclosure of a document would be contrary to the “public interest” it is irrelevant that the disclosure may cause embarrassment to the Government or a loss of confidence in the Government, or cause the applicant to misinterpret or misunderstand the information in the document because of an omission or any other reason. I should point out that it has not been contended that disclosure would cause embarrassment or misinterpretation or be misunderstood.
57 As pointed out by the Deputy President at [47] in Bennett v The Vice Chancellor, University of New England [2002] NSWADT 8, a comprehensive examination of the meaning of “public interest” in relation to internal working documents under freedom of information legislation was undertaken by the Queensland Information Commissioner in Re Ecclestone and Department of Family Service and Aboriginal and Islander Affairs (1993) 1 QAR 60 at [48]. The Deputy President cited with approval the following opinion expressed by the Queensland Commissioner in Re Eccleston at [75]:
- “Unless the exemption provisions, and s.41 in particular, (the equivalent of cl 9 of NSW FOI Act) are applied in a manner which accords appropriate weight to the public interest objects sought to be achieved by the FOI Act, the traditions of government secrecy are likely to continue unchanged” [words in brackets added].
58 In Bennett, the Deputy President pointed out that the “public interest” in cl. 9(1)(b) involves a balancing of the public interest in openness of Government and the public interest in requiring the decision making of Government to remain secret. It has often been stated that underlying this exemption is the need to preserve the secrecy of deliberations and discussions between government officers and ministers, government officers and external advisers and other parties so as to “protect the integrity and viability of the decision making process” (see Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112 at 123). However, it is circumscribed by the underlying objectives of the FOI Act of “openness, accountability and responsibility” (see A Cossins Annotated Freedom of Information Act New South Wales at [109.8.1]).
59 In Tunchon v Commissioner of Police (NSW) [2000] NSWADT 73 at [16]-[19], Judicial Member Smith said:
- “16 In other words, I consider that the exemption requires me to identify the circumstances surrounding the particular decision-making, discover the role which has been or is to be played by the document in that decision-making, and consider the extent to which retaining secrecy for the document is at present necessarily for “the proper administration of the Government” in that particular decision-making process (c.f. s 5(2)(b)).
17 This inevitably requires a “value judgment” as to the “public interest” on what level of openness should accompany or follow the particular decision-making process. Such judgments can be difficult to form and rationally to explain …
The general tendency of the FOI Act to promote openness is given effect by recognising that disclosure will follow unless a positive satisfaction is reached that secrecy of the document is in the public interest, and that the agency has the onus to lead evidence persuading me to this conclusion (see s 61). I also accept the submission of the respondent that it is appropriate to make a decision balancing the public interest “with a general attitude favourable to the provision of the access claimed” and without being unduly “influenced by the conventions of secrecy and anonymity which permeated public administration in this country before the enactment of this Act” (citing s 5(3)(a) of the FOI Act and Kirby P in Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 at 627). However, I consider that these propositions should not in the context of cl 9(1)(b) be applied as if they established a presumption that “internal working documents” should generally be disclosed.
19 Recognising that the exemption requires me to focus on the decision-making context of the particular document without any presumption as to secrecy or openness should assist me to avoid giving undue emphasis to the general propositions which have in the past been proposed as aids to FOI decision-making on “internal working documents” …”
60 The remaining documents all relate to the negotiating stages of the sale of Flemington Markets. Documents 18, 22 and 23 consist of correspondence between Sydney Markets Limited and Mr Bowen, who was acting on behalf of the Government. Document No 22, 24, 25, 26 in File SPD/03648 Part 36 and 31 in the other file are copies of emails between senior officers of government agencies and Document No 27 in File SPD/03648 is a facsimile between senior officers of government agencies and has ten pages attached to it. Document 22 (Deed only) in the SMA Taskforce file is a copy of an unsigned Deed.
61 As stated above, Mr Carroll has said that it was in the public interest that the deliberations and consultations that are contained in these documents, which were undertaken at a senior officer level, should be allowed to occur in an uninhibited fashion so that the Government can achieve the best outcome for the public. I agree with this statement in the context where deliberations and consultations are ongoing (see Tunchon at [26] and Director-General Department of Community Services v Latham [2000] NSWADTAP 21 at [36]). However, in this case the transaction to which those deliberations and consultations related was completed more than two years ago. In such circumstances there is a strong argument that the public interest lies in the disclosure of the documents (see Latham at [34]).
62 Ms Allars, in her written submissions, stated that the deliberations in respect of the sale were commercially sensitive. I accept that prior to the completion of the sale the information contained in the remaining documents was commercially sensitive. However, now that the sale has been finalised for some time it is difficult to see how that sensitivity can now outweigh the public interest of accountability. There is also no evidence to indicate that a disclosure of the documents would destroy the integrity and viability of the decision making process of Government in major commercial transactions or in any other way.
63 Document 31 in the SMA Taskforce 2002 314 file, contains information that does not appear to be relevant to this application (i.e. from paragraph 2 on). No claim for exemption has been made in respect of those paragraphs, but in my opinion the Director-General should be given an opportunity to reconsider his decision in this regard. If on reconsideration, the Director-General determines that these paragraphs are exempt he should give consideration to giving Mr Cianfrano a copy of the document with these paragraphs deleted.
64 In respect of the Premier’s guidelines as set out in the Memorandum concerning “Disclosure of Government Contracts with the Private Sector”, in my opinion, this Memorandum is of no relevance to this application. It is clearly a policy of voluntary disclosure of the details of all contracts entered into by Government or a government agency with the private sector. However, this policy cannot over-ride the provisions of the FOI Act.
65 Accordingly, from the material before the Tribunal, the Director-General has failed to satisfy me that the following documents are exempt under cl. 9 of Schedule 1 of the FOI Act:
- File SPD/03648 Part 36:
Document 18, 22, 23, 24, 25 (other than that part of the document that contains privileged material), 26 and 27
SMA Taskforce 2002 314 file:
Document 22 (Deed only) and 31 (the first two paragraphs only)
66 The Director-General has also claimed exemption for the following documents on the grounds set out in cl.7(1)(c) of the FOI Act (business affairs exemption):
- File SPD/03648 Part 36:
Document 4, 14, 17, 22, 23, 24, 25, 26 and 27
File SMA Taskforce 2002 314:
Document 6, 7, 22, 30, 31, 33, 34, 35 and 40
67 Sydney Markets Limited support the Director-General in his determination but also argue that the following documents, which the Director-General had claimed to be exempt in his internal review determination but was not pressed at the hearing, also come within this exemption:
- File SPD/03648 Part 36:
Document 3, 18 and 28
File SMA Taskforce 2002 314:
Document 20
68 With the exception of the privileged material in Document No 25 in File SPD/03648 Part 36, I have not considered those documents that I have found to be exempt on other grounds. Accordingly, I have considered the following documents for the purpose of this exemption:
- File SPD/03648 Part 36:
Document 3, 18, 22, 23, 24, 25, 26, 27 and 28
File SMA Taskforce 2002 314:
Document 20, 22 (the Deed only), 30 (draft contract for sale and draft special conditions) and 31 (the first two paragraphs only)
69 In order to establish that a document is exempt under cl.7(1)(c) of Schedule 1 of the FOI Act, the Director-General and Sydney Markets Limited must satisfy the Tribunal of the following matters in respect of each document for which this exemption is claimed:
- (a) the document contains information concerning the business, professional, commercial or financial affairs of an agency or Sydney Markets Limited; and
(b) that disclosure of this information could reasonably be expected to have:
- -an unreasonable adverse effect on those affairs; or
- -prejudice the future supply of such information to Government or an agency.
70 Mr Davis, on behalf of Sydney Markets Limited, submitted that the Tribunal should exercise its discretion in favour of the Government and Sydney Markets Limited in accordance with accepted commercial principles as the documents related to the confidential commercial negotiations, which involved the lawyers of the parties, and where the applicant was engaging in a fishing expedition. While I can understand the concerns of Sydney Markets Limited about the disclosure of confidential commercial negotiations between a government agency and a private sector body, Mr Davis’ submission demonstrates a complete misunderstanding of the provisions of the FOI Act and the role of the Tribunal when reviewing a determination of an agency under that Act.
71 In respect to the first aspect of the exemption (i.e. unreasonable adverse affect), there is no evidence before the Tribunal as to what affect, if any, the disclosure of these documents, now that the sale has been completed, would have on the business or financial affairs of Sydney Market Limited or a government agency. The fact that they were exchanged on a confidential basis is not, at this time, on its own a sufficient basis to find that their disclosure would have the requisite adverse affect. On the contrary, the public interest of disclosure as set out in the objectives of the FOI Act would seem to prevail.
72 In respect of the second aspect of the exemption (i.e. future supply of such information), Sydney Markets Limited and the Director-General have not put on any evidence about the prejudice that would be caused to the future supply of such information to government agencies if the documents are released. Accordingly, if there is any such prejudice this must be inferred from the contents of the documents for which an exemption has been claimed. In my opinion, in this case no such inference can be drawn.
73 Accordingly, I find that the Director-General and Sydney Markets Limited have failed to establish that the abovementioned remaining documents are exempt pursuant to cl.7 of Schedule 1 of the FOI Act.
s. 25(4) FOI Act
74 I have considered whether it was practicable to delete exempt material from documents that I have found to be exempt so that Mr Cianfrano can be provided with a copy of the document with this material deleted. In some cases (executive council and cabinet documents) the whole of the document is exempt and s. 25(4) of the FOI Act would have no application. With one exception, I am satisfied that it would not be practicable to delete the exempt material and provide Mr Cianfrano with a copy that has this material deleted. The exception is Document no 25 in File SPD/03648 Part 36. In my opinion it would be practicable to provide Mr Cianfrano with a copy of this with the privileged material deleted (i.e. in paragraph 3 and the sub-paragraphs thereto),
Conclusions
75 For the reasons set out in paragraphs 39, 49, 51, and 52 above, I find that the Director-General’s determination in respect of the following documents is the correct and preferred decision:
- File SPD/03648, Part 36:
Document No. 1, 4, 5, 6, 8, 9, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21 and 25
File SPD/03648 Part 35: Document No 1
File SMA Taskforce 2002 314:
Document No 7 (except the Deed), 11 (except the Deed and the emails dated 20/06/02 and 21/06/02), 17 (except letter, dated 12/06/02, from Anderson to Sakaris and letter, dated 7/06/02, from Friedeberg to Anderson), 19 (except letter, dated 5/06/02, from Friedberg to Anderson), 22 (except the Deed), 24, 25 (except Deed), 26, 27, 28, 30 (except Special Conditions), 33 (except Special Conditions), 34, 35, 37, 39, 40 and 41
76 For the reasons set out in paragraphs 41 to 45, 60 to 62 and 69 to 72 above, I find that the decision of the Director-General in respect of the following documents is not the correct and preferred decision as the Director-General has failed to satisfy the Tribunal that they are exempt on the grounds claimed:
- File SPD/03648 Part 36
Document No 3, 18, 22, 23, 24, 25, 26, 27 and 28
File SMA Taskforce 2002 314:
Document No 4, 5, 6, 8, 9, 10, 11 (emails dated 20 & 21/06/02 only), 12, 13, 14, 15, 16, 17 (letter dated 12/06/02 from Anderson to Sakaris and letter dated 7/06/02, from Friedeberg to Anderson, 18, 19 letter dated 5/06/02 from Friedberg to Anderson only), 22 (Deed only), 20, 21, 31 (paragraphs one and two only) and 38
77 For the reasons set out in paragraph 40, and 63 above, I find that the decision of the Director-General in respect of the following documents is not the correct and preferred decision and should be set aside, however the decision in respect of these documents should be remitted for re-consideration to the Director-General pursuant to s. 63(3) of the Administrative Decisions Tribunal Act 1997:
- SM Taskforce 2002 314 file
Document 7 (the Deed only), 11 (the Deed only), 22 (the Deed only), 25 (the Deed only), 30 (the special conditions only), 31 (paragraphs following the second paragraph only) and 33 (the special conditions only)
78 For the reasons set out in paragraph 74 above, I find that it would be practical for Mr Cianfrano to be provided with a copy of Document 25 in File SPD/03648 Part 36 with the exempt privileged material being deleted.
Orders
The Tribunal orders:
- (1) The decision of the Director-General in respect of the following documents is affirmed:
File SPD/03648, Part 36:
Document No. 1, 4, 5, 6, 8, 9, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21 and 25
File SPD/03648 Part 35: Document No 1
File SMA Taskforce 2002 314:
Document No 7 (except the Deed), 11 (except the Deed and the emails dated 20/06/02 and 21/06/02), 17 (except letter, dated 12/06/02, from Anderson to Sakaris and letter, dated 7/06/02, from Friedeberg to Anderson), 19 (except letter, dated 5/06/02, from Friedberg to Anderson), 22 (except the Deed), 24, 25 (except Deed), 26, 27, 28, 30 (except Special Conditions), 33 (except Special Conditions), 34, 35, 37, 39, 40 and 41
(2) The decision of the Director-General in respect of the following documents is set aside and in substitution thereof a decision that Mr Cianfrano be given access to these documents:
File SPD/03648, Part 36:
Document No. 3, 18, 22, 23, 24, 25, 26, 27, and 28
File SMA Taskforce 2002 314:
Document No 4, 5, 6, 8, 9, 10, 11 (emails dated 20 & 21/06/02 only), 12, 13, 14, 15, 16, 17 (letter dated 12/06/02 from Anderson to Sakaris and letter dated 7/06/02, from Friedeberg to Anderson only), 18, 19 (letter dated 5/06/02 from Friedberg to Anderson only), 20, 21, 22 (Deed only), 31(paragraphs one and two only) and 38
(3) The decision of the Director-General in respect of the following documents be set aside and remitted for reconsideration in accordance with this decision pursuant to s. 63(3)(d) of the Administrative Decisions Tribunal Act 1997:
SM Taskforce 2002 314 file
Document 7 (the Deed only), 11 (the Deed only), 25 (the Deed only), 30 (the special conditions only), 31 (the paragraphs following paragraph two only) and 33 (the special conditions only).
(4) Mr Cianfrano be provided with a copy of Document No 25 in File SPD/03648, Part 36 with the exempt material deleted.
Decision revised 17/12/04: To correct reference to document (Orders 1-2, para. 39, para 41, para 75 and para 76)
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