Cianfrano v Environmental Protections Authority of New South Wales

[2004] NSWADT 220

CITATION:	Cianfrano v Environmental Protections Authority of New South Wales [2004] NSWADT 220
DIVISION:	General Division
PARTIES:	APPLICANT Robert Cianfrano RESPONDENT Environmental Protection Authority of New South Wales
FILE NUMBER:	033199; 033200; 033314
HEARING DATES:	09/06/2004, 07/07/2004, 11/08/2004
SUBMISSIONS CLOSED:	08/11/2004
DATE OF DECISION:	10/05/2004
BEFORE:	Robinson MA - Judicial Member
APPLICATION:	access to documents - adequacy of search - access to documents - legal professional privilege - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - legal professional privilege
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Freedom of Information Act 1989 State Records Act 1998
CASES CITED:	Cianfrano v Environment Protection Authority [2003] NSWADT 259 Trade Practices Commission v Sterling (1979) 36 FLR 244 Federal Commissioner of Taxation v Coombes (1999) 92 FCR 240
REPRESENTATION:	APPLICANT In person RESPONDENT C McElwain, solicitor
ORDERS:	(a) The reviewable decisions are affirmed in each matter; (b) The confidential exhibits are to be made available to the respondent for collection forthwith

1 The applicant has made numerous applications to the respondent agency pursuant to section 17 of the Freedom of Information Act 1989 (NSW) (" FOI Act "). Section 16 of the FOI Act provides that person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act. The respondent provided limited access to documents held by it and refused access to some documents or parts of documents on the ground of legal professional privilege in clause 10 of Schedule 1 of the FOI Act.

2 The FOI applications were largely the same as the FOI application addressed to the same respondent in an earlier matter heard and determined by the Tribunal in Cianfrano v Environment Protection Authority [2003] NSWADT 259. The Tribunal determined in that case the documents caught were privileged and did not need to be produced to the applicant.

3 In summary, the applicant sought documents relating to his property known as "Fernbank Orchards" at Orange in New South Wales. It was made in the context of an investigation of the applicant and prosecution of the applicant by the respondent in the Land and Environment Court of New South Wales where the applicant was charged with an offence of causing pollution of waters on or about 7 January 2002. Exhibit One contains the various FOI applications and some schedules of documents. The affidavit of Jonathon Charles, Manager, Corporate Governance, of the respondent, affirmed 17 March 2004 contained the detailed schedules of the respondent in relation to each FOI application and identified which documents were released and which were withheld and the reason.

4 A very large bundle of documents was tendered at the hearing containing the exempt documents as identified by the respondent (Confidential Exhibit Two).

5 The privilege claimed in each matter is the EPA’s privilege.

6 A hearing was conducted at the Tribunal over three days. The applicant, a farmer, represented himself. The respondent was represented by an in-house solicitor. There were a number of planning meetings held at the Tribunal before the matter was listed for hearing. Ultimately, it was listed for hearing as a sufficiency of search matter. It was alleged that the respondent had not searched well enough for documents caught by the applicant’s FOI applications. At the hearing, it became apparent that the applicant also challenged the FOI determinations themselves and the respondent was put to proof, as it were on privilege.

7 The applicant filed a lengthy affidavit sworn 6 January 2004 setting out the circumstances of how he came to be in possession of a number of documents which he attached to his affidavit. In short, these documents aroused a reasonable suspicion in the applicant that there were likely to be more documents held by the respondent that had not yet been located.

8 Overall, over the course of the hearing, once the applicant heard the substantial evidence put on by the respondent – and tested it by cross-examination, the concerns of the applicant relating to sufficiency of search largely evaporated. Detailed evidence was led by the respondent of the thorough and repeated searches that were made in response to his FOI applications. Although in submissions, the applicant maintained that the Regional Manager of the Bathurst Office of the respondent did not pass on documents to those other offices of the respondent who were searching for them in answer to the applicant's FOI applications, I am not satisfied that this was the case. The overwhelming evidence of the respondent's officers was that the respondent searched for everything held anywhere within the respondent’s offices that was connected with the applicant. In other words, the respondent conducted a wider search than was necessary in answer to the FOI Act applications.

9 As to the sufficiency of search aspect of the case, the respondent put on affidavits from five officers Jonathon Charles; Darryl Clift, Head of the respondent’s Regional Operations Unit, Central West in the Environment Protection and Regulation Division; Mark Clyne, regional specialist investigator of the respondent’s Bathurst Office; Jason Scarborough, regional operations officer at the Bathurst office of the respondent; and, Jacqueline Marie Moore, Senior Legal Officer within the respondent. Each of these officers were made available for very lengthy cross examination over most of the three days hearing. I accept their evidence. Indeed, at the end of the day the applicant appeared to accept much of what the respondent’s witnesses had to say. The officers gave very detailed evidence about the numerous searches that were undertaken within the respondent's offices each time that the applicant lodged a new FOI application or internal review request. The detailed process is summarised in the written submissions of the respondent handed up to the Tribunal and dated 11 August 2004. I am satisfied that the searching process was sound and thorough and that no further searches are required as I am confident that there is no realistic prospect of finding anything further relating to the applicant by yet another search.

10 Evidence of some concern to the Tribunal was given by some of the respondent's officers about the practice of routinely deleting e-mails from their computer. For example, Jason Scarborough gave oral evidence that his office computer has a 750,000KB storage limit for email including attachments. He must regularly delete emails in order for him to keep under the limit. Some of the e-mails that he deleted related to the applicant. His evidence was they did not seem important to him at the time. However, in cross-examination, he accepted that they later on became documents that would be of some interest to the applicant. It would be preferable for the respondent to have a policy on this issue rather than relying on the judgment call of its officers from time to time, in keeping with the State Records Act 1998. Having said that, I accept the explanations given by the various respondent officers for them making the deletions they did of emails and attachments regarding the applicant in the present case. I also accept the respondent’s submission that the documents that were deleted were generated or received by the respondent in 2001, prior to any contemplation of legal proceedings against the applicant by the respondent.

Legal Professional Privilege

11 The respondent submits that the documents listed in Annexures D, E and F to the affidavit of Jonathon Charles affirmed 17 March 2004 are exempt on ground of privilege. It is said that the claim arose because of the criminal proceedings that were pending against the applicant by the respondent in the Land and Environment Court of New South Wales. It is said that the documents were created in contemplation of or for the conduct of the prosecution of the said criminal proceedings. Alternatively, it is said that the subject documents were created for the dominant purpose of seeking or giving legal advice in relation to those legal proceeding. My own reasoning in Cianfrano v Environment Protection Authority [2003] NSWADT 259 at [17] & [18] is relied upon because, as the respondent states in its written submissions:

“In essence, the document arise in relation to the same proceedings, involve the same lawyers and, as set out in the affidavit of Jacqueline Moore of 30 June 2004 at paragraph 11, are of the same categories as those the subject of the earlier Tribunal decision.”
12 The respondent also relied on a written chronology of events setting out the detail of the 10 or so FOI applications and Tribunal hearings in relation to them.

13 At the hearing, I briefly inspected some of the exempt documents. I found some documents that appeared to be “transactional” documents, as it were, and possibly not privileged. Such a document might be, for example, a document recording something done in open court with no commentary or embellishment. Such a document would plainly not be the subject of privilege – a matter which the respondent’s legal representative properly conceded at the hearing. Accordingly, I have inspected each page of the three bundles of the subject documents (292 pages). The documents broadly comprise the legal officer for the respondent’s prosecution files concerning the applicant containing:

· Draft pleadings & other court documents;

· Draft affidavits;

· Filed court documents with the respondent’s legal representative’s handwriting and commentary on it; or such documents not relied upon by the respondent;

· Emails, letters & draft letters and memoranda sent internally and to witnesses

· File notes of conversations with witnesses, the applicant and his legal advisers and of conversations internally within the respondent and notes of the various hearings; and

· Memoranda of fees from counsel briefed to appear in the prosecution of the applicant.

14 In these files there are also some documents concerning or touching on the applicant’s FOI applications and the various Tribunal hearings and concerning the subpoena he issued in the Land & Environment Court proceedings.

15 Not every document generated by a lawyer in the context of litigation is the subject of legal professional privilege. See the judgment of Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 at pages 245-6 concerning the various circumstances in which legal professional privilege can arise (see also: Federal Commissioner of Taxation v Coombes (1999) 92 FCR 240 (Sundberg, Merkel and Kenny JJ)).

16 As to the document I mentioned recording matters in open court, I have now had the opportunity to examine it more closely (for example page 51 in Exhibit 2, file 033314) and I do consider it to be privileged. It contains the author’s, a solicitor, own version or account of the proceedings – one which might differ from another account. It also mentions maters that constitute an embellishment on the factual events she observed. Accordingly it is privileged and I do not propose to release it.

17 One other document that was said by the applicant to be in the exempt material was Exhibit L, a fee note dated 10 June 2003 by the respondent’s counsel concerning the prosecution of the applicant. The applicant obtained this document in one of his many FOI applications. While that document is “transactional” in a fashion, in that it does not record any information that is privileged, it remains confidential between the respondent and the barrister. Ordinarily, an agency would invoke the reverse FOI procedure in section 32 of the FOI Act (information relating to business affairs) before releasing that kind of document. As the applicant already has the document, there is no utility in me ruling on it.

18 I consider the remaining documents in the said schedules are privileged on their face. I accept the affidavit evidence from Ms Moore which was not successfully challenged by the applicant in cross examination. I adopt the reasoning on the privilege question in Cianfrano v Environment Protection Authority [2003] NSWADT 259 to the present case.

The Section 25(1) Question

19 As to whether the Tribunal should release the exempt documents in any event as a matter of the Tribunal's discretion in section 25(1) of the Act, for the reasons set out in Cianfrano v Environment Protection Authority [2003] NSWADT 259 at [19]-[21] I would not release any of the privileged documents to the applicant in the present case, even if I were able.

20 The Tribunal determines:

(a) The reviewable decisions are affirmed in each matter.

(b) The confidential exhibits are to be made available to the respondent for collection forthwith.