Dranichnikov and Department of Immigration and Multicultural Affairs

[2002] AATA 830

DECISION AND REASONS FOR DECISION [2002] AATA 830

ADMINISTRATIVE APPEALS TRIBUNAL      )

) No Q2001/116, Q2001/117, Q2001/244

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      SERGUEI DRANICHNIKOV        
  First Applicant
  OLGA DRANICHNIKOV

Second Applicant

And    DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS    
  Respondent

DECISION

Tribunal       Mr K L Beddoe, Senior Member  

Date20 September 2002 

PlaceBrisbane

Decision      In relation to Q2001/116: The Tribunal varies the decision under review so as to grant access to the documents set out in paragraph 22 of the Tribunal's Reasons for Decision and so as to take effect 28 days after the date of this decision. In relation to Q2001/117: The Tribunal affirms the decision under review. In relation to Q2001/244 The Tribunal decides that the application for review is not a valid application.

(Sgd) K L Beddoe
  Senior Member

CORRIGENDA [2002] AATA 830

Tribunal       Mr K L Beddoe, Senior Member  

Date26 September 2002 

PlaceBrisbane

I DIRECT that paragraph 28 of the Tribunal's reasons for decision be amended to read as follows:

28.In application Q2001/117 which is really a reverse FOI application, made after the grant of access to documents, I am satisfied that the Mr Dranichnikov's personal information was released to his wife when it was protected by section 41 of the Act. I am also satisfied that there is no power in this Tribunal to alter the situation. Section 14 allows the decision-maker to make such a decision. Whether there is a consequential breach of the Privacy Act is not a matter I can determine

(Sgd) K L Beddoe
   Senior Member

CATCHWORDS
FREEDOM OF INFORMATION – exemptions – whether valid exemptions are available to the respondent for documents sought by the applicants – legal professional privilege exemption – whether common law test or statutory test applies

Freedom of Information Act 1982 ss 14, 41, 42, 54

Attorney-General (NT) v Maurice (1986) 161 CLR 475
Trade Practices Commission v Ampol Petroleum (1994) 127 ALR 533
Trade Practices Commission v Sterling (1979) 36 FLR 244
Esso Australian Resources Ltd v FCT (1999) 201 CLR 49
Grant v Downs (1976) 135 CLR 674

REASONS FOR DECISION

20 September 2002          Mr K L Beddoe, Senior Member              

1. On 19 December 2000 the first applicant applied under the Freedom of Information Act 1982 ("the Act") for access to:

   "all documents contenting in my files…
   all documents concerning my wife Olga Dranichnikov …"

Various departmental file numbers were included in the application.

1. Having received no decision the first applicant applied for review in this Tribunal on 7 February 2001 (Q2001/116).

2. On 15 September 1999, the second applicant applied under the Act for access to documents regarding herself. Details of the documents to which access was sought are set out in the application. A further request in the second applicant's name was made on 26 September 2000. By letter dated 11 October 2000 the first request was answered by an authorised officer. The decision was to grant access to all the relevant documents identified on three departmental files. The second applicant sought internal review of this decision on 13 November 2000.

3. On internal review further documents were identified and released to the second applicant but exemption was claimed in respect of the following documents:

   (a)folios 32 to 35 and 70 of file N97/3462 (Serguei Dranichnikov) subject to deletions claimed under section 41(1) of the Act:

   (b)folios 197 and 198 of CLF 2000/42570 (Olga Dranichnikov); and

   (c)folio 33 of CLF 2000/42574 (Olga Dranichnikov).

4. Subject to claims for exemption, the respondent purported to grant access to all documents on the respective files while acknowledging that there were missing folios on some of those files.  The respondent said that the missing folios were not recorded on the file which I understand to mean that the numbers had been missed in the construction of the files.

5. Claims for exemption were based on section 41 of the Freedom of Information Act 1982 ("the Act").  That section provides, so far as is relevant, as follows:

   "41(1)  A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
   (2)  Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person."

1. The first applicant applied for review of that decision by this Tribunal (Q2001/117) on the basis that there had been unreasonable disclosure of the first applicant's personal information to the second applicant.

2. On 19 December 2000, the second applicant made a further application under the Act for access to all information on files CLF 2000/42459, CLF 2000/42570 and CLF 2000/43574. That was, in essence a repeat of the earlier application but was treated by the respondent as a new application for access under the Act.

3. By letter dated 1 March 2001, the respondent advised both applicants (only the second applicant had applied for access) that access to documents would be granted except for deletions of personal information in folios 61 and 75 of CLF 2000/42574. Without requesting internal review of this decision in accordance with section 54 of the Act, the second applicant applied to this Tribunal for review of the decision on 16 March 2001 (Q2001/244). Because of the operation of section 54(2) of the Act, and because section 54(3) of the Act had no operative effect, the application for review in this Tribunal is an invalid request for review and I so find. Application Q2001/244 is an invalid application, the Tribunal having no jurisdiction to review the decision sought to be reviewed.

4. At the hearing the first applicant represented both applicants and Mr Belcher appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "AAT Act") in application number Q2001/116 were before the Tribunal (Exhibit 1). Further documents were tendered and marked as exhibits. Exhibit 4 is a copy of the documents, relevant to the claim for exemption, which is subject to an order under sub-section 35(2) of the AAT Act.

5. Oral evidence was given by three witnesses called by the applicants and two witnesses called for the respondent.

6. The applicants sought to establish that the respondent held further relevant documents which had not been disclosed.  The witnesses called by the applicants to establish the existence of further documents did not give any evidence that would justify the finding contended for the applicants.  Those witnesses had no knowledge of further documents which had been sent to the respondent.

7. I am satisfied that the respondent has disclosed all documents relevant to the application for access albeit that claims for exemption are made in respect of some documents.

8. In particular I am satisfied that I should accept fully the evidence of the three witnesses called by the applicants.  Contrary to the first applicant's assertions the evidence of those witnesses did not establish additional documents as claimed by the first applicant.

9. In particular Mr Thallon said that there were special procedures for enrolling non-resident students at Queensland schools.  He said that he contacted the Queensland Department of Education in relation to enrolment of the applicants' daughter and he did not contact the respondent department.  He did not recall receiving any letter in the matter and recollected that he had dealt with the matter over the telephone with the Education Department officer.

10. In so far as there are conflicts of evidence between the affidavits of the applicants and the witnesses called to give oral evidence for the applicants, I prefer the evidence of those witnesses who, I am satisfied, were dispassionate in giving their evidence.

11. Exhibit 3 is an affidavit of documents sworn by Mr Chand, an officer of the respondent department.  He describes in outline, the departmental system for recording documents and files known as the "TRIM" system.  He said that any files and documents relating to the applicants would be recorded on this system.  In his oral evidence he said that he had caused an administrative assistant to conduct a search of the TRIM system for documents relating to the applicants.  He said he was not aware of any other system in the department relevant to the applicants and he did not search any other system.  Any information given to the respondent relating to the applicants would be on file and recorded on the TRIM system.

12. Mr Chand also identified seven ministerial intervention files relating to the applicants.  Full access has been given to these documents except for one deletion of personal information relating to another person.

13. I am satisfied that the respondent conducted a comprehensive search of its records system so that I can be satisfied that it is more likely than not that all relevant documents have been identified.

14. In so far as the applicants assert that a change of address form has not been discovered, I am satisfied that the form is lost and cannot now be located.  In coming to that conclusion I have taken into account that the Commonwealth Ombudsman came to that conclusion also.  I am also satisfied that the folios missing from files are not evidence of documents removed from the files, there being nothing else to suggest that is the case, but are more likely errors in folioing the files.  I accept that the applicants are entitled to be suspicious, in such circumstances that documents have been removed but there is nothing present in this case to support that suspicion.

15. Exhibit 4 is subject to an order under section 35(2) of AAT Act. The applicants have not had access to this exhibit. There is a considerable volume of documents in the exhibit but it is clear to me that all of those documents are of the same general character. They are confidential files maintained by the Legal Services Branch of the respondent. The files are in the names of one or other of the applicants. Each file is marked "In Confidence" and the contents are papers relating to various Court proceedings and proceedings in this Tribunal and the Refugee Review Tribunal concerning the applicants. The documents are generally documents passing between the respondent's legal branch and the Australian Government Solicitor, or between individual solicitors and the respondent, or notes and memoranda made in the course of litigation etc.  So far as I can tell all the documents are in connection with the conduct of the cases and with some exceptions are for the purpose of those proceedings or obtaining legal advice and the giving of legal advice.

16. There are however some documents that would not be subject to the privilege.  These are:

    (a)a copy of a letter from the High Court Registry to the Australian Government Solicitor dated 19 September 2000 (CCF 2000/2912);

    (b)file minute by Brett Smith dated 26 July 2000 (CCF 2000/2648); and

    (c)emails dated 3 October 2000 and 6 October 2000 on single page at folio 28 of CCF 2000/2648.

17. Section 42 of the Act has the effect that a document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege. It now seems to be accepted that section 42 is concerned with legal professional privilege as determined by the common law and not as determined under the Evidence Act 1995 (part 3.10).

18. In Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 490 (69 ALR 31 at 41), Deane J stated that the essential object of the legal professional privilege operates so that, subject to defined qualifications and exceptions:

    "a person is entitled to preserve the confidentiality of confidential statements and other materials which have been made or brought into existence for the sole purpose of his or her seeking or being furnished with legal advice by a practising lawyer or for the sole purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings: see, generally, Baker v Campbell (1983) 153 CLR 52; 49 ALR 385."

1. In Trade Practices Commission v Ampol Petroleum (1994) 127 ALR 533 the Federal Court (Davies, Burchett and O'Loughlin JJ) adopted earlier dicta of Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246 as follows:

   "Lockhart J expressed the following relevant categories of legal professional privilege:

   (d)Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf:  (authorities cited)

   (f)Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend  action (authorities cited)."

1. In Esso Australian Resources Ltd v FCT (1999) 201 CLR 49, the High Court set aside the sole purpose test enunciated in Grant v Downs (1976) 135 CLR 674 holding that the correct test to determine a claim for privilege in relation to discovery of documents is the dominant purpose test, which is the common law test. The consequence of the decision is that sole purpose test, as noted in a the dicta of Deane J above is now replaced by the less stringent test of what the dominant purpose for which the documents were brought into existence. I have considered the Legal Service Branch files on this basis.
   Conclusions

2. In application Q2001/116 the decision under review is to be varied so as to grant the applicant access to the documents set out in paragraph 22 above.

3. In application Q2001/117 which is really a reverse FOI application, made after the grant of access to documents, I am satisfied that the Mrs Dranichnikov's personal information was released to her husband when it was protected by section 41 of the Act. I am also satisfied that there is no power in this Tribunal to alter the situation. Section 14 allows the decision-maker to make such a decision. Whether there is a consequential breach of the Privacy Act is not a matter I can determine.

4. Application Q2001/244 is an invalid request for review for the reasons stated above.

   I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member

   Signed:         Sarah Oliver            

   Associate

   Date of Hearing  10 September 2001
   Date of Decision  20 September 2002
   For the Applicants  Mr Dranichnikov
   For the Respondent                 Mr Belcher, Australian Government Solicitor