Drinkwater v Director General, Department of Health

[2002] NSWADT 35

CITATION:	Drinkwater -v- Director General, Department of Health [2002] NSWADT 35
DIVISION:	General Division
PARTIES:	APPLICANT Sally-Marie Drinkwater RESPOPNDENT Director General, Department of Health
FILE NUMBER:	013109
HEARING DATES:	24/10/2001
SUBMISSIONS CLOSED:	10/24/2001
DATE OF DECISION:	03/12/2002
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - legal professional privilege
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Health Administration Act 1982 Public Hospitals Act 1929
CASES CITED:	Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 Charteris v Leichhardt Municipal Council [2001] NSWADTAP 12 Grant v Downs (1976) 135 CLR 674 Walden & Toni v Leichhardt Municipal Council [2001] NSWADT 81 Re the Fallon Group Pty Ltd and Federal Commissioner of Taxation (1995) ATC 2134 Farrow Mortgage Services Ltd v Webb (5 July 1996, CA, unreported)
REPRESENTATION:	APPLICANT In person RESPONDENT A Mullen, solicitor
ORDERS:	1. Decision under review affirmed as it relates to Documents 1, 5, 46 and 48; 2. Application to be relisted for further planning meeting.

1 The applicant, Ms Sally-Marie Drinkwater, General Manager, Barwon Health Service between 1993 and 1995, has applied for review of a determination made by the respondent agency to refuse to grant access under the Freedom of Information Act 1989 (the FOI Act) to some documents.

2 The applicant made two separate access requests. Only the first request remains in issue, but for completeness it is helpful to refer to the history in respect of both requests.

3 First Request: This request made 2 November 1998 was for a report concerning the Barwon Health Service compiled by Mr Harry Eagleton (the Eagleton report) dated 13 May 1995, including numerous attachments and related documents to that report. The report concerned circumstances surrounding the Health Service Board’s decision to suspend her from duty. The terms of reference are set out at para [18]. Some parts of the report were withheld, others released. In relation to the parts withheld, the agency relied on the exemptions in relation to personal affairs (cl 6 of Schedule 1 to the FOI Act), legal professional privilege (cl 10), confidentiality (cl 13(b) and cl 16 (prejudice to the operation of the agency).

4 Second Request: This request made 5 June 1999 was for access to all documents concerning the 1993 selection process for the General Managers of the Barwon and Lachlan Area Health Services; and for any documents relating to the applicant’s redeployment. The agency had initially refused to deal with the second request because of the amount of time it would take and sought an advance deposit in respect of its charges. There was dispute over the level of the charges. This request was not actioned for some time, an impasse resolved ultimately by recommendations from the Ombudsman accepted by the parties.

5 The application for review was filed on 4 May 2001 and related to the agency’s decisions in respect of both requests.

6 In a letter to the Tribunal dated 31 May 2001 the Department provided an administrative history of its handling of the two requests.

7 In the case of the first request, it made its final determination on 19 February 1999. The agency released 31 out of 52 documents, declining to release the remainder partially or wholly. Three further documents were located after this determination was made, and they were supplied to the Ombudsman who was asked by the applicant to investigate the agency’s handling of her request.

8 The Ombudsman by letter dated 20 April 2001 made a formal suggestion to the agency, as permitted by s 52A(1)(a) of the FOI Act, that it exercise the power granted by s 52A to review its determination.

9 At the planning meeting held by the Tribunal on 4 June 2001 the agency sought a month’s grace so that it could act on this suggestion. The agency advised at the planning meeting held on 17 July 2001 that a new determination had been made on 2 July 2001 resulting in a provisional decision to release 23 further documents, 13 partially, 10 in full. The decision was conditional on consulting and considering any submissions from third parties whose privacy may be affected by release of the documents; with consultation to conclude on 11 September 2001. The outcome of that process of consultation and further consideration was communicated to the applicant by letter dated 14 September 2001. The agency determined to release 15 documents, leaving 8 in issue. The subject of this decision is the claim made in respect of 4 of those 8 documents.

10 In the case of the second request, it made its final determination on 22 September 1999. The Ombudsman by letter dated 20 April 2001 suggested that the agency review its determination. The agency made a new determination on 29 May 2001. The agency released 532 out of 537 documents affected by the request. They belonged to the years 1993 to 1999 and covered such matters as appointment communications with the applicant (1993) and various documents from 1995 onwards relating to her removal from employment, applications for reinstatement, action taken in relation to claims for compensation, health assessments, financial and leave payment records. At the planning meeting on 17 July 2001 the agency advised, and the applicant agreed, that she was happy with the outcome of the agency’s deliberations on the second request, and there was no longer any issue between the parties in respect of that request.

11 The documents that remain in issue, using the headings in the list of documents attached to the agency’s letter of 14 September 2001, together with the claim as to exemption, are as follows:

D1 Report of Management Review of Barwon Health Service (the Eagleton Report): Partial Release. As to exempt material, cl 10 (Legal Professional Privilege) relied upon.
D2 Letter from JW Owen to H Eagleton dated 18 May 1995 (Tab 1 to the Report): Partial Release. As to exempt material, cl 6 (Personal Affairs) relied upon.
D5 Letter A McCarroll to OR Butler dated 15 March 1996 (Tab 6 to Report): Partial Release. Legal Professional Privilege claim.
D6 Appendix A: Partial Release. Personal Affairs claim and cl 13 (Confidential Material) claim.
D20 Attachment K to Appendix A. Letter to The Chairman dated 30/10/94: Partial Release. Personal Affairs claim and Confidential Material claim.
D36 Attachment T to Appendix A: Partial Release. Personal Affairs claim.
D46 Attachment AD to Appendix A. Notice to all Board Members: Partial Release. Legal Professional Privilege claim.
D48 Attachment AF to Appendix A. Letter A McCarroll to OR Butler dated 15/3/95: Partial Release. Legal Professional Privilege claim.
12 At the planning meeting held on 18 September 2001 the parties agreed that at the hearing to be held on 24 October 2001 the claims for exemption based on legal professional privilege would be dealt with, as well as questions related to the scope of the original request. The agency provided confidentially to the Tribunal on 19 September 2001 an envelope containing the documents the subject to a claim of legal professional privilege.

Legal Professional Privilege
13 The relevant exemption 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.’
14 The current law in relation to the scope of the doctrine of legal professional privilege has been authoritatively stated by the High Court in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67. It has been explained in detail in a number of recent Tribunal decisions: see for example, Charteris v Leichhardt Municipal Council [2001] NSWADTAP 12.

15 Briefly to recapitulate. In Esso Australia Resources at [35] Gleeson CJ, Gaudron and Gummow JJ said:

‘Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. … The privilege exists to serve the public interest in the full and frank disclosure by clients to their lawyers. ….[A] person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. … The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balance of competing considerations ….’
16 To the list can be added in this context the FOI access applicant.

17 The present law, overruling the High Court’s decision in Grant v Downs (1976) 135 CLR 674, is that advices, reports and the like attract the privilege if the ‘dominant purpose’ of their preparation was to obtain legal advice or assistance. The dissenting opinion of Barwick CJ at 677 in Grant v Downs has now been adopted:

‘[A] document which was produced or brought into existence either with the dominant purpose of its author, or of the person under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.’
18 It is helpful at this point to set out the terms of reference of the Eagleton Inquiry. The Inquiry was constituted on 18 May 1995:
‘To review expeditiously and with findings and recommendations to the Director-General by end of May on the following matters:
1. The standard of the General Manager’s performance in discharging her duties as such and fulfilling her employment obligations.
2. The appropriateness of the Board’s conduct to date in its dealings with the Executive of BHS generally and in particular the General Manager.
3. The reasons that have led to the current impasse between the Board and the General Manager.
4. Based on your findings in relation to 1, 2 and 3 your recommendations in relation to the future of the Board and the General Manager.’
19 At hearing the agency submitted various documents, including extracts from the Health Administration Act 1982 going to the functions of the Director-General of the agency and his status as the corporation sole known as the Health Administration Corporation, and extracts from the Public Hospitals Act 1929 indicating that the Health Administration Corporation is the competent authority in relation to a range of issues to do with the administration of public hospitals including the conduct of inquiries of the kind that occurred in this case. Also provided were the provisions in the then operative Public Hospitals Act relating to the structure of Boards such as the present one and the chief executive officer. The relevant Gazette notices as to the appointment of the Board and the appointment of the applicant (11 August 1993 for a term of 5 years) were provided. These materials were seen as relevant to the submission of the applicant in the document dated 5 October 2001 relating to waiver of legal professional privilege by disclosure.

20 Written submissions were received from the agency (dated 28 August 2001 with minor amendments made at hearing) and from the applicant (dated 5 October and 24 October 2001). No sworn statements were provided to the Tribunal as to what the recipients or author of the advice (the subject of the legal professional privilege claim) saw as the purpose or purposes of the advice. However the submission lodged on 31 August 2001 by the Department is furnished in the name of the advice’s author, Ms Crawshaw, formerly the Director, Legal and now Solicitor to the Agency. I have primarily relied in reaching my conclusions on an examination of the internal contents of the documents presented for scrutiny; and the assertions in Ms Crawshaw’s submissions.
D1: Report of Management Review of Barwon Health Service (the Eagleton Report): Partial Release. As to exempt material, cl 10 (Legal Professional Privilege) relied upon.

21 Mr Eagleton’s report is just over 10 pages long. The passage exempted from release comprises three lines on page 8. It refers to the advice given to Mr Butler, Chairman of the Board, by the Director, Legal of the Department. Based on the nature of the report and the description given of the advice by the Eagleton report, and having regard to its contents, I am satisfied that it is advice of the kind that is protected by the legal professional privilege exemption.
D5: Letter A McCarroll to OR Butler dated 15 March 1995 (Tab 6 to Report): Partial Release. Legal Professional Privilege claim.

22 This is a letter to the Chairman of the Barwon Health Board (Mr Butler) from the Chief Operating Officer, (Acting) of the Department (Mr McCarroll). It is apparent from the text released that this letter is a response to concerns expressed to the Department by the Board over permitting the applicant to continue as General Manager. It deals at length with issues to do with ‘suspension’ action taken by the Board, and the options that may be available under law to remove the applicant from her position.

23 The exempted part has five main paragraphs, and conveys to the Chairman of the Board advice received from the Director, Legal.

24 It is plain from the material released to the applicant that at this point the Board had taken action (‘suspension’) which had potential legal significance especially as it might expose the Board and the agency to claims. Equally there were legal issues raised by the question of what procedures might now be appropriate to adopt to examine the circumstances of the difficulties that had arisen between the Board and the General Manager. I am satisfied that the material exempted falls within the legal professional privilege exemption.
D46: Attachment AD to Appendix A. Notice to all Board Members: Partial Release. Legal Professional Privilege claim.

25 This document is headed Notice to All Board Members and is from Mr Butler (Chairman) undated but recording conversations of 9 March with Ms Debbie Green (General Manager, Rural Health and Direct Services) of the Department relating to the Board’s decision (suspension) and seeking advice. The released portion states that Ms Green asked him to ring Ms Crawshaw (Director, Legal) to discuss the matter. The portion deleted sets out the Director’s advice and 6 points of advice (points 7 and 8 have been released).

26 I am satisfied from this material that the purpose of the communication was to obtain legal advice, and the material is covered by the legal professional privilege exemption.
D48: Attachment AF to Appendix A Letter A McCarroll to OR Butler dated 15/3/95: Partial Release. Legal Professional Privilege claim.

27 This is a copy of D5 and my conclusions in respect of D5 apply.

Waiver
28 The claim to legal professional privilege can be waived by express or implied conduct (for example through disclosure); or waiver may be imputed from conduct as a matter of fairness. See generally Walden & Toni v Leichhardt Municipal Council [2001] NSWADT 81 (orders set aside on appeal without substantive consideration of the reasons: [2001] NSWADTAP 36). This is not, in my view, such a case.

29 The applicant has made a detailed argument as to why waiver should be found to have occurred in her submissions of 5 October 2001.

30 The material reveals that the Chairman of the Board was during March 1995 in close communication with the Department over the Board’s concerns in respect of the applicant and its decision to suspend her. That there is a close nexus between the operation of the Department, the various legal capacities of the Director-General and the function and responsibilities of Boards of Health Services is evident from the legislation to which the Tribunal’s attention was drawn by the Department. I agree with Mr Mullen for the agency that the Board was a separate statutory entity, but one under the control and direction of the Minister, and by relevant delegations, the Director-General.

31 During the relevant period the Department and the Chairman both consulted the Director, Legal and her advice was shared. Her ‘client’ at this point was the Minister (and by extension the Government), whose responsibilities were administered by the Director-General. On the material before me the advice was shared between the relevant officers of the Department and the Chairman. The Chairman in turn conveyed the advice to the Board members. At all points, I consider, the advice remained advice confidential to Government as the ultimate client and was only shared within the Government with those with a proper interest in the advice. The Board members had a relevant interest. I agree with the agency’s submission that the provision of the advice by the Chairman to other members of the Board does not constitute a waiver of the privilege: Re the Fallon Group Pty Ltd and Federal Commissioner of Taxation (1995) ATC 2134 at 2142.

32 The applicant, then an employee of the Board and ultimately the Government, is understandably aggrieved that she was not shown the advice. But that is to be expected in a situation where a board of directors is examining its legal position in relation to action it has taken or proposes to take against its chief executive.

33 As I see it, this is not a case of the kind referred to by the applicant where there are two clients with a ‘joint interest’; but instead it belongs to the category of ‘common interest’, as explained by Sheller JA in Farrow Mortgage Services Ltd v Webb (5 July 1996, CA, unreported). The Chairman, the Directors and the relevant officers of the Department had a common interest in the issue of what action, if any, was needed in relation to the position of the General Manager and disclosure between them of the contents of legal advice for that purpose did not place at risk the privilege. In my view there was only one client in relation to the questions raised by the Board, the Government in its capacity as the manager of health services, and there were two wings of the Government with a relevant interest in the matter - the Board and the Department. Situations could possibly arise where a Board and the Government had competing interests requiring them to deal with separate legal advisers but I do not see this as such a situation.

34 As a result of restructures, the Barwon Health Service no longer exists. The legal successor is the body known as the New England Health Service. Contrary to the applicant’s view, I do not regard it as necessary (as distinct from the agency choosing to do so) for the agency as the holder of the relevant documents to seek the opinion of the successor body in relation to whether it wishes to waive privilege. The Department is entitled to proceed on the basis that the privilege subsists unless there is evidence to the contrary in the documents. In any event, Mr Mullen advised the Tribunal that the responsible officer of the New England Health Service has seen the documents subject to the claim of privilege and wishes to press it.

35 In my view there is nothing on these facts to sustain a case of waiver by disclosure or by imputation.

Scope of Original Request
36 There is dispute between the parties as to whether the applicant’s original request covered material now located by the agency, material connected with Mr Eagleton’s inquiry. The parties asked for a ruling on the issue from the Tribunal, and in the circumstances, I consider that it would assist the resolution of the matter to give a ruling.

37 The applicant’s original request (tab 1, letter to Tribunal dated 31 May 2001) was expressed as follows:

‘I wish to be provided with a copy of the Eagleton Report in accordance with the FOI Act. This report was commissioned in April/May 1995 by the then Director General, Mr John Wyn Owen. A copy of the terms of reference for this review are enclosed.

Note that I am the General Manager, Barwon Health Service referred to in the correspondence.’

38 In response to the request, Eagleton’s principal report was released (with some claims to exemption as to parts) but some attachments referred to in the report (which included statements made to the inquiry) had yet to be found. When located the attachments were treated as falling within the scope of the request. The Tribunal was advised that the request, as finally determined, covered both of these bodies of material.

39 The applicant explains the difficulty that she had in formulating the request at the time not knowing with any great clarity what documents might be relevant to her application. This problem will often affect access applicants. It is one acknowledged by Parliament in framing the FOI Act. The Act places a duty on agencies to takes such steps as are reasonably practicable to assist the applicant in framing their requests with sufficient clarity (s 19). An unduly rigid approach to the scope of the application should not be taken by the Tribunal.

40 I agree with the applicant that a request for a report, made by an inquiry of the grave kind that Mr Eagleton undertook, can not reasonably be construed as confined only to the head document, containing Mr Eagleton’s summation of his findings, his opinions and his final recommendation. While such a document is often in the parlance of government administration referred to as the report, the true position as I see it is that the report comprises both the head document and all the material which it incorporates by reference, in particular that material which is appended or attached.

41 In the case of this request, the agency noted at hearing that at the time of its receipt the agency had no file consolidating the Eagleton report.

42 Since the final determination of the request more attachments have been located. They were tendered confidentially to the Tribunal. There are 9 documents with 5 bearing marked tabs - B, D, E, H, I - and 4 bearing unmarked tabs. They comprise statements and other material with contents that are relevant to the terms of the inquiry.

43 The report listed under List of Persons Interviewed all persons interviewed over 4 days and written submissions received. There are letter indications alongside some of these names and in relation to the documents now produced the letters correspond to the marked tabs that I have mentioned above. I consider that the new material with the letter tabs should be regarded as incorporated into the report. The 4 unlettered items are also relevant to the inquiry, though not, I am inclined to consider, strictly forming part of the report.

44 The future conduct of the applicant’s request as it related to this material was discussed at the hearing. The agency was prepared to deal with this material by way of a new request. I see that as an appropriate way to deal with the situation.

45 At the conclusion of the hearing on 24 October 2001 the following directions were given as to the further conduct of the matter:

‘1. As to the present application, decision in relation to the legal profession privilege exemption reserved. Parties have leave to file and serve any additional material within 7 days.
2. As to present application, following directions in relation to the hearing on the personal affairs and confidentiality exemptions:
(i) agency to file and serve a list of the affected documents within 14 days, with an indication as to the nature of the data deleted
(ii) applicant to file and serve any submissions within a further 7 days
(iii) matter to be listed for hearing at a date to be advised, with the parties to be invited to advise 5 days before the scheduled date as to how they wish to participate.
3. Tribunal notes that the parties have agreed that the applicant will lodge a fresh FOI application in relation to the series of documents referred to in the attachments to the Eagleton Report. Tribunal recommends to the agency that it waive the fee.’
ORDERS
1. Decision under review affirmed as it relates to Documents 1, 5, 46 and 48.

2. Application to be relisted for further planning meeting.