Else v Commissioner of Police, NSW Police Force

[2021] NSWCATAD 317

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Else v Commissioner of Police, NSW Police Force [2021] NSWCATAD 317

Hearing dates:

22 March 2021

Date of orders:

29 October 2021

Decision date:

29 October 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

Administrative Law – government information – access application – legal professional privilege – waiver – conclusive presumption against disclosure

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Evidence Act 1995

Cases Cited:

Betzis v Commissioner of Police [2020] NSWCATAD 71

Chetcuti v The University of Sydney [2020] NSWCATAD 164

Law v Wollondilly Shire Council [2013] NSWADT 203

McKean v Department of Justice [2016] NSWCATAP 93

Park v Transport for NSW [2018] NSWCATAD 82

SL v University of Sydney [2011] NSWADT 65

Yee v Medical Council of NSW [2017] NSWCATAD 370

Category:

Principal judgment

Parties:

Sylvia Else (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Sylvia Else (Applicant in person)

Solicitors:
Sparke Helmore Lawyers (Respondent)

File Number(s):

2020/00288889

Publication restriction:

Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 disclosure of the material filed by the Respondent on a confidential basis is prohibited.
That material is not to be released to the applicant or the public without further order of the Tribunal.

Reasons for Decision

Introduction

1. This is an application by Ms Sylvia Else (“the Applicant”) seeking review of a decision by a delegate of the Commissioner of Police (“the Respondent”) in relation to the Applicant’s application for access to information under the Government Information (Public Access) Act 2009 (“the GIPA Act”).

2. The access application sought the following information:

1. Documents, including but not limited to E-mails, statements, reports and sound recordings, relating to Complaints submitted by Sylvia Else about Traffic and Highway Command, dated 23 April 2020 and 8 July 2020, with form numbers #681189 and #714467,

2. Records of searches made in COPS relating to “Sylvia Else or [her address] since 1st August 2019.

3. The Respondent decided to provide access to some of the requested information but refused access to two documents on the following basis:

1. that there was conclusively presumed to be an overriding public interest against the disclosure of one document on the basis that disclosure would reveal information protected by legal professional privilege; and

2. that disclosure of one document could reasonably be expected to:

1. prejudice the effectiveness of the NSWPF’s functions; and

2. prejudice the prevention, detection or investigation of a contravention of the law or prejudice the enforcement of the law.

4. The scope of the application was ultimately reduced and, as a result, a single document (“the withheld information”) remains in dispute. The issue to be determined is whether the withheld information is protected by legal professional privilege.

Applicable legislation

5. Under section 63 of the Administrative Decisions Review Act 1997 the Tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Respondent’s decision is the correct and preferable one.

6. The object of the GIPA Act as stated under section 3(1) is to open government information to the public. The GIPA Act is to be interpreted and applied so as to further its object. The meaning of "government information" is broad. Section 4 provides that government information means information contained in a record held by an agency. Access is only restricted when there is an overriding public interest against disclosure.

7. It is not disputed that the information the subject of this application is government information that is held by an agency.

8. Section 5 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Public interest considerations in favour of disclosure are not limited. A Note to section 12 provides:

Note—

The following are examples of public interest considerations in favour of disclosure of information—

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)   The information is personal information of the person to whom it is to be disclosed.

(e)   Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

9. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

10. Government information for which it is to be "conclusively presumed that there is an overriding public interest against disclosure" is given "some special protection" by section 14(1) of the GIPA Act: McKean v Department of Justice [2016] NSWCATAP 93 at paragraph [11]. An agency is not required to balance the public interests in favour of, or against, disclosure before refusing access to that information; and the Tribunal is precluded from considering the public interest test in relation to it: Betzis v Commissioner of Police [2020] NSWCATAD 71 at paragraph [31], referring to Yee v Medical Council of NSW [2017] NSWCATAD 370 at paragraph [41].

11. This distinction was also explained in Park v Transport for NSW [2018] NSWCATAD 82 at paragraph [13]:

"In general terms, government information is released to applicants unless it meets the criteria of information particularised in Schedule 1 of the GIPA Act. However, in various instances, government information not referred to in the Schedule may be withheld from release on the basis that there is an applicable public interest consideration against disclosure sufficient to 'override' the general public interest consideration in favour of disclosure. In all other instances the GIPA Act broadly contemplates release of government information."

12. Section 14 of the GIPA Act provides:

14 Public interest considerations against disclosure

1. It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

2. The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

   13. Clause 5 of Schedule 1 provides:

5 Legal professional privilege

1. It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

2. If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

3. A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

   14. The test for legal professional privilege in clause 5 of Schedule 1 to the GIPA Act is the test set out in section 118 of the Evidence Act 1995. This approach has been confirmed by the Tribunal in a number of cases: see for example discussion in Chetcuti v The University of Sydney [2020] NSWCATAD 164. Section 118 of the Evidence Act provides as follows:

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—

(a)   a confidential communication made between the client and a lawyer, or

(b)   a confidential communication made between 2 or more lawyers acting for the client, or

(c)   the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

15. The term “client” is defined in section 117 of the Evidence Act to include, relevantly:

(a)   a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),

(b)   an employee or agent of a client,

…

16. Accordingly, the Tribunal must be satisfied that:

1. the information is a confidential communication between lawyer and client;

2. the communication was created for the dominant purpose of providing legal advice to the client; and

3. the Respondent has considered whether it is appropriate to waive the privilege.

17. The concept of “Legal advice” is relatively broad. In Law v Wollondilly Shire Council [2013] NSWADT 203 Judicial Member Molony considered the meaning of the expression at paragraphs [83] – [84] where he stated:

83. Legal advice is a "fairly wide" concept: Kirby v Centro Properties No 2 [2012] FCA 70, [80] per Bromberg J. It has been held to include a report as to whether a debt was properly classified (Kirby) and a report of an investigation into alleged misconduct in Council planning processes (Woolley v Lismore City Council [2013] NSWADT 10, per Higgins DP at [60]). This is so as legal advice extends beyond a simple narration of the law to encompass "what should prudently and sensibly be done in the relevant legal context': Balabel v Air India [1988] Ch 317, at 330 per Taylor LJ.

84. In DSE (Holdings)Pty Ltd v Intertan Inc (2003) FCR 151 Allsop J expressed his understanding of those words of Taylor LJ in Balabel, at [45] -

"I do not read the reasons of Taylor LJ as extending the privilege beyond legal advice. The reasoning of Taylor LJ was clearly directed to the privilege being so limited. What legal advice is, however, goes beyond formal advice as to the law. This recognition does not see the privilege extend to pure commercial advice. In any given circumstance, however, it may be impossible to disentangle the lawyer's views of the legal framework from other reasons that all go to make up the "advice as to what should prudently and sensibly be done in the relevant legal framework"· (Taylor LJ in Balabel at 330). That is how I read this last cited paragraph of Colman J: not extending the privilege beyond legal advice to commercial advice, but as recognising the form and nature of advice in a practical day to day context.

18. If clause 5 of Schedule 1 applies to the withheld information, there is a conclusive presumption of an overriding public interest against disclosure. If not, the issue is whether there are public interest considerations against disclosure that outweigh the public interest considerations in favour of disclosure.

19. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in section 15 of the GIPA Act which provides as follows:

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles—

(a)   Agencies must exercise their functions so as to promote the object of this Act.

(b)   Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)   The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)   The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)   In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

20. Section 55 of the GIPA Act provides that personal factors of the application, being the Applicant's identity and relationship with any other person, their motive for making the access application, and any other factors particular to the Applicant, may be taken into account as factors in favour of providing an applicant with access to information. The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

21. Section 105 of the GIPA Act provides that the onus of establishing that an agency's decision is justified lies on the agency.

Legal Privilege

22. In SL v University of Sydney [2011] NSWADT 65 at paragraphs [21] – [26] Judicial Member Fitzgerald considered a number of authorities in relation to the issue of exemption on the ground of legal professional privilege. She stated:

21. 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 to enable the legal advisor to give or the client to receive legal advice; or to be used in pending or contemplated proceedings. See Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 as affirmed in Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner [2002] HCA 49 ; (2002) 213 CLR 543.

22. 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 and 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 v Propend Finance Pty Ltd (1997) 188 CLR 501 at 509, 550, 597).

23. The privilege applies to confidential communications between government agencies and their salaried legal officers provided they have the necessary degree of independence (see Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 62 and 73).

24. As set out in Chan v Department of Education and Training (GD) [2010] NSWADTAP 7:

'The agency carries the onus of proof in establishing that documents are exempt on the ground of legal professional privilege under s 61 of the FOI Act: 'the burden of establishing that the determination is justified lies on the agency'. As Graham J said in Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445: 'It is for a party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence, but it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The Court has power to examine the documents for itself, a power which has been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence [various authorities cited].'

It is necessary to establish that in-house legal staff had the requisite degree of independence to bring the affected documents within the purview of privilege, having regard to the principles laid down by the High Court in Waterford v The Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54. While Gibbs CJ in Attorney General (NT) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500 at 510 was inclined to the view that the privilege could only be claimed by a lawyer who has been admitted to practice, the law is now clear that the privilege does extend a situation where a non-qualified person, such as a law clerk, is giving advice subject to the supervision of a practitioner: see, for example, Glengallan Inv P/L & Ors v Arthur Andersen & Ors; Equuscorp P/L & Anor v Glengallan Inv P/L [2001] QCA 115 ; [2002] 1 Qd R 233 per Williams JA at [19]; see also, Southern Cross Commodities Pty Ltd (In Liq) v Crinis [1984] VicRp 61; [1984] VR 697 (Young CJ).

The material before the Tribunal

23. The Respondent has filed a copy of the withheld information and other material on a confidential basis. Section 64 of the Civil and Administrative Tribunal Act 2013 applies to that material.

24. The Respondent relies on the affidavit of Mr Gervais Laird dated 23 February 2021 and open and confidential submissions.

25. The Applicant has not been provided copies of the confidential material.

26. The Applicant provided submissions in relation to the issue in dispute.

Mr Gervais Laird

27. Mr Laird is a solicitor employed in the Office of General Counsel and has the day-to-day carriage of these Tribunal proceedings. Mr Laird provided an affidavit dated 23 February 2021 in which he outlined his personal role and the arrangements under which solicitors in the Office of General Counsel are engaged.

28. Mr Laird’s evidence is that he has practised law in New Zealand, the United Kingdom and New South Wales and that he holds a NSW Practising Certificate - Government legal practitioner which he has held since 2017.

29. He stated that the Office of the General Counsel is a separate business unit of the NSW Police Force (“NSWPF”) which provides legal advice to the organisation. Lawyers attached to the Office of the General Counsel report to the General Counsel who is a direct report to the Commissioner of Police.

30. In his role at the Office of the General Counsel Mr Laird provides legal advice on a range of legal issues affecting the NSW Police Force, including external reviews of decisions made under the GIPA Act. He also provides specialist legal advice and support to the Respondent's Public Affairs Branch. He provides legal advice to the various internal business units who have an interest in the proceedings and also provides instructions to the external law firm engaged to appear for the Respondent in the proceedings.

31. In relation to the withheld information he stated:

I have viewed the document which has been confidentially filed by the Tribunal, which is an email I sent to Chief Inspector Phillip Brooks of the NSWPF Traffic and Highway Command dated 27 August 2020 (Email Advice).

I have not been involved in dealing with the Applicant's access application or the decision made in relation to the release of certain information to the Applicant. I became aware of these proceedings when the NSWPF's InfoLink team contacted me as part of preparing their decision on the access application to discuss the Email Advice with me and seek the General Counsel's instructions on whether legal professional privilege in the Email Advice was to be waived ...

Access to the Email Advice has been refused in full on the basis that disclosure of the Email Advice would disclose information which is privileged from production in legal proceedings on the ground of legal professional privilege ...

32. He further stated:

I provided the Email Advice to Chief Inspector Phillip Brooks in my capacity as a solicitor. Chief Inspector Phillip Brooks was my internal client.

The Email Advice has the disseminating marker "Sensitive: Law Enforcement" which indicates that access is to be restricted on the basis that the contents of the email relates to law enforcement related matters. The footer of the Email Advice contains the following warning:

"This email and any attachments may be subject to legal professional privilege and should not be communicated to any third party without the consent of the sender. If you are not the named recipient please contact the sender to arrange for the return or destruction of the email".

The content of the Email Advice is confidential. Access is limited to the parties to the email communication only. Records created by the Office of the General Counsel are otherwise stored in a dedicated part of the NSWPF's network and access is restricted the individuals attached to the Office of the General Counsel.

The Email Advice was created for the dominant purpose providing legal advice to my internal client in connection with litigation (Tribunal review proceedings) involving the Applicant.

33. In relation to the issue of waiver of legal professional privilege, Mr Laird stated:

The General Counsel is the only officer of the NSWPF who can waive legal professional privilege. The Acting General Counsel was consulted in accordance with Schedule 1 clause 5(2) of the 6IPA Act in respect of the Email Advice. She determined not to waive legal professional privilege in the document.

The legal professional privilege in the document has not otherwise been waived.

To release the Email Advice to the Applicant In these proceedings would disclose information which is protected by legal professional privilege.

Discussion

34. If the withheld information is subject to a conclusive presumption against disclosure, it is not necessary to balance the public interests in favour of or against disclosure before refusing access to it.

35. As I have noted, the withheld information has been filed with the Tribunal. I have considered that document. I am satisfied that the information is “legal advice” for the purposes of clause 5 of Schedule 1 to the GIPA Act and section 118 of the Evidence Act 1995.

36. I agree with the Respondent’s submission that the withheld information:

1. is an email chain entitled ‘‘Email Chain - Chief Insp Brookes 28.04.2020”;

2. is a confidential communication between Mr Laird and his internal client;

3. was created for the dominant purpose of Mr Laird providing legal advice to his internal client;

4. was intended to be confidential between Mr Laird and his internal client; and

5. bears a disseminating marker that is intended to limit its circulation and includes a warning that the content may be protected by legal professional privilege.

37. In accordance with clause 5(2) of Schedule 1 to the GIPA Act, the Respondent has considered whether to waive legal professional privilege in the information. It has determined not to do so.

38. I am satisfied that the withheld information contains legal advice and it is subject to a claim for legal professional privilege for the purposes of section 118 of the Evidence Act. I am satisfied that disclosure of the withheld information would disclose information that would be “privileged from production” for the purposes of clause 5(2) of Schedule 1 to the GIPA Act.

39. It follows that the information is subject to a conclusive presumption against disclosure. It is conclusively presumed that there is an overriding public interest against disclosure of information therefore it is not necessary that I consider the issue of whether there is an overriding public interest against disclosure of the information for the purposes of the GIPA Act.

40. Accordingly, the Respondent’s decision to refuse to release the withheld information is the correct and preferable decision and it should be affirmed.

Order

1. The decision under review is affirmed

”**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 29 October 2021