Ferns v Commissioner, Department of Corrective Services

[2007] NSWADT 103

CITATION:	Ferns v Commissioner, Department of Corrective Services [2007] NSWADT 103
DIVISION:	General Division
PARTIES:	APPLICANT Craig Ferns RESPONDENT Commissioner, Department of Corrective Services
FILE NUMBER:	063296
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	19 January 2007
DATE OF DECISION:	7 May 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	access to documents - legal professional privilege - Freedom of Information Act - access to documents - legal professional privilege
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998
CASES CITED:	General Manager, Work Cover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Mann v Carnell (1999) 201 CLR 1 Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL; [2005] 1 AC 610 Waterford v The Commonwealth of Australia (1987) 163 CLR 54
REPRESENTATION:	APPLICANT H Ferns, agent RESPONDENT D Hartman, solicitor
ORDERS:	1. The respondent’s decision in respect to document number 14, 15 and 16 is affirmed; 2. The respondent’s decision in respect to document number 17 is set aside and in substitution thereof a decision that, within 21 days, the applicant be granted access to a copy of document number 17 with the exempt material deleted in accordance with this decision.

REASONS FOR DECISION

1 This is an application in which the applicant, Craig Ferns, seeks review of a decision of the respondent in respect to his request of 15 February 2006, pursuant to the Freedom of Information Act 1989 (‘the FOI Act’), for access to specified documents held by the respondent. After some clarification as to the scope of the FOI request, the respondent identified 19 documents that it held which came within the request. These documents were numbered 1 to 19 and following an internal review request the respondent determined to grant the applicant full access to document numbered 1 to 8 and 10 to 13. Partial access was granted to document number 9 and access to document number 14 to 19 was refused. Access to the deleted material in document number 9 was refused on the grounds of clause 6(1) of Schedule 1of the FOI Act (personal information), however these deletions are not the subject of this application and are therefore not considered any further.

2 In respect to document number 14 to 19, access was refused on the grounds that they were exempt under clause 10(1) of Schedule 1 of the FOI Act: i.e. on the grounds of legal professional privilege. Subsequently, the respondent granted the applicant access to document number 18 and 19. On 7 November 2006, by consent, the Tribunal made orders setting aside the respondent’s determination in respect of documents 18 and 19.

3 Notwithstanding the release of document number 18 and 19, the applicant pressed its application for review in respect to document number 14, 15, 16 and 17 and on 7 November 2006, the parties requested that the Tribunal determine these remaining issues on the papers following the filing of evidence and submissions.

Relevant law

4 The relevant legislation is that contained in the FOI Act which gives every person a ‘legally enforceable right to be given access to an agency’s documents in accordance with’ the FOI Act: see s.16(1) of the FOI Act. That Act also provides that on receipt of a request under the FOI Act, the agency is to determine whether access to the documents for which access is being sought is to be given or refused together with any charge payable for dealing with the application: see s.24 of the FOI Act. An agency may refuse access to a document if it is an exempt document: see s.25(1)(a) of the FOI Act. An exempt document includes a document referred to in any one or more of the provisions in Schedule 1 of the FOI Act: see s.6 of the FOI Act. As mentioned above, in this application, the relevant provision is clause 10 in Schedule 1 which provides the following:

‘(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the grounds 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.’
5 S.61 of the FOI Act provides that: ‘in any proceedings concerning a determination that is made by an agency under the Act, the burden of establishing that the determination is justified lies on the agency’. That is, where an agency has refused access to a document under the FOI Act, the onus is on the agency to prove, on the balance of probabilities, that the grounds (i.e. exemptions) on which access has been refused is applicable to the document concerned. In this application, the onus is on the respondent to establish that its claim that the documents which remain in dispute do come within the terms of cl.10(1) of Schedule 1 of the FOI Act.

6 In this application, there is no dispute as to the legal principles that are applicable to confidential communications for which a client may claim legal professional privilege. As pointed out by the NSW Court of Appeal in its decision in General Manager, Work Cover Authority of NSW v Law Society of NSW [2006] NSWCA 84 at [67] per McColl JA and Handley and Hodgson JJA agreeing:

‘Legal professional privilege is a rule of substantive law which enables a person to resist the giving of information or the production of documents to a third party which would reveal confidential communications between the person and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.’
7 At [69] to [71] McColl JA considered the decision of the High Court, in Waterford v The Commonwealth of Australia (1987) 163 CLR 54. In that decision the High Court confirmed that legal professional privilege extends to confidential professional communications between government agencies and their legal representatives where they are made with the requisite purpose, even though the legal representative is also an employee of the agency. Her Honour went on to cite that which had been said by Mason and Wilson JJ in Waterford at p 61-64, namely: ‘Whether in any particular case the relationship is such to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment …’

8 At [73] McColl JA went on to state that:

‘Once it is established that the legal practitioner was acting in the requisite capacity, a confidential communication will attract privilege even if it contains extraneous matter as long as it was prepared for the dominant purpose of giving legal advice. The difficulties the inclusion of extraneous matter may cause where lawyers provide advice in a legal context was discussed in Waterford where Mason and Wilson JJ said (at 66):
“… [The] presence of matter other than legal advice may raise a question as to the purpose for which it [the document] was brought into existence but that is simply a question of fact to be determined by the Tribunal and its decision on such a question is final…”’
9 At [80] McColl JA cited with approval the following conclusion of Lord Scott of Foscote in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL; [2005] 1 AC 610 that “legal advice privilege should … be given a scope that reflects the policy reasons that justify its presence in our law” and that “legal advice privilege must cover also advice and assistance in relation to public law rights, liabilities and obligations.” See also Brennan J in Waterford (at 74-75).

Evidence

10 The respondent has provided to the Tribunal, on a confidential basis, copies of document number 14, 15, 16 and 17.

11 In addition to this, the respondent has filed a ‘Statement of Evidence’ of Margaret Parmeter, dated 28 November 2006. In that ‘Statement of Evidence’ Ms Parmeter stated the following:

‘2. I am the Director of the Employment and Administrative Law Branch (“EALB”) of the Department of Corrective Services (the “Department”). The EALB does not belong to the legal services division of the department but provides advice to the Department on a range of employment and administrative law issues, including privacy and personal information, and represents the Department at hearings at various Tribunals including the Administrative Decisions Tribunal (“ADT”). The EALB does not normally become involved with privacy matters until they are referred to the ADT unless the Branch is asked to provide legal advice.’
12 In her statement Ms Parmeter goes on to state that: ‘I was admitted as a solicitor in April 1996 and have been practising as a solicitor and have held a practising certificate since that time.” She goes on to state the following in respect to document number 14, 15 and 16:
‘A. Legal Professional Privilege

In late April 2004 I recall having a conversation with Murray McPherson, Director Legal Services. He was involved with the internal review by Brett Kent, then a legal officer employed in the legal services branch, as he was Mr Kent’s supervisor. Mr McPherson discussed the issue under consideration and I commented that there was some relevant case law which may be relevant. Mr Kent contacted me by e-mail on 30 April 2004 to seek advice on legal aspects of his internal review pursuant to the Privacy and Personal Information Protection Act 1998, as a result of the conversation I had had with Mr McPherson.

5. Documents 14, 15 and 16 are e-mail communications between myself and Brett Kent for the purpose of giving and receiving legal advice.

13 In its internal review determination, the respondent had made the following statements in respect to document number 14 to 19:
‘These documents are inter-departmental emails, which contain matter that would be privileged from production in legal proceedings on the grounds of legal professional privilege. …

In response to the points raised in your application, I advise that I have accepted the following advice:

The Department is not obliged to describe the documents that it claims are subject to legal professional privilege. Brett Kent was employed as a legal officer and was providing legal advice in relation to the Privacy and Personal Information Protection Act 1998. …’

14 It is noted that the original decision and the internal review decision did not identify the date of these documents, nor the author or the recipient.

15 The applicant’s agent has attached to her submissions a copy of an email dated 5/14/04 (i.e. 14 May 2004) and sent at 7:24pm from Brett Kent to Michael Woodhouse concerning the review he was conducting pursuant to s.53 of the Privacy and Personal Information Protection Act 1998 (‘PPIP Act’). In this email, Brett Kent describes himself as ‘Solicitor Legal Branch, NSW Department of Corrective Services.’ It would appear from the content of this email and other material filed by the applicant’s agent that the review, which was being conducted by Brett Kent was an internal review, as requested by the applicant, on 26 March 2004, under the PPIP Act.

16 A copy of the applicant’s PPIP Act request was not provided, however, the respondent has not disputed the sequence of events, as set out in the applicant’s written submissions, or the documents that were attached to the submissions. From the contents of the abovementioned email, it would appear that the applicant’s internal review request related to conduct of officers at a Professional Conduct Management Committee (‘PCMC’) on 27 August 2003 during which the PCMC considered and discussed a ‘police brief’ in respect to the applicant. The minutes of that meeting record that the PCMC agreed with a recommendation of Superintendent Maa that the applicant, who at the time was an officer of the respondent, should not be returned to the Dog Unit.

17 It would appear that, some time after this meeting, on 15 and 16 September 2003, Mrs Ferns spoke to Ms Parmeter over the telephone in respect to the material that was placed before the PCMC in regard to the applicant and the what had been decided at that meeting in regard to this material and other material before the Committee. Mrs Ferns has attached a typed file note to her submissions which state that on 16 September 2003, Ms Parmeter had advised her that the applicant’s matter had not been referred to the PCMC and that Commander Rogers, a member of the Committee, had merely informed the Committee of his decision in respect to the applicant’s matter. According to Mrs Ferns, Ms Parmeter agreed to raise certain aspects of the matter with the PCMC at its meeting the following day.

18 In another typed file note Mrs Ferns has recorded that on 15 September 2003, prior to her telephone conversation with Ms Parmeter, Mrs Ferns had been advised by an officer of the human resources division of the respondent that Ms Parmeter was the director of the PCMC and that she had just returned to work after 3 weeks leave.

19 On 22 February 2004, Mrs Ferns, on behalf of the applicant, sought advice in respect to reports that Superintendent Maa had provided to Parramatta Police in respect to the applicant. She also requested access to the covering letter that Superintendent Maa had provided and this request was made pursuant to the PPIP Act. The letter also raised concerns about the conduct of Mr Maa in respect to the applicant’s removal from the Dog Unit. On 18 March 2004, Ms Parmeter responded to Mrs Ferns’ letter and advised that in light of extensive correspondence between Mrs Ferns and the various sections of the respondent agency, the PCMC had decided that no useful purpose would be served by revisiting the issue of her son’s return to the Dog Unit and that no further correspondence would be entered into in regard to that transfer.

Applicant’s submissions

20 It is convenient to deal with the applicant’s submissions first as his agent, his mother Mrs Ferns, has raised a number of matters which she asserts demonstrate that Ms Parmeter failed to have the requisite independence from her employer when document number 14, 15 and 16 were brought into existence. In summary these matters were as follows:

(a) on the basis of the contents of the email referred to in paragraph [15] above and the evidence of Ms Parmeter, the dominant purpose of the communication was for the purpose of Brett Kent performing his administrative functions under s.53(4)(a) of the PPIP Act;

(b) at the time the communications were made Ms Parmeter did not have the requisite independence from the respondent when giving the alleged advice that is the subject of the documents in issue as she had a ‘substantial involvement in the matters the subject of the application’. I understand this to mean that Ms Parmeter was involved in the conduct that was the subject of the 2004 PPIP Act internal review requests. In this regard Mrs Ferns also asserts that the applicant has been denied procedural fairness in regard to the allegations that were made against him and on which the decision to not allow him to return to the Dog Unit were made;

(c) the evidence fails to establish that at the time the documents in issue were brought into existence Brett Kent sought to establish a client lawyer relationship with Ms Parmeter. It is asserted that the evidence is that in April 2004, Ms Parmeter was responsible for the disciplinary matter involving the applicant and she had advised Mr McPherson in respect to that matter.

21 While it has not been stated expressly, I understand the essence of the applicant’s contentions are that the requisite relationship between legal adviser and client did not exist between Brett Kent and Ms Parmeter at the time document number 14, 15 and 16 came into existence, or alternatively as a result of the alleged non independence of Ms Parmeter, the advice she gave was for an improper purpose.

22 In respect to document number 17, the applicant points out that the respondent has produced no evidence which supports its contention that this document is exempt on the grounds of legal professional privilege.

Respondent’s submissions

23 In its initial submissions the respondent provided a comprehensive out line of the relevant legal principles concerning legal professional privilege where the lawyer providing the legal advice is an employee of the client agency. It is unnecessary to repeat these. In respect to the documents in question the respondent contended that on the evidence, Ms Parmeter was called upon to provide legal advice in relation to the applicant’s PPIP request and the documents in question came into existence for the dominant purpose of providing that advice and on this basis alone the documents in question were privileged. It went on to state that regardless as to whether Brett Kent was performing duties as a legal officer or as an administrative officer, in the circumstances the documents were privileged.

24 In its submissions in reply the respondent addressed the contentions of the applicant in respect to Ms Parmeter’s independence, her conflict of interest and that the advice had not been sought by the client. In respect to Ms Parmeter’s independence, the respondent contended that the fact that Ms Parmeter was involved in other matters concerning the application did not mean that she lacked the requisite independence when providing legal advice in regard to applicant’s PPIP request. In regard to the assertion of conflict of interest the respondent submits that no conflict of interest can arise where a legal adviser acts for a single client, which was the case in this application. And finally it contended that the evidence demonstrated that Brett Kent had sought the advice in question.

Consideration

25 It is unclear as to why the applicant has not been provided with the details of the date, time, sender and recipient of the documents in question. While these details are part of the document over which privilege has been claimed, it is usual practice to disclose these details where they do not also disclose the essence of the communication for which privilege is claimed as it is these details that provide some content in which the privilege has been claimed. As I have not heard any argument on this issue I have retained the confidentiality of these details in these reasons for decision, but suggest that in future consideration be given to providing these details where they do not amount to a waiver of the privileged communication.

26 There are two factual matters which require determination in this matter. These are (a) whether the requisite relationship of independent legal adviser was in existence when the documents in question came into existence and (b) whether at the time they came into existence, they came into existence for the dominant purpose of providing or being requested to provide legal advice.

27 From the material that is before the Tribunal the respondent has satisfied me that at the time the documents came into existence there was such a relationship in which Ms Parmeter was the legal adviser to the respondent. It is Ms Parmeter’s uncontested evidence that she is a solicitor and that she provides legal advice on administrative law issues including legal issues arising from the PPIP Act. As mentioned in paragraph [9] above, advice of this nature is privileged.

28 There is no material which indicates that Ms Parmeter gave that advice for an improper purpose or that the respondent, through Brett Kent or any other officer of the respondent, sought that advice for an improper purpose. The material provided by the applicant indicates that Ms Parmeter was not the subject of the conduct for which the applicant had sought review under the PPIP Act. The material indicates that Ms Parmeter sought to address the concerns that had been raised by Mrs Ferns in September 2003 and that Ms Parmeter was a member of the PCMC. The question as to whether the applicant was denied procedural fairness in respect to concerns that were raised by Mrs Ferns in her letter of 22 February 2004 is not a matter for determination by the Tribunal. In any event, as I have said on the basis of the material before the Tribunal there is no evidence to suggest that Ms Parmeter or any other officer of the respondent agency were acting for an improper purpose in so far as it related to the documents in question.

29 I also agree with the contentions of the respondent that the fact that Ms Parmeter was involved in other matters on behalf of the respondent concerning the applicant does not of itself make Ms Parmeter an interested party. What must be assessed from the material is Ms Parmeter’s position or relationship to the respondent client at the time the communication came into existence. As I have said this was that of legal adviser in respect to the applicant’s PPIP request. It must also be remembered that absent of any evidence of improper purpose by the client, if the communication falls within the relevant principles then it is the client’s privilege regardless of any subsequent concerns of conflict the legal adviser may have had.

30 From the material that is before the Tribunal, I also find that, at the relevant time, Brett Kent was not acting in the capacity of an independent legal adviser and that no client/lawyer relationship existed between himself and the respondent agency. At all times he was acting for the agency in respect to its obligations under the PPIP Act to conduct a review of the conduct the subject of the applicant’s request. I also find that in this capacity he sought legal advice from Ms Parmeter in respect to his administrative functions.

31 In respect to the second issue I have dealt with this issue in the context of the documents that are the subject of this application.

Document number 17

32 It is convenient to first deal with document number 17. As pointed out by the applicant, Ms Parmeter does not give any evidence in respect to this document. The reasons for this are obvious as she is not a party to that communication. On the basis of my findings above concerning Brett Kent and with no further evidence from the respondent, on whom the onus rests, I am not satisfied that the parties to this communication are such that when the communication came into existence that there was a lawyer/client relationship between them. In any event, having regard to the content of the document I also find that at the time it came into existence the dominant purpose of the communication was administrative in nature and not for the purpose of obtaining or providing legal advice and would therefore not be privileged.

33 The document does however, contain a reference to a privileged communication and in this regard I have considered whether the disclosure of this privileged communication amounted to a waiver of that communication: see Mann v Carnell (1999) 201 CLR 1. In my opinion, having regard to the material before the Tribunal it does not. The disclosure was made for a very limited purpose to another officer of the respondent agency and clearly not with the intention of waiving the privilege in regard to that communication.

34 In light of the privileged material only forming a small part of the document, in my opinion, it would be practicable for the respondent to give the applicant access to a copy of the document with the exempt material (i.e. that which is contained in the second paragraph following the comma) deleted pursuant to s.25(4) of the FOI Act.

35 Accordingly, for the reasons stated above, the decision of the respondent in respect to document number 17 is not the correct and preferred decision and should be set aside.

Document number 14, 15 and 16

36 In my opinion, having regard to the material before the Tribunal and my findings above in respect to the relationship between Ms Parmeter and Brett Kent, I find that these documents contain confidential communications which came into existence for the dominant purpose of obtaining or providing legal advice and that they are privileged. Accordingly, for these reasons the decision of the respondent is the correct and preferred decision and should be affirmed.

37 I have also considered whether it was practicable to provide the applicant with a copy of these documents with the exempt material deleted pursuant to s.25(4) of the FOI Act. In my opinion it is not practicable.

Orders

38 The Tribunal orders:

1. The respondent’s decision in respect to document number 14, 15 and 16 is affirmed.

2. The respondent’s decision in respect to document number 17 is set aside and in substitution thereof a decision that, within 21 days, the applicant be granted access to a copy of document number 17 with the exempt material deleted in accordance with this decision.