Foster and Comcare
[2004] AATA 1192
•11 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1192
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/731
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTINA FOSTER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member K L Beddoe Date11 November 2004
PlaceBrisbane
Decision The Tribunal decides:
(a) the decision under review is set aside;(b) the matter is remitted to the respondent to give effect to the Tribunal’s reasons for decision; and
(c) there is a stay of 28 days for the decision to come into effect.
......[Sgd].......
K L Beddoe
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – Exemptions – documents relating to employee compensation – legal professional privilege – internal working documents surveillance video
Freedom of Information Act 1983 s49
Safety Rehabilitation and Compensation Act 1988 s59Re McMaugh and Australian Telecommunications Commission (1991) 22 ALD 393
Baker v Campbell (1983) 49 ALR 385
Waterford v Commonwealth of Australia (1987) 71 ALR 673
Grant v Downs (1976) 11 ALR 577
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49.
Re Packer and Others v Deputy Commissioner of Taxation (1983) 53 ALR 589.
Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112REASONS FOR DECISION
11 November 2004 Senior Member K L Beddoe 1. The applicant applied under the Freedom of Information Act 1983 (the FOI Act) for access to all her files held by the respondent. She acknowledged that she had previously been granted access to some of her files pursuant to section 59 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act”).
2. It appears that the delegate of the Chief Executive Officer decided to grant the applicant access to all documents other than exempt documents under the FOI Act pursuant to section 59 of the SRC Act.
3. By a notice dated 8 May 2003 the delegate claimed exemption from disclosure for documents described as internal working documents, investigation documents and documents that would be privileged from production in legal proceedings.
4. The applicant sought internal review of that decision. On internal review access was granted to some further documents but the original decision was otherwise affirmed.
5. The applicant then made a valid application for review in this Tribunal.
6. Since that time the respondent has granted access to further documents – I presume pursuant to section 59 of the SRC Act and not in breach of section 26 of the Administrative Appeals Tribunal Act 1975 (the “AAT Act”). In that regard it is relevant to take note that in these proceedings the Tribunal is not exercising powers under section 37 of the AAT Act. There have been separate proceedings in the Tribunal before a Tribunal differently constituted where those powers could be exercised, and it would be inappropriate for me to consider the operation of that section in these proceedings. The operation of that section was a matter for the Tribunal constituted to hear the applications for review of reviewable decisions under the SRC Act (c/f Re McMaugh and Australian Telecommunications Commission (1991) 22 ALD 393). I have confined myself, as I understand I am required to do, to the provisions of the FOI Act.
7. I note the compensation case has been finalised.
8. Following the hearing the respondent’s solicitor wrote to the Tribunal on 25 February 2004 and 28 May 2004 enclosing copies of further documents relevant to the applicant’s claim. At the hearing the applicant conducted her own case and Mr Swan appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 were before the Tribunal as the “T” documents.
9. An order under sub-section 35(2) of the AAT Act applies to Documents T8, T9, T10 and T11.
10. The following documents were tendered and marked as exhibits:
Exhibit A 4 extracted documents
Exhibit 1 Affidavit of Kristina Anne King
Exhibit 2 Affidavit of Gary Thomas King
Exhibit 3 Section 64 documents
Exhibit 4 Section 64 documents
Orders have been made under section 35(2) of the AAT Act in relation to Exhibits 2, 3 and 4.
11. The Tribunal also heard oral evidence from the applicant and from Kristine Anne King, an officer of the respondent.
12. Sub-section 36(1) of the FOI Act provides for exemption of internal working documents in these terms:
“36 Internal working documents
(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a)would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.”
13. Paragraph 37(2)(b) of the FOI Act relevantly provides for exemption of documents affecting enforcement of law, disclosure of which would or could reasonably be expected to disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law, which would or would be reasonably likely to prejudice the effectiveness of those methods or procedures.
14. Unlike sub-section 36(1) there is no public interest test in relation to paragraph 37(2)(b).
15. Section 42 of the FOI Act provides 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. While not conceding that section 45 of the FOI Act did not operate in relation to documents for which exemption is claimed, Mr Swan did not press such a claim and did not make submissions in relation to section 45.
16. While I heard oral evidence from two witnesses, the primary evidence in this case is in the documents claimed to be exempt and about which I am unable to make detailed findings of fact without breaching section 64 of the FOI Act.
17. After considerable delay the parties made written submissions after the hearing. These submissions have been examined and considered.
18. The main issue in these proceedings is the claim that a large number of documents are exempt within section 42 of the FOI Act.
19. In Baker v Campbell (1983) 49 ALR 385 a majority of the High Court held that the doctrine of legal professional privilege applied not only to judicial and quasi-judicial proceedings but also to situations where there are no anticipated judicial or quasi-judicial proceedings.
20. One of the majority (Dawson J) explained the decision at page 445:
“But the protection which is unquestionably afforded by legal professional privilege in judicial proceedings (in this case criminal proceedings), would be set at nought if by executive or administrative processes revelation of professional confidences could be compelled, particularly if by this means evidence of them might subsequently be given in any subsequent judicial proceedings. It is obvious, to my mind, that any person seeking advice such as must have been sought in this case would be seriously hampered in giving full instructions, as would his legal adviser be in giving advice, by the prospect that the instructions or the advice might have to be disclosed under compulsion and so become available for use, in one way or another, to his disadvantage. Clearly, those instructions and the consequent advice would be likely to be relevant in establishing at least the fact of agreement, which is a necessary part of any conspiracy, and the nature of the agreement. And yet, it is just such relevant evidence that the law excludes in judicial proceedings because of its overriding regard for the confidentiality of communications between a legal adviser and his client and it does so at the expense of the availability of the whole of the relevant evidence. It is hardly to be supposed that the principle which lies behind that exclusion is so narrow in its application as to be confined to judicial or quasi-judicial proceedings with the result that it may be thwarted by executive or administrative processes.”
21. The decision of the High Court in Waterford v Commonwealth of Australia (1987) 71 ALR 673 put beyond doubt that documents brought into existence for the sole purpose of obtaining and giving and receiving legal advice in relation to proceedings in this Tribunal would sustain a claim for legal professional privilege. There the Court referred to the sole purpose test (as explained in Grant v Downs (1976) 11 ALR 577). That must now be considered in light of the Court’s decision in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49. There the Court overruled Grant v Downs, holding that the test for whether legal professional privilege exists is whether the dominant purpose for which the document came into existence was the purpose of obtaining legal advice and communication of legal advice or information which may be used in existing or possible legal proceedings. Of course it is the client’s privilege and may be waived by the client.
22. In this case the respondent has done so in relation to some documents for which exemption is not claimed.
23. The following extract from the dissenting judgment of Barwick CJ in Grant v Downs at page 579-80 is the accepted statement of the law relating to legal professional privilege in Australia (and also for the purposes of section 42 of the FOI Act):
“Having considered the decisions, the writings and the various aspects of the public interest which claim attention, I have come to the conclusion that the court should state the relevant principle as follows: a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority 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.
In the application of this principle, the fact that the person who produced, or the person or authority who or which directed the production of the document, had in mind other uses of the document will not preclude that document being accorded privilege, if it were produced with the requisite dominant purpose. Further, the circumstances that the document is a ‘routine document’ will not be definitive. The dominant purpose of its production may none the less qualify it for professional privilege. Whether or not a document does so qualify is a question ultimately to be decided, if need be, upon an inspection by the judge of the document itself, and by the application of the stated principle.”
24. An example of a routine document that was held to not be privileged is the solicitor’s trust account ledger considered by Connolly J in Re Packer and Others v Deputy Commissioner of Taxation (1983) 53 ALR 589. There his Honour followed the majority in Grant v Downs but the judgment remains instructive.
25. I have reviewed all the documents referred to in the schedule to Exhibit 1 in respect of which exemption is claimed under section 42 of the FOI Act. I am satisfied that the claimed documents are exempt pursuant to section 42 except the following documents:
(a)E2, E3, E4, E5, E6, E7, E8, E9, E10, E11, E14, E15, E20, E21, E22, E24, E25;
(b)The following folios of document E26 – 047, 053, 054, 055, 056, 057, 058, 059, 063;
(c)E27, E28, E29, E32, E33, E36, E37, E39. E41, E42, E43, E44, E45, E47, E50, E51, E53, E54, E55, E57, E59, E61, E63, E64, E65, E66, E67, E68, E69, E76, E77, E78, E79, E80, E81, E84, E85, E86, E90, E92, E93, E96, D97, E99, E100, E101, E103, E104, E105, E106, E108, E112, E118, E121, E123, E124.
26. I am not satisfied that any of the abovementioned documents were prepared for the dominant purpose of providing legal advice, nor, if it is relevant, for the dominant purpose of the respondent being provided with professional legal services relating to proceedings in this Tribunal. Most of the documents are purely procedural and only refer to information on the public record.
27. However some of those documents are of the nature of internal working documents. They disclose matters of opinion, advice, recommendation, consultation or deliberation in relation to the applicant’s claims for compensation.
28. There is a strong public interest in the respondent (and this Tribunal) making correct or preferable decision in relation to claims for compensation under the SRC Act. There is also a strong public interest, as evidenced by section 59 of the SRC Act, that a claimant for compensation is aware of what it is that is being said against a favourable determination of a claim. Disclosure allows a claimant to deal with adverse material.
29. The present case involves applications for review in this Tribunal. I note section 39 of the AAT Act concerns parties before the Tribunal being granted procedural fairness.
30. In the ordinary course of events it might be thought that section 59 of the SRC Act and sections 37 and 39 of the AAT Act would result in an applicant/claimant obtaining access to all documents relevant to proceedings in the Tribunal. Certainly those statutory provisions reveal a public policy consistent with a public interest in full disclosure of relevant documents.
31. However the FOI Act is not limited in its application to documents relevant to proceedings before the Tribunal. Documents characterised as irrelevant to the Tribunal proceedings do not have the benefit of those statutory provisions except where section 59 might be thought to apply.
32. Except for the documents referred to below, the documents referred to in the schedule to Exhibit 1 are in my view exempt documents pursuant to section 36(1) of the FOI Act. I am satisfied that exemption of these documents would not be contrary to the public interest.
33. I reject the respondent’s assertion that disclosure is contrary to the public interest because a document is an exempt document under another section of the FOI Act. I am satisfied that where a document is exempt under another section of the Act then it is futile to consider whether it is also exempt under sub-section 36(1). Very often disclosure would be contrary to the public interest because a document is exempt under another provision of the FOI Act. It is necessary to consider the essential character of the document and apply the provisions relevant to the document. That is not to deny that a particular document may be exempt under more than one provision of the Act.
34. A document brought into existence as part of the deliberative processes of the respondent will only be an exempt document if disclosure under the FOI Act would be contrary to the public interest. For example it would be contrary to the public interest to allow access to a document subject to legal professional privilege if the privilege has not been waived.
35. I am satisfied that the following are documents that cannot properly be characterised as internal working documents and that each is not subject to the claim for exemption because release of those documents revealing the deliberative processes of the respondent would be contrary to the public interest. I have not considered documents which I regard as exempt in terms of section 42 of the Act.
36. The following documents are not exempt in terms of section 36 of the Act and in respect of which the respondent has claimed that exemption:
E2, E3, E4, E5, E6, E7, E8, E9, E10, E11, E14, E15, E20, E21, E22, E24, E25, E27, E29, E36, E37, E39, E41, E42, E43, E44, E45, E47, E51, E53, E54, E55, E57, E61, E63, E64, E65, E66, E67, E68, E69, E76, E77, E78, E79, E80, E81, E84, E85, E86, E90, E92, E93, E96, E97, E99, E100, E101, E103, E104, E105, E106, E108, E112, E118, E121.
37. In coming to those conclusions I have considered the reasons for decision in Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112. At page 118-9 the Tribunal (Davies J, President, Coates and Sinclair, Members) said:
“The term ‘deliberative processes’ would seem to have a wide ambit. The term was considered by Beaumont J in Harris v Australian Broadcasting Corporation (1983) 50 ALR 551. At 560, his Honour said that: ‘…deliberation suggests not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision.’
This phrase was adopted from the judgment of Friedman AJ in Sacramento Newspaper Guild v Sacramento County Board of Superiors (1986) 69 Calif Reporter 480 at 485.
His Honour’s decision and the operation of s 36(1) were considered in depth by the Tribunal in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588. With respect to s 36(1), the Tribunal concluded (at 606):
’58 As a matter of ordinary English the expression ‘deliberative processes’ appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. ‘Deliberation’ means ‘The action of deliberating: careful consideration with a view to decision’ (see The Shorter Oxford English Dictionary). The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one’s course of action. In short the deliberative processes involved in the functions of an agency are its thinking process – the process of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description. Only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does s 36(1)(a) come into play.
59 It by no means follows, therefore, that every document on a departmental file will fall into this category. Section 36(5) provides that the section does not apply to a document by reason only of purely factual material contained in the document (see, in this regard, the Full Court decision in Harris). See also s36(6) relating to reports and the like. Furthermore, however, imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36(1)(a) applies.
60 It is documents containing opinion, advice, recommendations etc relating to the internal processes of deliberation that are potentially shielded from disclosure – documents that might, perhaps, have been more aptly described in the headnote as ‘Internal Thinking Documents’. Out of that broad class of documents, exemption under s 36 only attaches to those documents the disclosure of which is ‘contrary to the public interest’ [s36(1)(b) of the FOI Act and cf ss 35, 36, 37(1)(b) and 37(2) of the Administrative Appeals Tribunal Act 1975].”
38. The applicant also made submissions about copies of a surveillance video (E124). I have not seen the document but if it is a typical surveillance video (and I infer it is) then it will be a purely factual record upon which an administrative decision may or may not be based. It is not in any sense part of the “thinking” process of the agency – it is part of the factual base on which the thinking process may or may not rely.
39. I accept that there are decisions pointing both ways in relation to surveillance videos but I am persuaded that where the video relates to a claim for compensation and to the extent that the video contains personal information about the applicant it is not an exempt document under either section 36 or section 42 of the FOI Act. Nor does the video itself come within the terms of section 37 of the Act because the video itself does not disclose its sources or prejudice the conduct of any investigation.
40. I have a different view in relation to the surveillance reports which I have perused, because disclosure of those reports could reasonably be expected to prejudice conduct of an investigation and also disclose confidential sources of information. In my opinion the investigation reports and associated papers are within the terms of section 36 and or section 37 of the FOI Act and remain so, even if the particular investigation has been completed.
41. The decision under review will be set aside and the matter remitted to the respondent to give effect to these reasons.
42. There will be a stay of 28 days for the Tribunal’s decision to come into effect.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe
Signed: T Ritchie
Associate
Date/s of Hearing: 23 February 2004
Date of Decision: 11 November 2004
The Applicant represented herself.
The Respondent was represented by Mr Swan.
0
7
0