GJ v NSW Department of Education and Training

[2008] NSWADT 310

CITATION:	GJ v NSW Department of Education and Training [2008] NSWADT 310
DIVISION:	General Division
PARTIES:	APPLICANT GJ RESPONDENT NSW Department of Education and Training
FILE NUMBER:	073330
HEARING DATES:	2 May 2008
SUBMISSIONS CLOSED:	2 May 2008
DATE OF DECISION:	21 November 2008
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Access to documents – confidential material – personal affairs and legal professional privilege
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin’s case) Humane Society International Inc v National Parks and Wildlife Services [2000] NSWADT 133 P v Greater Western Area Health Service (GD) [2007] NSWADTAP 57 Re Stewart and Department of Transport (1993) 1QAR 227 University of NSW v McGuirk [2006] NSWSC 1362 Young v Wicks (1986) 13 FCR 85
REPRESENTATION:	APPLICANT In person RESPONDENT G Shirm, solicitor
ORDERS:	1. The respondent’s decision in regard to the documents referred to in paragraph 48(a) in these reasons for decision is affirmed 2. The respondent’s decision in regard to the remaining documents as referred to in paragraph 48(b) and (c) to these reasons for decision is varied to a decision to grant the applicant access to the document that is at folio 363 and to grant the applicant access to a copy of the documents that are at folio 329, 330, 446, 448, 449, 465 and 480 with the exempt matter as referred to in paragraphs [45] and [46] of these reasons for decision being deleted 3. The respondent is to provide the applicant with a copy of the documents referred to in order 2 above within 28 days from the date of these reasons for decision.

Introduction

1 GJ (‘the applicant’), has made an application seeking review of a decision of the NSW Department of Education and Training (‘the respondent’) arising from a request she had made, in February 2007, under the Freedom of Information Act 1989 (‘the FOI’) for access to documents. In her FOI request the applicant had sought access to ‘the full IAB investigation written by Peter Mulhall following his interview of me in April 2006.’

2 The respondent replied to that request on 4 June 2007. In that response, the respondent said that in regard to the ‘full IAB investigation’ it had in its possession ‘a document with 567 numbered pages which seems to meet that description.’ The respondent asked the applicant if she had received this document and if not, whether she sought access to it. The applicant subsequently confirmed that she did seek access to this document, with the exception of 79 pages that were the record of her interview with Mr Mulhall as she already had a copy of that document.

3 The respondent initially determined to grant the applicant access to many of the pages (referred to as ‘folios’ by the respondent) in the document.

4 There were however, folios (pages) which the respondent determined to refuse access in part or whole. The grounds on which it refused access were that these folios were exempt under Schedule 1 of the FOI Act. Following the respondent’s internal review determination, the applicant was granted access to some of these folios (pages) and the applicant was granted access to further folios during the course of these proceedings, including during the course of the hearing.

5 At the conclusion of the hearing, some 192 folios (pages) remained in dispute. These folios (pages) made up 82 documents. In some cases this included two copies of the same document. The documents in dispute were identified, by their folio numbers, in a schedule prepared by the respondent. For each document listed in the schedule there was a brief description of the nature of the document, a reference to the relevant exemption clause of Schedule 1 of the FOI Act relied on by the respondent in regard to the folio(s) and a brief statement of reasons for the claimed exemption. The exemptions relied on by the respondent were clause 4(1)(b) (confidential source of information in relation to the enforcement or administration of the law), clause 6 (personal information), clause 10 (legal professional privilege) and clause 13(b) (information obtained in confidence) of Schedule 1 of the FOI Act.

6 The respondent provided the Tribunal, on a confidential basis, with a copy of the documents in dispute.

Issues

7 The onus is on the respondent to establish, on the balance of probabilities, that its determination in regard to the documents for which access has been refused, is justified; see section 61 of the FOI Act. That is, the onus is on the respondent to prove:

(a) that the documents for which access has been refused are documents that are exempt under the grounds claimed; and

(b) if they are exempt, whether the correct and preferred decision is to refuse the applicant access to the document. This is often referred to as the residual/override discretion: see University of NSW v McGuirk [2006] NSWSC 1362.

The evidence

8 As mentioned above, the document that the applicant had sought access to was the full investigation report of Mr P Mulhall. This investigation was conducted in 2006 following a complaint made by the applicant. That complaint concerned the manner in which Mr J. Malins, an employee of the respondent in its Employee Performance and Conduct Directorate (‘EPAC’), had conducted an investigation of her husband in 2002. That investigation concerned alleged inappropriate conduct by the applicant’s husband, a former high school teacher, with a female student at the school where he taught. During the course of his investigation, Mr J. Malins spoke to the applicant on several occasions and the applicant complained about the manner in which Mr Malins had recorded what she had said during these conversations.

9 The respondent engaged IAD Risk Management and Consultant Services to investigate the applicant’s complaint, who in turn appointed Mr Mulhall to do the investigation. It would appear that as part of his investigation, Mr Mulhall was given documents that had come into existence during the course of the investigation undertaken by Mr Malins and that these documents were incorporated as part of Mr Mulhall’s investigation report.

10 At the hearing, the respondent relied on a statement of evidence from Mr Michael Waterhouse, Director of the Legal Services Directorate of the respondent and Ms Jane Thorpe, the Director of the EPAC.

11 In his statement of evidence, Mr Waterhouse gave evidence about the respondent’s child protection obligations under the provisions of the Commission for Children and Young Persons Act 1998. He said that the investigations of Mr Malins and that of Mr Mulhall were both carried out in the course of the respondent’s obligations under that Act. He explained that investigations of this nature were highly confidential and were usually undertaken on the basis of the voluntary cooperation of the persons concerned. The reasons for this are discussed more fully below.

12 In her statement of evidence, Ms Thorpe set out the role of the EPAC, which included investigating employee conduct that involved students. She set out the relevant EPAC investigation procedures for such investigations, the reasons why such procedures were followed and possible consequences for the respondent in meeting its child protection responsibilities if documents of the kind that are the subjects of this application were to be disclosed. These are discussed more fully below.

13 Mr Waterhouse and Ms Thorpe were also made available for cross-examination by the applicant.

14 The applicant relied on an affidavit she had filed and served for the purposes of her application. That affidavit set out in some detail the basis of her concern and the reasons why she was pursing her application for access to the documents that are the subject of this application. The respondent objected to the affidavit, to the extent that it contained submissions. As the applicant is not legally trained nor was she legally represented, I accepted her affidavit into evidence. In accepting her affidavit I also indicated that to the extent the affidavit contained submissions that these would be regarded as submissions and not evidence.

15 It should be noted that throughout the proceedings before the Tribunal the applicant was supported by her husband. I had also explained to the applicant during planning meetings and again during the hearing that the Tribunal had no jurisdiction to examine the correctness of the investigation conducted by Mr Malins or Mr Mulhall as its jurisdiction was limited to reviewing the decision of the respondent in regard to her FOI request for access to the specified documents.

16 The documents that remained in dispute and for which access was refused on the grounds they were exempt under Schedule 1 of the FOI Act fell into the following categories:

(a) correspondence between Mr Mulhal and Mr Malins, which is marked ‘private and confidential’ (folio 001 – 091),

(b) record of an interview by Mr Mullhal and a witness (folio 103 - 120) and three pages from Mr Mullhal’s report (folio 538, 544 and 545),

(c) letters from Mr Malins to witnesses and marked ‘private and confidential’ (folio 329, 330, 412),

(d) briefing and file notes (marked ‘confidential’) of Mr Malins in regard to his investigation (folio 356 – 370, 377 -378, 381 -382, 384 -389, 391, 410 – 412, 414, 418, 424, 429 – 431, 435, 437, 442),

(e) statements and documents received by Mr Malins during the course of his investigation (folio 398 – 400, 401-403, 415 – 416, 420 – 422, 423, 427 – 428, 439 – 440, 444 – 445 and 446 – 481),

(f) internal file notes of Senior Counsellor and Chief Investigator and marked ‘confidential’ in regards to the investigation conducted by Mr Malins (folio 355, 373 -374, 383, 390, 413, 432, 443),

(g) the respondent’s case management database records in regard to the investigation conducted by Mr Malins - these records are a chronological list of the steps taken during the course of the investigation. Each record is dated and contains a description of the nature of the step taken and a brief statement of what the step involved (folio 331 – 354),

(h) a Notice of Charge (folio 371 -372), and

(i) other correspondence related to Mr Malin’s investigation (folio 401 – 403,).

17 It is convenient to deal separately with the documents that came into existence during or for the purpose of the investigation conducted by Mr Malins to those that came into existence during or for the purpose of the investigation conducted by Mr Mullhall. However, as the exemptions that have been claimed by the respondent are essentially the same for all documents, set out below are the relevant terms of these exemptions.

The relevant legislative exemptions

18 Section 6 of the FOI Act defines the term ‘exempt document’ to include a document referred to in any one or more of the provisions of Schedule 1. Section 25(1)(a) of the FOI Act provides that an agency may refuse an FOI applicant access to a document that is an ‘exempt document’. Section 25(4) of the FOI Act provides that an agency is not to refuse access to an ‘exempt document’ if it is practicable to give the FOI applicant access to a copy of the document with the ‘exempt matter’ deleted and it appears that the FOI applicant would wish to be given such a copy. The term ‘exempt matter’ is defined in section 6 to mean the matter by virtue of which the document is an exempt matter.

19 With the exception of the document that is described as a draft charge (i.e. folio 404 – 409), the respondent has claimed that the documents, the subject of this application, are all exempt under clause 13(b) of Schedule 1 of the FOI Act. That exemption relevantly provides as follows:

13 Documents containing confidential material

A document is an exempt document:

(a) …, or

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.

20 The respondent has also claimed that in addition to the clause 13(b) exemption the documents are also exempt under clauses 4(1)(b) and/or 6 of Schedule 1 of the FOI Act. These exemptions relevantly provide as follows:

4 Documents affecting law enforcement and public safety

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
(a) …

(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, or …

6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

21 Finally, in regard to the draft charge (i.e. folio 404 – 409), the respondent has claimed to be exempt under clause 10 of Schedule 1 of the FOI Act the exemption relevantly 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.

Documents arising from the investigation conducted by Mr Malins

22 As mentioned above, the investigation undertaken by Mr Malins, a principal investigator with the EPAC of the respondent, was an investigation concerning alleged inappropriate conduct of the applicant’s husband with a student. The documents which came into existence during this investigation and which are in issue are those set out in sub-paragraph 16 (c) to (i) above.

Are the documents exempt under clause 13(b)?

23 There are three aspects, which must be established by the respondent in order for the documents to be found to be exempt under clause 13(b). The first aspect is that the document contains matter/information that was ‘obtained’ in confidence. To satisfy this aspect it is not necessary to show that there was an express obligation or understanding that the information was obtained in confidence. This can be inferred from the circumstances in which the information was obtained.

24 It was the evidence of Ms Thorpe that EPAC investigations were guided by the procedures set out in the document entitled ‘Responding to Allegations against Employees in the Area of Child Protection’. These she said placed emphasis on the importance of confidentiality. Persons interviewed during the course of the investigation were normally advised that any information they provided would be kept confidential and they in turn would be requested to keep what they had discussed during the interview confidential. Ms Thorpe also said that documents that came into existence during the course of an investigation were marked ‘confidential’, ‘strictly confidential’ or ‘private and confidential’ and that access to these documents was at all times limited, through appropriate security measures, to those officers who were responsible for decisions arising from the investigation and its findings. Mr Waterhouse gave similar evidence.

25 With the exception of the letters that are folio 329 and 330, the notice of charge that is at folio 371 – 372, the file note of Mr Malins that are folio 368 and 410 and the letters that are folio 449, 465 and 480 (Notices of Interview to staff employed by the respondent), I am satisfied that the remaining documents set out in sub-paragraphs 16 (c) to (i) above contain information that was obtained in confidence. In some cases only part of the document contains information that was obtained in confidence (e.g. the respondent’s case management record that is at folio 331 – 354). They are nevertheless an exempt document (see definition of ‘exempt document’ in section 6 of the FOI Act).

26 In regard to the exceptions at folio 329, 330, 371 – 372, 410, 449, 465 and 480, these are documents created within the EPAC. While I accept that these documents are confidential documents, in my opinion they do not contain information that was ‘obtained’ by the respondent in confidence. That is, unlike other letters or file notes they do not contain any reference to any information Mr Malins or another employee of the EPAC obtained, in confidence, during the course of the investigation of the applicant’s husband. The letters are essentially pro-forma letters of the EPAC that were sent by Mr Malins to prospective witnesses and those who had provided information for the purpose of the investigation. The document that is at folio 410 is a document that is intricately related to the draft notice of charge that is at folio 404 – 409 and which the respondent claims to be exempt under clause 10 of Schedule 1 of the FOI Act. Accordingly, the document that is folio 410 has been considered together with the draft notice of charge.

27 With the exception of the documents that are statements of Mr Malins and records of interview with other employees of the respondent, I am satisfied that the content of the documents I have otherwise found to contain information obtained in confidence is also information of a nature that satisfies the second aspect of the clause 13(b) exemption. That is, I am satisfied that a disclosure of these documents ‘could reasonably be expected to prejudice the future supply’ of information of this kind to the respondent.

28 As explained by Mr Waterhouse in his statement, the Director-General of the respondent has a statutory obligation under section 7(e) and (f) of the Teaching Service Act 1980 to maintain discipline in the teaching service. In addition to this the Director-General is obliged to report conduct of employees that falls within Child Protection provisions of Part 3A of the Ombudsman Act 1974 and to comply with the provisions of section 39 of the Commission for Children and Young Persons Act 1998. Both Mr Waterhouse and Ms Thorpe said that in order to fulfill its obligations of child protection the respondent relies heavily on the voluntary and confidential co-operation of its employees and members of the public to provide it with information about any child within its schools that may be placed at risk. It was pursuant to these child protection obligations that Mr Malins conducted his investigation and I am satisfied that the documents which contain information obtained in confidence, other than those mentioned below, are of a kind, which if disclosed could prevent persons of this kind providing this type of information to the respondent in the future.

29 In regard to the statements of Mr Malins and the records of interview with employees of the respondent (see folio 329, 330, 420 – 422, 427 – 428, 439 – 440, 450 – 464, 472 – 479 and 481 – 484) I accept that Mr Malins and the employees provided the information contained in these documents voluntarily and in confidence. However I am not satisfied that a disclosure of these documents ‘could reasonably be expected to prejudice the future supply’ of information of this kind to the respondent.

30 The statements of Mr Malins set out his observations of relevant events and while these may have been obtained in confidence as the person responsible for the investigation, he would at all times have been obliged to provide such statements as part of his duties as an employee of the respondent. In my opinion, the same applies to the record of interview with the other employees of the respondent. The evidence of Mr Waterhouse was that employees could be compelled to participate in such interviews but the Director-General usually relied on the voluntary co-operation of employees. However, the content of the pro-forma letter sent to the employees who were interviewed by Mr Malins suggested otherwise. On this basis I am not satisfied that the second aspect of the clause 13(b) exemption applies to the records of interview with employees or the statements made by Mr Malins.

31 This leaves the third and final aspect of the clause 13(b) of the exemption, which must also be satisfied by the respondent in order for a document to be exempt under this clause. That requirement is that the documents ‘would, on balance, be contrary to the public interest.’ In my opinion there are only two documents of the documents found to have met the other two aspects of the clause 13(b) exemption which do not also meet this last aspect. These documents are the file note of a conversation the applicant had with Mr Malins on 2 August 2002 and two further file notes dated 18 & 21 July (i.e. the documents found at folio 363, 446 and 448 (in part)). These are documents that concern the personal affairs of the applicant and are discussed more fully below in regard to the clause 6 exemption.

32 For the reasons set out above:

(a) I am satisfied that the documents at folio 331-354, 355, 356-360, 361-362, 367, 368, 369-370, 373-374, 376-375, 377-378, 381-382, 383, 384-389, 390, 391-392, 398-400, 401-403, 411, 412, 413, 414, 415-416, 418, 423, 425, 424, 425-426, 429-431, 432, 435, 437, 442, 443, 444-445, 447-448(in part) are exempt under clause 13(b) of Schedule 1 of the FOI Act.

(b) I am not satisfied that the documents at folio 329, 330, 363, 371-372, 410, 420-422, 427-428, 439-440, 446, 448 (in part), 449, 450-464, 465, 466-479, 480, 481-484 are exempt under this clause.

33 In order for the clause 6 exemption to apply to the documents that are set out in paragraph 16 (c) to (i) above, the respondent must first establish that the documents contain matter that concerns the ‘personal affairs’ of a person. The term ‘personal affairs’ has been considered to be an ‘inherently imprecise concept’ (see Re Stewart and Department of Transport (1993) 1QAR 227 at 225). At the same time, it has been accepted to mean ‘matters of private concern to an individual’ see Young v Wicks (1986) 13 FCR 85 at 89.

34 The name of an employee and information about that employee when used in the context of that person exercising his/her ordinary vocational responsibilities has been found not to be information about the personal affairs of that person: see Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 at 625 (Perrin’s case). However, where the information relates to allegations of inappropriate conduct of an employee then the name of the employee and the information regarding that allegation has been found to be information concerning the personal affairs of that employee: see Humane Society International Inc v National Parks and Wildlife Services [2000] NSWADT 133 at [21].

35 Similarly, where an employee of an agency provides information for the purpose of possible disciplinary action against another employee, the Appeal Panel has held this to be information concerning the personal affairs of the employee providing the information as well as that of the employee the subject of the disciplinary proceedings: see P v Greater Western Area Health Service (GD) [2007] NSWADTAP 57 at [17] to [21].

36 With the exception of two documents (i.e. the documents at folio 398-399 and 404-409) the respondent has claimed that the documents set out in sub-paragraph 16 (c) to (i) are exempt under clause 6 of Schedule 1 of the FOI Act.

37 Having regard to the content of the documents and the circumstances in which they came into existence I am satisfied that each of the documents in the categories set out in sub-paragraph 16 (c) to (i) above contain matter concerning the ‘personal affairs’ of a person(s). This includes the document that is folio 398 – 399. The ‘personal affairs’ to whom they relate include the applicant, the applicant’s husband, the student, members of the student’s family and employees of the respondent who are not officers of the EPAC and who provided information about what they had seen or heard in regard to the allegations the subject of the investigation that was undertaken by Mr Malins.

38 A document that contains information concerning the personal affairs of the applicant will not be exempt under this clause (see clause 6(2) of Schedule 1 of the FOI Act). There are documents which contain information concerning the personal affairs of the applicant. However, those documents also contain information concerning the personal affairs of other persons and on this basis the documents do not fall within clause 6(2).

39 Accordingly, it is necessary to consider the second aspect to the clause 6(1) exemption; namely whether the disclosure of a document ‘would involve the unreasonable disclosure’ of the information concerning the personal affairs of the person(s).

40 Whether a disclosure is ‘unreasonable’ requires consideration of matters such as the nature of the information, the circumstances in which it was obtained, the likelihood of the information being information that the person does not wish to have disclosed without consent, and whether the information has any current relevance: see Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at [51].

41 Having regard to the circumstances in which the documents in issue came into existence, I am satisfied, subject to the exceptions referred to below, that disclosure of the documents would involve the unreasonable disclosure of information concerning the personal affairs of the persons named therein. In making this finding I had regard to the concession of the applicant’s husband made during the course of the hearing. He indicated that he did not object to the disclosure of those documents that contained information concerning his personal affairs and of which he had been given a copy previously. In my opinion, as the concession of the applicant’s husband was a qualified one it was not appropriate to consider it further. The schedule prepared by the respondent adequately identifies the documents and in the event the applicant’s husband seeks access to he remains at liberty to do so. It should however, be noted that there are documents which also contain matter concerning the personal affairs of persons other than the applicant’s husband.

42 The exceptions to my findings in paragraph 41 above are the three folios which record a telephone conversation with the applicant (see folio 363, 446 and 448). Folio 363 is a hand written file note of Mr Malins concerning a telephone call he received from the applicant on 2 August 2008. As this file note was written by Mr Malins in his capacity as an investigator of EPAC and it is his record of what the applicant said, I do not believe that the disclosure of this document to the applicant would involve the unreasonable disclosure of information concerning the personal affairs of the persons other than the applicant referred to in the file note.

43 Folio 446 and 448 (in part) are file notes of a school employee recording a telephone conversation the employee had with the applicant on 18 and 21 July 2002. The respondent consulted (see section 31 of the FOI Act) this employee as to whether he/she objected to the release, to the applicant, of the file notes that are at folio 446-448. The respondent provided the Tribunal with a confidential file note which recorded the oral response of this employee.

44 In my opinion, although the school employee did not write the file note in the same capacity as the file note that was written by Mr Malins, the employee wrote the file notes in her capacity as an employee recording what was said to her by the applicant on the relevant days. The file notes do not otherwise contain any comments or opinion of the employee. It is on this basis that I find that disclosure of these documents to the extent they record the author’s recollection of what was said by the applicant, would not involve an unreasonable disclosure of information concerning the personal affairs of the persons other than the applicant referred to in the file notes. The response of the author of these file notes does not alter my findings.

45 To the extent folio 448 contains personal information unrelated to the applicant’s phone call on 18 July 2002, this information remains exempt under clause 6(1). Disclosure of this personal information would, in my opinion, involve an unreasonable disclosure and remains an exempt matter. Accordingly, the applicant should be granted access to a copy of folio 448 with this exempt matter deleted pursuant to section 25(4) of the FOI Act. In my opinion the same applies to the name and position of the author of the file note that is folio 446.

46 The same provision (i.e. section 25(4)) should be used to grant the applicant access to the pro-forma documents that are at folio 329, 330, 449, 465, 480. Other than the names and addresses of the addressees in these documents, they do not contain any personal information and it would be practicable to provide the applicant with a copy of these with the relevant names and addresses deleted.

47 I have also considered whether there are other documents which contain information concerning the personal affairs of the applicant to which the applicant could be granted access pursuant to section 25(4) with the other exempt matter deleted. In my opinion there are no such documents.

48 For the reasons set out above:

(a) I am satisfied that the documents at folio 331-354, 355, 356-360, 361-362, 367, 368, 369-370, 371-372, 373-374, 375-376, 377-378, 381-382, 383, 384-389, 390, 391-392, 398-400, 401-403, 411, 412, 413, 414, 415-416, 418, 420-422, 423, 424, 425-426, 427-428, 429-431, 432, 435, 437, 439-440, 442, 443, 444-445, 447-448(in part), 450-464, 466-479 and 481-484 are exempt under clause 6(1) of Schedule 1 of the FOI Act,

(b) I am not satisfied that the document at folio 363 is exempt under this clause; and, are exempt under this clause, and

(c) I am satisfied that pursuant to section 25(4) of the FOI Act that it is practicable to give the applicant access to the documents that are folio 329, 330, 446, 448, 449, 465 and 480 with the deletion of exempt matter relating to the personal affairs of persons other than the applicant as identified above.

Are the documents exempt under clause 4(1)(b)?

49 The exemption in clause 4(1)(b) of Schedule 1 of the FOI Act arises from the common law doctrine of public interest immunity. This doctrine operates to protect the anonymity of people who supplied, in confidence, information to the police or other government authority in order to assist them in their law enforcement and administrative functions. These persons are commonly referred to as ‘informers’ who provide information in confidence and do not wish to have their identity revealed. Clause 4(1)(b) is arguably wider as it also operates to prevent not only the disclosure of the identity of an informer but also prevent the disclosure of the existence of an informer.

50 In my opinion, in this application the clause 4(1)(b) exemption has limited if any application to information that is contained in the documents in categories set out in sub paragraph 16(c) to (i) above. The reason for this is that there is no evidence that the person(s) who provided the information contained in any of the documents did so on the basis of being an ‘informer’ not wishing his/her identity being revealed.

51 In the event my construction of clause 4(1)(b) is incorrect, for the reasons set out above, the exemptions in clause 6 and 13(b) will equally apply to the documents other than those at folio 329, 330, 363, 446, 448, 449, 465 and 480. These exceptions do not, in my opinion, contain matter which falls within clause 4(1)(b).

Are the documents at folio 404 – 410 exempt under clause 10?

52 In his statement Mr Waterhouse described the document that is at folio 404-409 as being:

‘… [a] draft notice of charge against a person who was then an officer of the Department, which has been amended by hand by a senior legal officer within the legal services directorate of the department. The handwritten amendments are suggestions as to how the notice of charge should be amended as well as comments concerning matters for further consideration in view of the legal and evidentiary considerations.’

53 In order for legal professional privilege to attach to these documents the respondent must establish that the documents are a confidential communication between a person and his or her lawyer that is made for the dominant purpose of giving or obtaining legal advice or for the provision of legal services, including representation of legal proceedings: see Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543, [2002] HCA 49 at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, and Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49.

54 Where the communication is from the in-house lawyer of the agency the privilege will still attach if the communication is confidential and it came into existence for the dominant purpose to provide the agency with legal advice: see Waterford v Commonwealth (1987) 163 CLR 54 at 62 per Mason and Wilson JJ and Howell v Macquarie University [2008] NSWCA 26.

55 On the basis of the evidence of Mr Waterhouse and the content of the documents I am satisfied that the document that is folio 404-409 is a confidential communication between a senior in-house lawyer of the respondent to Mr Malins and that the communication came into existence for the dominant purpose of EPAC being provided legal advice. As explained by Mr Waterford, the Legal Services Directorate of the respondent provides independent legal advice to departmental officers and that in providing this advice the legal officers are not subject to the direction or the control of any person external to the Directorate. While the in-house lawyers may also provide advice that is not of a legal nature, I am satisfied that the document that is folio 404-409 does contain such legal advice and is exempt under clause 10 of Schedule 1 of the FOI Act.

56 As mentioned in paragraph [26] above, the document that is folio 410 is a confidential file note of Mr Malins relating to the document that is folio 404-410 and in my opinion is also exempt under clause 10 for the same reasons. In the event I am wrong, the document is nevertheless exempt under clause 6 as it concerns the personal affairs of the applicant’s husband.

Documents arising from the investigation conducted by Mr Mulhall

57 There are 14 documents which arose as a result of the investigation conducted by Mr Mullhall. This investigation was conducted by an external investigator at the request of the EPAC. The person the subject of the investigation was Mr Malins. It was an investigation for disciplinary purposes and as mentioned in paragraph [34] and [35] above, a document containing matter that related to this investigation was information concerning Mr Malins’ personal affairs.

58 It was the evidence of Mr Waterhouse that such investigations were guided by the same principles of confidentiality and voluntariness that applied to an internal EPAC investigation.

59 The 14 documents at issue fall into the following categories:

(a) correspondence between Mr Mulhall and Mr Malins (folio 008, 010-011, 012-013, 014, 015, 016, 017, 018, 084-085, 091),

(b) written submissions by Mr Malins (folio 001-004, 005-007),

(c) record of interview with an EPAC staff member (folio 103-120), and

(d) pages 22, 23 and 29 of Mr Mulhall’s report (folio 538, 544 and 545).

60 Having regard to the content of the abovementioned documents, the evidence before the Tribunal and the abovementioned principles that apply to the exemptions in clause 6(1) and 13(b) of Schedule 1 of the FOI act, I am satisfied that the abovementioned documents are exempt documents under these clauses.

61 It is noted that in regard to pages 23 and 29 of Mr Mulhall’s report, the applicant has been provided with a copy of the pages pursuant to section 25(4) of the FOI Act with the exempt matter deleted. For the same reasons set out above, I am satisfied that the deleted material is exempt under clause 6(1) of Schedule 1 of the FOI Act.

The residual discretion

62 In University of New South Wales v McGuirk [2006] NSWSC 1362, Nicholas J held that section 63 of the ADT Act vests the Tribunal with a discretion to order access to a document which is an exempt document if it decides that to do so is the correct and preferable decision with regard to the material then before it. This residual discretion arises by reason of section 25(1) of the FOI Act which provides that an agency, hence the Tribunal, may refuse access to a document that is exempt. That is, even if found to be exempt an agency may nevertheless grant the FOI applicant access to the document requested. This is referred to as the override or residual discretion.

63 In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 the President noted that there should be strong grounds justifying the exercise of this residual discretion to grant access to a document that is found to be exempt. At [27] the President set out some of the factors relevant to the exercise of the discretion.

64 Having regard to the sensitive nature of the documents that are in issue in this application and the fact that public interest factors have already been considered in the context of my findings that most of the documents are exempt under clause 6(1) and 13(b) of Schedule 1 of the FOI Act, in my opinion the correct and preferred decision is to refuse the applicant access to the documents identified in the paragraph above.

Conclusion and Orders

65 For the reasons set out above, in my opinion the decision of the respondent was the correct and preferred decision in regard to all documents other than those contained in folio 329, 330, 363, 446, 448, 449, 465 and 480. On the basis of my findings the appropriate order is to affirm the respondent’s decision in regard to the documents referred to in paragraph 48(a) above and to vary the respondents decision in regard to the documents referred to in paragraph 48(b) and (c) and to grant the applicant access to the document that is at folio 363 and to grant the applicant access to a copy of the remaining documents with the exempt matter as referred to in paragraphs [45] and [46] deleted. It is also appropriate to order that the respondent provide the applicant with a copy of the documents that are at folio 329, 330, 363, 446, 448, 449, 465 and 480 within 28 days after the publication of these reasons for decision.