Harbison v NSW Department of Education and Training

[2009] NSWADT 56

CITATION:	MJ v NSW Department of Education and Training [2009] NSWADT 56
DIVISION:	General Division
PARTIES:	APPLICANT MJ RESPONDENT NSW Department of Education and Training
FILE NUMBER:	083105
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	18 September 2008
DATE OF DECISION:	13 March 2009
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	access to documents - personal affairs - legal professional privilege
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Freedom of Information Act 1989
CASES CITED:	Colakovski v Australian Telecommunications Corporation (1991) 100 ALR Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606(Perrin’s case) Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Howell v Macquarie University [2008] NSWCA 26 Humane Society International Inc v National Parks and Wildlife Services [2000] NSWADT 133 Mann v Carnell (1999) 201 CLR 1 McGuirk v NSW Police [2007] NSWADT 120 Macquarie University v Howell(GD) [2008] NSWADTAP 46 Osland v Secretary to the Department of Justice [2008] HCA 37 Orica Australia Pty Ltd v Limit (No 2) Ltd [2008] VSC 247R Stewart and Department of Transport (1993) 1 QAR 227 Saleam v Director General, Department of Community Services [2002] NSWADT 41 Trade Practices Commission v Sterling (1979) 36 FLR 244 Workcover Authority (NSW)(General Manager) v Law Society of New South Wales (2006) 65 NSWLR 502 Young v Wicks (1986) 13 FCR 85
REPRESENTATION:	APPLICANT In person RESPONDENT G Shirm
ORDERS:	1.The decision of the Department in regard to the documents referred to in paragraph 88 and 89 of these reasons for decision is affirmed 2.The decision of the Department in regard to the documents referred to in paragraph 90 in these reasons for decision is set aside and in substitution thereof a decision that MJ be granted access to those documents (in whole or part) and in accordance with the Tribunal’s findings 3.The decision of the Department in regard to document 1674 is set aside and remitted for further consideration in accordance with paragraph 65 of these reasons for decision 4.Within 21 days of the publishing of these reasons for decision the parties to file and serve a schedule of documents not dealt with in these reasons for decision and which were the subject of the internal review determination of Ms Stathis.

Introduction

1 The applicant, MJ, has made an application seeking review of determinations made by the respondent, the Department of Education and Training (‘the Department’), to refuse her access, in part or in whole, to documents for which she sought access under the Freedom of Information Act 1989 (‘the FOI Act’). There are 3 FOI requests which are the subject of this application. The Department identified the requests as ‘FOI-06-248’, ‘FOI-07-239’ and ‘FOI-07-240’. They are identified in the same manner in this decision.

2 MJ is an early intervention teacher and is employed by the Department. Her work involves assisting children with special needs. The documents for which she sought access all concern her and her work as an employee of the Department. She made the FOI request(s) as she was concerned that the Department held incorrect information about her. This incorrect information she believed had and was continuing to impact on her ‘career, professionalism and health’. There was some basis to MJ’s concerns when, in December 2006 and in March and June 2008, the Department acknowledged particular errors/misinformation of this kind. The Department also apologised for these having occurred.

3 Although MJ ultimately seeks to correct errors, if any, in documents concerning her and held by the Department, this is not a matter that is before the Tribunal in this application. What is before the Tribunal are the determinations of the Department in regard to the 3 FOI requests of MJ for access to documents. This is the extent of the Tribunal’s jurisdiction: see section 38 of the Administrative Decisions Tribunal Act 1997 and section 53 of the FOI Act.

Background

4 It is necessary to give some background to MJ’s 3 FOI requests.

5 MJ made her first FOI request (FOI-06-248) on 31 August 2006. That request sought access to the following documents:

‘Entire file please – any information held on my file and at a regional level. Please include copies of all emails/notes/reports/records of phone conversations/computer records/hard copy records.’

6 Just prior to making this FOI request, on 22 August 2006, MJ had made a claim, to the Worker’s Compensation Commission, seeking compensation against the Department. That claim was finalised on 25 September 2007, with the Commission awarding MJ weekly benefits under the relevant legislation.

7 MJ’s 2006 FOI request was also dealt with by the Department during this 12 month period. The Department took so long to deal with the request as it determined it in several different stages during this time. The initial determination was made on 4 October 2006 and when MJ was dissatisfied with the response of the Department it appears that there was some agreement between her and the Department as to the various categories of documents that were encompassed in her request (see letter dated 2 July 2007 from Mr Cribb of the Department to MJ). At the same time MJ seems to have suggested a priority as to which categories were to be dealt with first. The Department then proceeded to make a determination in respect to the category that was of greatest priority to MJ and once this was done it proceeded to make a determination in regard to the next category and so forth. At each stage the Department determined to grant MJ access to some documents but refused her access to others in whole or in part. The grounds for refusal were that the documents contained exempt matter under clauses 6, 10 and/or 16 of Schedule 1 of the FOI Act.

8 While MJ appears to have originally agreed to the stage process used by the Department, she undoubtedly anticipated being granted access to the relevant documents at the end of each stage and that each stage would be processed quickly. However, when the process became delayed and the Department determined to only grant her access to some documents and refuse her access to others, she understandably became dissatisfied. She was also not satisfied that the Department had identified all relevant documents so she lodged a complaint(s) with the NSW Ombudsman, as she was entitled to do.

9 This stage/step approach utilised by the Department is contrary to the processes provided under the FOI Act (see section 24(2) which provides that an agency is required to determine an FOI request within 21 days of its receipt). After having made determinations on several stages in her request, on July 2007, almost 12 months after her FOI request had been made, the Department requested MJ to pay an advance deposit of $750.00. This was said to be for dealing with the remaining ‘1692’ pages that the Department described as ‘may be relevant to the outstanding aspects of’ her request. The timing of the Department’s request for an advance deposit does not accord with the provisions of the FOI Act: see section 21 and 24(2) of the FOI Act. It is noted that an earlier request was made in November 2006. This too appears to have been outside the 21 day period.

10 On 30 August 2007, MJ paid an advance deposit of $1,000. Why this amount was paid is not clear from the material before the Tribunal.

11 Prior to paying this advance deposit, in or around July/August 2007, at the request of the Department, MJ made a further FOI request. In that request she sought access to the following documents:

‘a documentation from Marnie O’Brien

b documentation from Brian Nowland and

c a copy of my personal file.’

12 The Department categorised this FOI request into two separate FOI requests, namely ‘FOI-07-239’ and ‘FOI-07-240’. The material provided by the Department did not make it clear which file related to which category of documents in this subsequent request of MJ. I can only assume from the description of documents in the schedules prepared by the Department that FOI-07-239 related to documents from Brian Nowland and that FOI-07-240 related to documents from Marnie O’Brien. MJ’s request for access to her personal file I have assumed were dealt with by the Department as part of MJ’s original request (i.e.FOI-06-248).

13 Just prior to paying the advance deposit, MJ received the Department’s determination on the final stage of her 2006 FOI request. Being dissatisfied with this determination, on 30 August 2007, MJ made a request for internal review of the determinations in regard to her 2006 FOI request and the 2007 FOI requests. As the Department had not made a determination within 21 days of receipt of the 2007 request this gave rise to a deemed determination to refuse her access to the documents requested and hence giving her a right to seek internal review (see section 24(2) and 34 of the FOI Act).

14 When she failed to receive a response from the Department in regard to her internal review request (section 34(6) of the FOI Act required the Department to respond within 14 days and a failure to respond is deemed to be a determination to refuse access), MJ lodged a further complaint with the NSW Ombudsman about the Department’s conduct. Of concern to MJ were the Department’s delays, the grounds on which the Department had refused her access to particular documents in whole or in part and the advance deposit that she had paid at the request of the Department. The Department had agreed to repay some of this due to its delays, but it had retained a sum of $472.50.

15 Having completed its investigation of the complaint, on 31 January 2008, the Ombudsman wrote to MJ and the Department. In that letter the Ombudsman suggested the Department reconsider its determination in so far as it related to the clause 16 exemption and suggested that MJ seek to negotiate a further refund of the advance deposit she had paid. When MJ received no response from the Department, she lodged her application to the Tribunal for external review.

The decision(s) the subject of review

16 The decision that is the subject of review is the internal review decision of Elissa Stathis (Manager of the Freedom of Information Unit of the Department), dated 6 May 2008. This decision was made after MJ had lodged her application for review.

17 Ms Stathis’ determination covered the 3 FOI requests and she noted that 3,757 pages had been identified as falling into this request and of these MJ had been give access to about 3,173. In regard to those for which access had been refused originally, Ms Stathis affirmed this determination in regard to many of these. However she only relied on the exemptions under clause 6 or 10 of Schedule 1 of the FOI Act in making her determination. No reliance was placed on the clause 16 exemption and as a consequence Ms Stathis determined to grant MJ access to those documents for which access was refused on this ground alone.

18 Attached to Ms Stathis’ determination was a list of documents for which access was refused in part or whole in the original determinations of the FOI-06-248 request. That list also identified those documents that Ms Stathis had determined in her internal review remained exempt either under clause 6 or 10.

19 Ms Stathis also made a determination in regard to a further refund (in part and not the entire amount) to MJ of the advance deposit she had paid. This issue was subsequently resolved between the parties during the course of the planning meetings. Accordingly, there is no need to consider it any further.

20 Subsequently, the Department also determined that it would not press Ms Stathis’ determination in regard to those documents falling within the FOI-07-239 request for which access was refused. Accordingly I have not considered these documents further in this application other than to make a formal order setting aside this aspect of the Department’s determination and substituting thereof a decision to grant MJ access to these documents.

21 There were other documents in the remaining FOI requests (i.e. FOI-06-248 and FOI-07-240), which the Department did not press further. These are referred to below.

22 At the time of Ms Stathis’ internal review determination, the Department filed and served, for each FOI request, a schedule of the documents for which access had been refused in whole or part. Each schedule was divided into two sections, a section A and a section B. The A section listed the documents that had been determined to contain information that was exempt under clause 6 and the B section listed those that were determined to be exempt under clause 10. The schedule in relation to the documents relevant to FOI-06-248 was further divided into the various stages determinations had been made by the Department.

23 On 28 August 2008, the Department filed and served amended schedules for each FOI request. It is the Tribunal’s understanding that this schedule lists the only documents that remain in dispute. Accordingly, references to documents in this decision are those listed in that schedule.

The issues

24 Although numerous documents remained in dispute, the issues in regard to these are primarily the same. That is, the Tribunal must determine, having regard to the applicable law and the material before it, whether, in regard to each document in dispute:

(a) it contains information falling within the terms of the exemption claimed by the Department (i.e. either clause 6 or clause 10 of Schedule 1); and

(b) if they do contain such information, whether the decision of the Department to refuse MJ access to the document in whole or in part is nevertheless the correct and preferred decision: see University of NSW v McGuirk [2006] NSWSC 1362.

25 It is not disputed that section 16(1) of the FOI Act gives every person a legally enforceable right to be given access to an agency’s document in accordance with the provisions of that Act. Nor is it disputed that 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’ and that an exempt document includes those which contain information falling within clause 6 or 10 of Schedule 1 of the FOI Act: see section 6 and the definition of the term ‘exempt document’.

26 Nor is it disputed that for the purposes of this application, the onus is on the Department to establish that its determination (i.e. that of Ms Stathis) is justified: see section 61 of the FOI Act.

The evidence

27 At the planning meeting on 31 July 2008, the parties consented to this application being dealt with on the papers, subject to the Department filing further evidence and submission and MJ being given an opportunity to reply to these.

28 The Department filed two statements of evidence. The first statement was a statement by Ms Stathis, dated 28 August 2008. The other statement was that of Ms Marni O’Brien, the director of the Occupational Health and Safety Directorate of the Department and dated 29 August 2008.

29 In her statement, Ms Stathis, gave a very brief outline of the FOI requests that are the subject of this application and the basis on which the clause 6 and clause 10 exemptions had been claimed. In regard to the information for which the clause 6 exemption was claimed, Ms Stathis classified these into the following categories:

(a) information concerning the medical condition(s) or medical history, diagnosis or treatment of a person, other than MJ;

(b) information concerning sick, annual or other leave, worker’s compensation claims, work transfer, promotion or work arrangements of a person, other than MJ; and

(c) the name of a student attending a school of the Department and who is under the age of 18 and being provided with an ‘Early Intervention Service’ by the Department.

30 In her statement, Ms O’Brien gave evidence about MJ’s Worker’s Compensation claim. She explained that the claim was forwarded to the Department’s insurance provider, GIO Insurance. She also gave the names of the officers within GIO who, to her knowledge, had dealt with MJ’s claim. She went on to say that GIO had initially instructed James Leslie of Leslie Hargrave Lawyers to act on behalf of the Department in regard to the claim. These instructions were subsequently withdrawn and Rhett Slocombe of Sparke Helmore Lawyers was instructed. Ms O’Brien also provided the names of the Departmental officers, who had or were dealing with the compensation payments to MJ and those involved in her graduated return to work programme. From the material provided these payments and the actual return to work programme appear to have been administrative in nature.

31 Also before the Tribunal was the bindle of documents filed and served by the Department on 23 May 2008. In addition to this Department provided the Tribunal, on a confidential basis, a folder containing a copy, without deletions, of the documents in dispute as set out in the schedules dated 27 August 2008.

32 On 12 September 2008, MJ filed and served a statement made by her. In that statement she set out the background to her FOI requests and the reasons why she was pressing access to the documents she has requested. Attached to her statement were copies of documents that supported her reasons for pressing her claim.

33 Also before the Tribunal is the material filed and served by MJ prior to this, including the bundle of documents received on 28 July 2008. These documents also contain MJ’s reasons for pursuing her application and a list of those matters which she seeks to have addressed. Many of the matters raised by MJ fall outside the jurisdiction of the Tribunal. As explained above, the Tribunal’s jurisdiction is limited to a review of the Department’s determination of her 3 FOI requests.

Documents for which the clause 6 exemption (personal affairs) has been claimed

Relevant law and legal principles

34 Clause 6 of Schedule 1 of the FOI Act provides as follows:

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.

35 Accordingly, in order for the exemption to apply the Department must satisfy the Tribunal of two things. First, it must establish that the information for which exemption is claimed concerns the ‘personal affairs’ of a person other than MJ and if it does it must then go on to establish that the disclosure of this information would involve an unreasonable disclosure of that information.

36 The term ‘personal affairs’ in the context of clause 6 has been found to be an ‘inherently imprecise concept’: see R Stewart and Department of Transport (1993) 1 QAR 227 at 225. At the same time, it has been accepted to mean ‘matters or private concern to an individual’: see Young v Wicks (1986) 13 FCR 85 at 89. There does not appear to be any dispute that the categories of information as described by Ms Stathis in her determination and her statement as summerised in paragraph [29] above is information concerning the personal affairs of such persons.

37 The name of an employee and information about that employee when used in the context of that person exercising his/her ordinary vocational/employment 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 (commonly referred to as Perrin’s case). However, where the information relates to allegations of inappropriate conduct of an employee then the name of the employee concerned and the allegations have been found to concern the personal affairs of the employee: see Humane Society International Inc v National Parks and Wildlife Services [2000] NSWADT 133 at [21].

38 There are other circumstances where the Tribunal and the courts have found that the names and addresses of individuals and particular information in regard to those individuals (other than the FOI applicant) is information concerning the personal affairs of a person. To the extent they are relevant to this application they are discussed below.

39 Whether a disclosure of information concerning the personal affairs of a person would be ‘unreasonable’ is a question of fact involving the weighing up of the public interest in protecting personal privacy against the public interest of persons being granted access to documents held by an agency: see Colakovski v Australian Telecommunications Corporation (1991) 100 ALR, Saleam v Director General, Department of Community Services [2002] NSWADT 41 at [51] and McGuirk v NSW Police [2007] NSWADT 120 at [31]. That is it involves consideration of the matters such as the nature of the information, the circumstances in which it was obtained and the likelihood of the person to whom it relates not wishing it to be disclosed without their consent (see s.31 of the FOI Act which places an obligation on the agency to consult such persons if the information is to be disclosed).

Consideration

40 The documents for which the clause 6 exemption has been claimed all relate to the FOI-06-248 request. In regard to these documents, Ms Stathis determined that only a small part of each document contained information falling within the clause 6 exemption and in accordance with section 25(4) of the FOI Act provided MJ with a copy of the document with the exempt information deleted. Accordingly, the Tribunal is only required to determine whether the deleted information is exempt and whether the decision of Ms Stathis to refuse access to it is the correct and preferred decision.

41 It is convenient to consider these documents in the same three categories that Ms Stathis has dealt with them in her statement (see paragraph [29] above).

42 (a) Information concerning the medical condition(s) or medical history, diagnosis or treatment of a person, other than MJ

In her statement, Ms Stathis identified the following documents as containing information of this nature and that the disclosure of it would involve an unreasonable disclosure:

‘FOI–06–248: 3, 397, 410, 412, 407, 937, 938, 940, 1196, 1495, 18’

43 I have examined the content of the deletions in each of the abovementioned documents and I am satisfied from the material before the Tribunal that the deletions in documents 3, 397, 412, 937, 938, 940, 1196 and 1495 contain information that is exempt under cause 6 as it is information the disclosure of which would involve an unreasonable disclosure of personal in formation of a person other than MJ.

44 I am also satisfied that the deletions on document 18 are exempt for the same reasons. The document is a single page. It appears to be page 5 of a 7 page Worker’s Compensation Statement, dated 28 July 2005 and prepared by GIO for the Department. Recorded on the document is a record of six payments made for specified hours of work, at specified periods of time and at specified weekly rates. The heading to each payment contains a deletion. In her statement of evidence, Ms Stathis said that this was a copy of the actual document contained on MJ’s file. She explained that it was a document generated by the Department’s finance section in Bathurst and it named the people who had received compensation payments, what they had been paid and the basis on which they were paid. She explained that before the document had been placed on MJ’s file, every name, except MJ’s name, was deleted. Ms Stathis said she had not been able to find an original copy of the document without any deletions, but could obtain one should the Tribunal consider it necessary.

45 MJ did not challenge this evidence of Ms Stahis and I assume she has been provided with the other pages of this Statement. If this is correct then MJ is aware of the nature of the information in the deletions.

46 Accordingly, on the basis of the explanation given by Ms Stathis, I find that the deletions are names of employee(s) of the Department, other than MJ, who at the time were receiving compensation payments from the Department. Disclosure of this information I find would involve an unreasonable disclosure of personal information of these employee(s) as it would identify those employees who received the payments in question. Accordingly I am satisfied that the information in the deletions is exempt.

47 Document 410 contains 2 emails. The first email is from Blair Chalmers to Lam Louis that was sent at 2:51pm on 10 October 2006. The second email is an email Margaret Dowe had sent to Blair Chalmers at 2.30pm that day. This second email is also in document 397 and 412 and the email as it appears on document 410 has the same information deleted to that which is deleted in document 397 and 412. There is however also a deletion to the first email on document 410. I have examined the content of this deletion and I find that it concerns the medical condition of MJ and is therefore not exempt under clause 6.

48 Document 407, contains 3 emails. The second email is the email from Blair Chalmers which is the first email on document 410 and the third email is that of Margaret Dowe that is the second email on document 410 and the email on document 397 and 412. The deletions on document 407 are the same as those that were made to document 410 and document 397 and 412. For the reasons set out in paragraph [47] above, I find that the deletion in the second email in document 407 is not exempt.

49 (b)Information concerning sick, annual or other leave, worker’s compensation claims, work transfer, promotion or work arrangements of a person, other than MJ

In her statement, Ms Stathis identified the following documents as containing information of this nature and that the disclosure of it would be an unreasonable disclosure:

‘FOI-06-248: 2, 3, 18, 397, 410, 412, 407, 426, 430, 432, 433, 434, 436, 437, 680, 937, 938, 940, 946, 1047, 1054, 1130, 1196, 1304, 1495, 1537, 1538, 1539, 18-19 and 1670’

50 It was the Department’s contention that the decision of the Queensland Information Commissioner in Stewart (supra) at [93] and the decision of the Victorian Administrative Appeals Tribunal in Re Traynor and Melbourne and Metropolitan Board of Works (No. 2) (1988) 2 VAR 358 that employment related matters such as sick leave, annual leave, promotions, and acting in higher duties were matters relating to the personal affairs of that employee. In my opinion, I do not think that these decisions go so far as to say that information concerning whether a particular employee is absent or present at work on a particular day, is promoted or acting in higher duties is personal information of the employee: see McGuirk v Commissioner of Police, NSW Police Service [2008] NSWADT 72 at [21]. The fact of absence or presence for duty is to be distinguished from information concerning the reason for a person’s absence, which will amount to information concerning the employee’s personal affairs. The same applies to information concerning the fact of promotion or the acting in higher duties.

51 I have examined the documents identified by Ms Stathis as falling within category (b) and I find that the deletions in the documents listed below contain information concerning the reason for an employee’s (other than MJ) leave of absence from work, transfer to another position or for acting in higher duties and also information concerning an employee’s compensation claim. This information I find to be personal information, the disclosure of which would involve an unreasonable disclosure of these employees personal affairs:

2, 3, 18, 397, 410 (with the exception of the deletion in the first email), 412, 407 (with the exception of the deletion in the second email), 937, 938, 940, 946, 1196, and 1495

52 I am unable to make any findings in regard to document 19 and 1047 as no such documents is included in the confidential folder of documents. Nor are they included in the Department’s schedule of documents.

53 Document 1670 consists of three emails. The email at the top of the page was sent on 15 September 2005. Deleted from this email is the name of the sender, its subject matter and the body of the email message. The next email is an email from Ms Batho of the Department to MJ and the bottom email is an email from MJ to Ms Batho. These were sent on 14 September 2005 and the information deleted from these is the subject matter and information in the email message which is the same as the subject matter. The deletions in these emails and the subject matter in the first email appear to have been made on the basis that they name a student attending one of the Department schools. As discussed in (c) below, this information is personal information, the disclosure of which would involve an unreasonable disclosure of that information.

54 However, the information in the deleted part of the body of the first email and the name of the author of the email do not fall within category (c) as discussed below or category (a) discussed above. This email appears to be an email sent in the ordinary course of work of the officer concerned. Accordingly, I find that this information is not exempt under clause 6.

55 In her evidence Ms Stathis said that document 993 was fully exempt under clause 6 as it was a complaint that had been made by 2 Departmental officers who had no supervisory role over MJ. She went on to say:

‘[The] Department encourages the making of complaints by its employees and if Departmental employees were aware that the details of their complaint and the fact of the complaint could be disclosed, it may discourage persons from making the complaint.’

56 As mentioned above, this is not the test for the purpose of a clause 6 exemption. However, for the reasons set out below, I find that the document is exempt under this clause.

57 In her submissions, MJ pointed out that on page 5 of the Department’s schedule, the names of the officers who created the document are identified. Yet on page 7 of the schedule they have not been identified. It is the Department’s contention that this does not alter the character of the information in the document and it is this that the Tribunal must consider when determining whether it falls within the clause 6 exemption. In my opinion his is the correct approach.

58 The document is described as a ‘DET suggestion or complaint form’. It is a pro-forma DET form with handwritten information on it. It is dated ‘8.6.06’. The pro-forma form states that the information provided in the form ‘is voluntary’. There is however, reference as to which agency(s) the Department may decide to pass the information to. The handwritten information on the form primarily concerns the personal affairs of the authors of the document and I am satisfied from the content of the handwriting on this form and the purpose for which it was made that a disclosure of this information would involve an unreasonable disclosure of that information. Accordingly, I am satisfied that the document is an exempt document.

59 Finally, I find that on the basis of the information deleted in the remaining documents in this category (i.e. document 426, 430, 433, 434, 436, 437, 680, 1054, 1130, 1304, 1537, 1538, 1539) do not contain information concerning the personal affairs of an employee. In general each deletion contains information relating to the fact that an employee is or will be on leave from his/her normal employment duties on or at a specified date(s). Even if I am wrong, in my opinion this is information the disclosure of which would not involve an unreasonable disclosure of that information.

60 (c) Name of a student attending a school of the Department and who is under the age of 18 and being provided with an ‘Early Intervention Service’ by the Department

Ms Strathis identified the deletions in the following documents including deletions which fall within this class of information:

‘FO1-06-248: 62, 63, 70, 71, 74, 78, 79, 81, 82, 83, 759, 799, 830, 833, 835, 851, 852, 853, 854, 875, 880, 881, 883, 884, 909, 917, 918, 920, 921, 192, 233, 184, 990, 991, 1027, 1028, 1173, 1201, 1207, 1304, 1305, 1336, 137, 138, 1457, 1458, 1462-1464, 1473-1474, 1552, 1650, 1651, 1652, 1658, 1654, 1656, 1657, 1658, 1661, 1669, 1670, 1671, 1672, 1673, 1674, 759’

61 In most instances the deletion is a deletion of the surname of the student. The Christian name of the student has however been disclosed in most cases. How this can be consistent with the general finding that the name of a child is personal information and that a disclosure of this information would involve an unreasonable disclosure is difficult to understand.

62 It is noted that MJ in her written submissions stressed that she did not at any time seek the name of the children that are named in the documents. This information she pointed out was private. Her concerns are of course correct, but when invited by the Tribunal to identify those documents for which access was pressed she did not exclude those that clearly contained deletions of this nature.

63 I have examined each of the abovementioned documents listed by Ms Stathis as falling within this category. Many documents were those MJ had created or were addressed to her (i.e. emails responding to emails that she had sent). MJ said that as she had a copy of these documents she was fully aware of their contents, including the deletions. It was the Department’s position that notwithstanding this the obligations on the Department under the FOI Act were such that it was required to deal with her FOI requests on the basis that she was like any other member of the public seeking access under that Act and that the Department was to make its decision on the basis of the competing public interests as prescribed in the Act. In my opinion, this approach of the Department was correct.

64 In my opinion, with the exception of the documents identified below, the deletions in the documents identified by Ms Stathis as falling within category (c), contain information concerning the personal affairs of students (i.e. the names of the students), the disclosure of which would involve an unreasonable disclosure.

65 The exceptions referred to in the above paragraph are as follows:

document 1304:

the deletion in this document does not contain any information concerning a particular student. It is information that I have found not to be exempt under clause 6 of Schedule 1 of the FOI Act As: see paragraph [59] above.

document 1305:

the deletion in this document does not contain any information concerning a particular student. It is information of a kind that I have found not to be exempt under clause 6 of Schedule 1 of the FOI Act As: see paragraph [59] above.

document 1473:

the deletions in this document do not contain any information concerning a particular student. The deletion under the words ‘cases under management’ I have found to fall within category (b) above. The remaining deletion I find not to be exempt.

document 1670:

see paragraph [53] above.

document 1673:

the deleted first sentence in this document does not contain any information about a student. It concerns the position being held by an employee of the Department and for the reasons set out above I find it is not exempt. I am however satisfied that the remaining deletions are exempt.

document 1674:

this document consists of 2 emails. Both emails have deletions made to them. The large deletion that has been made to the second email contains the name of a student. However, it is unclear as to why the deletion has been so comprehensive. In my opinion, there is information in this deletion that could be disclosed without disclosing the exempt personal information of the student (see section 25(4) of the FOI Act).

Documents for which the clause 10 exemption (legal professional privilege) has been claimed

Relevant law and legal principles

66 Clause 10(1) of Schedule 1 of the FOI Act provides that 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.

67 It is not disputed that legal professional privilege is a common law right in that it 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’: 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; see also Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49.

68 In Howell v Macquarie University [2008] NSWCA 26 at [48] Campbell JA said the clause 10 exemption, ‘should be construed without any prior inclination to construe it narrowly, nor any prior inclination to construe it broadly’. At [54], His Honour went on to explain how the Tribunal was to assess the evidence where such an exemption is claimed by an agency:

‘The task of the Tribunal, in reviewing a claim of legal professional privilege made by an agency, is to make up its own mind, on the basis of such information as it has available to it, about whether the matter contained in a document has the characteristics that would make it privileged from production in legal proceedings on the ground of legal professional privilege.’

69 Confidential communications between the requisite parties and made for the dominant purpose of legal advice is commonly referred to as advice privilege and communications of this type made for the dominant purpose to aid in the conduct of litigation (including anticipated litigation) is commonly referred to as litigation privilege. This distinction is also reflected in the provisions of the Evidence Act 1995: see sections 118 and 119. In this application there is evidence of legal proceedings pending being on foot from 22 August 206 to 25 September 2007. These were the proceedings initiated by MJ (‘the pending litigation’).

70 Not all communication between a client and a lawyer is privileged. In order to attract the privilege it must meet the test set out by the High Court in Daniels (supra) and Esso (supra).

71 In Trade Practices Commission v Sterling (1979) 36 FLR 244 at pp. 245 – 246 Lockhart J provided a summary of circumstances where legal professional privilege will extend to a document. These circumstances (omitting citations) included the following:

‘(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them.

(b) …

(c) …

(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf.

(e) …’

72 Where the communication is from an in-house lawyer of a government agency to an officer within the agency, or an officer of an agent of the agency, the privilege will still attach to the communication where it can be shown that the communication was confidential and it came into existence for the dominant purpose to provide the agency with legal advice or for the purpose of litigation involving the agency: see Waterford v Commonwealth (1987) 163 CLR 54 at 62 per Mason and Wilson JJ and Howell(supra).

73 In regard to the first category of privileged documents there is some debate as to the nature of the agent to which this category applies: see Macquarie University v Howell(GD) [2008] NSWADTAP 46 and Orica Australia Pty Ltd v Limit (No 2) Ltd [2008] VSC 247. In my opinion it is unnecessary to consider this issue as I accept the Department’s submissions that in this application the role of the GIO officers was either as agent for the Department or it was standing in the shoes of the Department.

74 It is also well established that a document prepared by a lawyer, for the purposes of his/her retainer, which addresses policy and administrative matters, does not attract legal professional privilege: see Workcover Authority (NSW)(General Manager) v Law Society of New South Wales (2006) 65 NSWLR 502 at [88] & [91].

75 Any privilege that does attach to a confidential communication is that of the client and it also well accepted that the client can expressly or by implication waive that privilege: see Osland v Secretary to the Department of Justice [2008] HCA 37 at [45] and Mann v Carnell (1999) 201 CLR 1. In my opinion this is not an issue that arises in this application.

Consideration

76 In her statement of evidence, Ms Stathis identified the following documents as being exempt on the grounds that they contained information matter that would be privileged from production in legal proceedings on the ground of legal professional privilege:

‘FOI-06-248: 1-6, 7-8, 10-11, 12-13, 14, 15-16, 17, 422, 453, 1002, 1003, 423, 20, 452

FOI-07-240: 721-728, 730, 733-734, 741-742, 744, 750-751, 754-755, 762, 764, 770-771, 784-7800, 804-805, 817-822, 833, 842, 331 (exempt in part), 761 (exempt in part), 868 (exempt in part)

77 In its written submissions the Department contended that of the above, document 10-11, 422, 453, 1002-1003, 762 and 784 fell within category (d) as described by Lockhart J in Sterling (supra): see paragraph [71] above. The remaining documents it contended fell within category (a) as described by Lockhart J.

78 Having regard to the contents of the email that is document 762 and the handwritten note that is 784 I am satisfied that they contain a record of a confidential communication in regard to legal advice that was provided by the Department’s external solicitor for the purpose of the pending litigation.

79 In regard to the other documents, for the reasons set out below, I find that the remaining documents listed in paragraph [77] above are not privileged under this category or otherwise.

80 Document 10 and 11 are email communications from Rodney Blume, who is described as Senior Solicitor, Accredited Specialist Personal Injury Law Acting Manager, OH&S Strategy & Litigated Claims of the Department to Emily McGill and a further email from Brian Nowland to Rodney Blume. In her statement of evidence, Ms O’Brien described Emily McGill as being the officer within GIO who dealt with MJ’s workers compensation claim and Mr Nowland as an officer of the Department who was involved in MJ’s return to work and her payroll processes.

81 Having regard to the content of these emails, I am not satisfied that they contain information to which legal professional privilege attaches. As noted above Mr Blume’s role within the Department is not exclusively that of a legal adviser. In the case of these documents (10 and 11) I find that the dominant purpose of these communications was to address matters of a policy and administrative nature.

82 I make a similar finding in regard to document 422, which is a full copy of the abovementioned email from Mr Nowland.

83 Document 453 is a communication between an officer of GIO and the acting legal clerk of the OH & S Directorate of the Department. I find that this communication is not privileged as there is no lawyer/client relationship between the parties to the communication and the communication does not otherwise contain a communication between such parties that is privileged. Nor is there any evidence that the communication came into existence for the dominant purpose of obtaining legal advice or for use in the pending proceedings. The dominant purpose of the communication once again appears to be of an administrative nature.

84 Document 1002-1003 is a letter from Treasury Managed Fund (‘TMF’) to Austrace Pty Ltd, dated 12 May 2005. The Department has not put on any evidence as to the relationship between TMF and the Department or the GIO. As the letter has been written by a GIO officer I assume it is related to GIO in some way. TMF is never the less a third party communicating with yet another third party. Even if I were to assume that TMF and the other third party were agents for the Department, in my opinion the communication is not privileged. There is nothing on the letter to suggest it is a confidential communication or that the dominant purpose of the communication was so as to obtain legal advice or for use in anticipated or pending legal proceedings. This letter was written more than a year before MJ lodged her claim with the Workers Compensation Commission.

85 In regard to the remaining documents that the Department contended were privileged on the basis that they fell within category (a) as described by Lockhart J in Sterling (supra), I find that, with the exception of document 16, 331 and 868 these documents contain information that would be privileged from production in legal proceedings on the ground of legal professional privilege and are therefore exempt under clause 10. The documents (many of which are duplicates of the one document) are primarily communications between the Department’s external legal advisers and officers within the Department or GIO. It is apparent from the content of these documents that they came into existence for the dominant purpose of obtaining or giving legal advice to the Department in regard to the claim MJ had made against the Department in the Worker’s Compensation Commission. I am also satisfied that the circumstance in which the communications came into existence that they were confidential.

86 There are also a few documents, which are between officers of the Department and officers of GIO – these I am satisfied are also privileged as they contain the substance of legal advice that had been given to the Department by its external legal advisers. The same applies to the handwritten note that is document 730 and 784 (i.e. they are copies of the same document).

87 In regard to the exceptions as referred to in paragraph [85] above, I find that these are not exempt for the reasons set out below:

document 16 is the same as document 453 which, for the reasons set out above, I have found not to be privileged (see paragraph [83] above),
document 331 and 868 are the same series of emails between the officers of GIO and officers of the Department, including the acting legal clerk of OH&S Directorate of the Department. Exemption has only been claimed in respect to the actual message in the email from the acting legal clerk of OH&S Directorate to officers of the GIO. As is apparent from what has been disclosed the deleted material contains an opinion of the author of the email (i.e. the acting legal clerk). This person is not a lawyer, nor is there any evidence that the person for whom the information had been requested was a lawyer. Therefore it is not a communication that would attract privilege.

Summary conclusion of findings in regard to exempt documents

88 In summary, I find that the Department has discharged its onus and established that the deletions in the following documents are exempt on the grounds that they contain information falling within clause 6 of Schedule 1 of the FOI Act:

FOI–06–248: 2, 3, 18, 62, 63, 70, 71, 74, 78, 79, 81, 82, 83, 137, 138, 184, 192, 233, 397, 410 (with the exception of the deletion in the first email), 407 (with the exception of the deletion in the second email), 412, 759, 799, 830, 833, 835, 851, 852, 853, 854, 875, 880, 881, 883, 884, 909, 917, 918, 920, 921 937, 938, 940, 946, 990, 991, 993, 1027, 1028, 1047, 1173, 1196, 1201, 1207, 1336, 1457, 1458, 1462-1464, 1473 (only the deletion under the words ‘cases under management’) -1474, 1495, 1552, 1650, 1651, 1652, 1658, 1654, 1656, 1657, 1658, 1661, 1669, 1670 (with the exception of the body of the message in the first email), 1671, 1672, 1673 (with the exception of the first deleted sentence), and 1674

89 In summary, I find the Department has discharged its onus and established that the deletions in the following documents are exempt on the grounds that they contain information falling within clause 10 of Schedule 1 of the FOI Act:

‘FOI-06-248: 1-6, 7-8, 12-13, 14, 15, 17, 422, 20, 452

FOI-07-240: 721-728, 730, 733-734, 741-742, 744, 750-751, 754-755, 762, 764, 770-771, 784-7800, 804-805, 817-822, 833, 842, 761

90 In summary, I find that the following documents are not exempt:

FOI-06-248: 10-11, 16, 407 (in regard the deletion in the second email only), 410 (in regard the deletion in the first email only), 422, 426, 430, 432, 433, 434, 436, 437, 453, 680, 1002, 1003, 1054, 1130, 1304, 1305, 1473 (the deletion under the words ‘cases under management’), 1537, 1538, 1539, 1670 (in regard to the deletion of the body of the message in the first email), 1673 (the first deleted sentence).

FOI-07-248: 331, 868

91 No findings have been made in regard to document 19 and 1047, a copy of which has not been included in the folder of documents provided by the Department on a confidential basis.

92 In regard to the deletion in the second email in document 1674 (see paragraph 64), I find that the deletion is more comprehensive than it needed to be.

Is the decision of the Department the correct and preferred decision?

93 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 discretion arises by reason of section 25(1) of the FOI Act which confers a discretion on an agency to provide access to a document notwithstanding that the document is an exempt document. The discretion should of course be exercised in accordance with the objectives of the FOI Act which has public interest considerations at its core.

94 In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 the President noted that there should be strong grounds justifying the exercise of the override 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 as follows:

whether the exempt matter was, by other means, in the public domain,

whether the circumstances that have made the exempt matters sensitive at the time it was refused remain current or significant,
the nature of the Government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity,

the public interest in an informal debate on issues of significance to the community,

whether there were adverse consequences for the proper administration of government, and their extent,

whether any adverse consequence is remote or innocuous

95 I have considered the abovementioned factors in regard to the exemptions claimed by the Department and which I have found to have been established. In my opinion, the correct and preferred decision is to refuse MJ access to those documents or parts of documents that have been found to be exempt. There is no evidence that this information is otherwise in the public domain. The information in question is either personal information about a person other that MJ or it is privileged. The former is information of a sensitive nature which the people concerned are unlikely to agree to be disclosed and the latter is information over which the Department has a substantive right to protect from disclosure and there is no other material before the Tribunal which would justify granting access to this exempt material or information.

96 In light of the history of this matter there may be documents, including document 10 and 1047, for which access has been refused and which are not covered by these reasons for decision. Accordingly it is appropriate that the parties be given an opportunity to draw these to the Tribunal’s attention before the matter is finalised. Orders have however been made in regard to those documents referred to in this decision.

Orders

1 The decision of the Department in regard to the documents referred to in paragraph 88 and 89 of these reasons for decision is affirmed

2The decision of the Department in regard to the documents referred to in paragraph 90 in these reasons for decision is set aside and in substitution thereof a decision that MJ be granted access to those documents (in whole or part) and in accordance with the Tribunal’s findings.

3 The decision of the Department in regard to document 1674 is set aside and remitted for further consideration in accordance with paragraph 65 of these reasons for decision.

4 Within 21 days of the publishing of these reasons for decision the parties to file and serve a schedule of documents not dealt with in these reasons for decision and which were the subject of the internal review determination of Ms Stathis.

Amendment:

Applicant name anonymised to MJ 18/3/09.