Hawke v WorkCover Authority of New South Wales
[2009] NSWADT 62
•25 March 2009
CITATION: Hawke v WorkCover Authority of New South Wales [2009] NSWADT 62 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Dominic Hawke
WorkCover Authority of New South WalesFILE NUMBER: 083319 HEARING DATES: 11 March 2009 SUBMISSIONS CLOSED: 11 March 2009
DATE OF DECISION:
25 March 2009BEFORE: Handley R - Deputy President CATCHWORDS: Access to documents – legal professional privilege LEGISLATION CITED: Freedom of Information Act 1989
Administrative Decisions Tribunal Act 1997CASES CITED: Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445
Waterford v Commonwealth (1987) 163 CLR 54
Cianfrano v Director General, Premier’s Department [2007] NSWADT 216
General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84
Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140
Saggers v Director General, Attorney General’s Department [2005] NSWADT 193
Trade Practices Commission v Sterling (1979) 36 FLR 244
Howell v Macquarie University [2008] NSWCA 26
Law Society of NSW v General Manager, WorkCover Authority of NSW [2004] NSWADTAP 40
University of NSW v McGuirk [2006] NSWSC 1362
University of NSW v McGuirk (No 2) [2008] NSWADTAP 8REPRESENTATION: APPLICANT
RESPONDENT
In person
D Hall, solicitorORDERS: The Tribunal:(1) varies the decision under review in respect of (i) document 3, (ii) document 36, comprising two emails and the letter dated 16 July 2007, subject to the deletion of one sentence on p 2, and (iii) the email included in document 72 (excluding the exempt attachment), which must be released to Mr Hawke within 28 days of this decision, and
(2) otherwise affirms the decision.
1 This matter involves an application by Dominic Hawke for the review of a decision of the WorkCover Authority of NSW (‘WorkCover’) made under the Freedom of Information Act 1989 (‘the FOI Act’) to refuse access to the whole or part of documents sought by Mr Hawke on the ground that the documents were either wholly or partially exempt on the ground of legal professional privilege.
Background
2 On 21 December 2007, Mr Hawke requested access to the following documents:
“All information pertaining to Dominic Hawke, including, but not limited to incoming & outgoing letters/emails to Dominic Hawke and all other third parties eg solicitors. Plus internal letters/emails/notes/reviews.”
3 On 22 January 2008, WorkCover advised that the request was too extensive and, on 8 February 2008, Mr Hawke refined his request, limiting it to documents from 2002 onwards and excluding documents regarding the Premium Discount Advisors Scheme. On 29 February 2008, WorkCover responded that his application was still too extensive and suggesting that Mr Hawke further refine the scope of his request. On 8 March 2008, Mr Hawke stated that he did not want to refine his request further. However, following further discussion with WorkCover, Mr Hawke agreed to exclude from his request the standard documents exchanged between WorkCover and accredited trainers. On 21 May 2008, WorkCover requested payment of an advance deposit of $210, which Mr Hawke paid.
4 On 10 July 2008, WorkCover decided to release certain documents but claimed other documents were either wholly or partially exempt on the ground that they were internal working documents (cl 9 of Schedule 1 of the FOI Act) or documents subject to legal professional privilege (cl 10). On 7 August 2008, Mr Hawke sought an internal review of this decision. On 24 September 2008, WorkCover confirmed its decision.
5 On 23 October 2008, the Tribunal received Mr Hawke’s application for a review of WorkCover’s decision. On 2 December 2008, I conducted a Planning Meeting with the parties and made directions for the exchange of documents. WorkCover subsequently reviewed its decision and decided to release further documents to Mr Hawke in respect of which it had previously claimed an exemption on the ground that they were internal working documents (cl 9), and later also released additional documents in respect of which an exemption under cl 10 had been claimed. WorkCover maintains that the remaining documents are either wholly or partially exempt pursuant to the cl 10 legal professional privilege exemption.
The Relevant Legislation
6 The objects of the FOI Act are stated in section 5, as follows:
5 Objects
(1) The objects of this Act are to extend, as far as possible, the rights of the public:
(2) The means by which it is intended that these objects are to be achieved are:
(a) to obtain access to information held by the Government, and
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.
(3) It is the intention of Parliament:
(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and
(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and
(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.
(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.
(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and
(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.
7 Pursuant to section 16(1) of the FOI Act, “[a] person has a legally enforceable right to be given access to an agency’s documents”. However, section 25(1)(a) states that an agency “may refuse access to a document” if it is an “exempt document”, the onus being on the agency to establish this (s 61). Section 25(4) provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and it appears to the agency that the FOI applicant would wish to be given access to such a copy.
8 Section 6(1) defines ‘agency’ as including a ‘public authority’, defined in s 7(1) so as to include WorkCover, and ‘exempt document’ as including a document referred to in any one or more of the provisions of Schedule 1. The exempt documents referred to in Schedule 1 include, relevantly, those in cl 10:
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.
(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency’s policy document.
Evidence
9 WorkCover has provided the Tribunal with copies of all the documents in respect of which it claims an exemption under cl 10.
WorkCover’s Submissions
10 Mr Hall, for WorkCover, invited the Tribunal to inspect the documents claimed to be exempt under cl 10. He submitted that it is evident from the face of the documents that they were created for the dominant purpose of obtaining or giving legal advice – in this instance, in relation to the cancellation of Mr Hawke’s accreditation. The documents include legal advice prepared by lawyers employed by WorkCover, and correspondence between those lawyers and their client (WorkCover) and with lawyers employed by the Crown Solicitor’s Office (‘CSO’). Mr Hall noted that the documents included letters from Mr Hawke to WorkCover, and agreed to provide copies of these to Mr Hawke, who was uncertain whether he had all relevant copies.
11 Mr Hall referred the Tribunal to the decision in Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 (‘the Telstra case’), where, at [21], the Federal Court said:
“If a communication qualifies for legal professional privilege, the privilege is absolute. It cannot be overriden by some supposedly greater public interest.”
12 He also referred to the decision in Waterford v Commonwealth (1987) 163 CLR 54 (‘Waterford’), where the High Court confirmed that legal professional privilege applies so as to include legal officers in government employment, acting in a professional relationship, who provide independent legal advice. Mr Hall said that lawyers employed in the ‘Legal Group’ of WorkCover operate as part of a distinct and independent unit, located away from WorkCover’s head office in Gosford and not subject to direction. All WorkCover’s solicitors have current practising certificates.
13 In relation to the Tribunal’s discretion to order the release of documents notwithstanding that an exemption is found to apply in respect of those documents, Mr Hall referred to the decision in Cianfrano v Director General, Premier’s Department [2007] NSWADT 216 (‘Cianfrano’), where, at [24], the President of the Tribunal, O’Connor DCJ, set out the principles guiding the exercise of the discretion. Mr Hall submitted that in the present case, there are no strong grounds justifying the overriding of the cl 10 exemption.
14 In relation to a question from Mr Hawke as to the adequacy of the search for documents conducted by WorkCover, Mr Hall said that exhaustive searches have been undertaken for the documents sought, and all relevant documents have been identified. Nevertheless, Mr Hall was unable to explain why a notification dated 6 July 2004 from David Barker to Mr Hawke, informing him that WorkCover was proposing cancellation of his accreditation as an assessor, referred to in a report of a review of the WorkCover decision to cancel Mr Hawke’s accreditation as an ‘OHS certificate assessor’ dated 6 December 2004, had not been located in the courses of the searches.
Mr Hawke’s Submissions
15 Mr Hawke said he is not satisfied that WorkCover has provided all the relevant documents. In particular, WorkCover has not provided reports or correspondence from David Barker who undertook the audit of Mr Hawke’s work as an assessor. These documents formed the basis of Mr Barker’s decision to cancel Mr Hawke’s accreditation.
16 Mr Hawke referred to the relevant provisions of the law including the case law in relation to the exercise of the Tribunal’s residual discretion. He submitted that the factors identified by the President in Cianfrano are applicable here: the documents in question date from 2004, nearly five years ago; these concern Mr Hawke’s personal affairs; there is a public interest in the documents being released; and there are no relevant adverse consequences.
17 Mr Hawke noted that in Waterford, the High Court held that in the case of an employed lawyer, the lawyer must have the necessary degree of independence and not be subject to direction by a person who does not have a practising certificate. Mr Hawke suggested that in the case of some of the documents in issue, the requirement for independence is not satisfied.
18 Mr Hawke submitted that from WorkCover’s description of the documents, it appears that not all the documents involved lawyers and, even if the dominant purpose test is satisfied, one of the exceptions, such as the public interest in having access to the information, may apply. In General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 (‘the WorkCover Authority case’), McColl JA, with whom Handley and Hodgson JJA agreed, said that there is a public interest in the public having access to government information. Government agencies must disclose ‘working documents’ after their significance wanes with time and, to justify an exemption from disclosure, must prove tangible harm will occur if documents are disclosed.
Discussion
19 Where an agency determines to deny access to documents sought on the ground that the documents are ‘exempt documents’, a person aggrieved by the determination may apply to the Tribunal for a review: ss 24 and 53(1) of the FOI Act. As stated above, where a person applies for such a review, the burden of proof lies on the Department to justify its determination to claim an exemption in respect of the documents in issue: s 61. The Tribunal’s jurisdiction under s 53 does not, however, extend to a review of the adequacy of searches undertaken by an agency in response to a request for access to documents. Where a person alleges the insufficiency of an agency’s search, the most appropriate channel for review is an application to the NSW Ombudsman pursuant to s 52 of the FOI Act: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140.
Is WorkCover able to justify its decision to rely on the cl 10 exemption?
20 The NSW Court of Appeal considered the application of cl 10 in the WorkCover Authority case. McColl JA, with whom Handley and Hodgson JJA agreed, explained:
“67. Legal professional privilege is a rule of substantive law which enables a person to resist the giving of information or the production of documents to a third party which would reveal confidential communications between the person and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings: Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (at [9]) per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Esso Australia Resources Ltd v Commissioner of Taxation .
68. The rationale of legal professional privilege is “that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline”: Grant v Downs (at 685); Attorney-General (NT) v Maurice (at 487); see also Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 per Mason J (at 74), per Deane J (at 114), per Dawson J (at 128).
69. Waterford v The Commonwealth of Australia confirmed that legal professional privilege extends to confidential professional communications between government agencies and their legal representatives if made with the requisite purpose ...
73. Once it is established that the legal practitioner was acting in the requisite capacity, a confidential communication will attract privilege even if it contains extraneous matter as long as it was prepared for the dominant purpose of giving legal advice.”
21 That case, like the claim made in the current matter, concerned the first head of legal professional privilege, legal advice privilege, the other head being litigation privilege. McColl JA stated, at [76]: “Legal advice privilege attaches to confidential communications between lawyers and their clients seeking or giving legal advice.” (See also Saggers v Director General, Attorney General’s Department [2005] NSWADT 193, at [21], where the President of the Tribunal, O’Connor DCJ, relied on Lockhart J’s “well-known statement describing the various types of documents that can be the subject of a claim for legal professional privilege” in Trade Practices Commission v Sterling (1979) 36 FLR 244, at 245-6.)
22 What constitutes legal advice was considered by the Appeal Panel in Law Society of NSW v General Manager, WorkCover Authority of NSW [2004] NSWADTAP 40, at [39 - 42], the decision approved by the NSW Court of Appeal in the WorkCover Authority case. The Appeal Panel stated:
“39 ... For advice to be characterised as ‘legal advice’ it must, in our view, be of a kind which involves the application of technical legal skills (or ‘legal principles’ to use the words of Preuss PM in Re Cole and the Department of Justice (1994) 8 VAR 132 at 133); and it must be provided in a context that involves the ‘administration of justice’ as distinct from other types of administration.
40 As noted in the passage from Dawson J [in Waterford at 96-97], the High Court has drawn a distinction between the matters connected with the administration of justice and matters connected with the conduct of executive government. Governments in their executive and policy making functions will often seek advice from a range of sources including persons inside or outside government administration qualified as lawyers. The advice they render may or may not be ‘legal advice’. See further the examples where advice has been found not to fall on the ‘legal advice’ side of the line cited in Re Gill and Brisbane City Council [2001] QICmr 4 at [35].
41 There is little precise guidance in the case-law as to what characteristics make advice ‘legal’ advice as distinct from professional advice of some other type.
42 The kind of technical skills we have in mind as being characteristic of the giving of ‘legal advice’ are those involved in the drafting or interpretation of a provision in a public instrument such as a bill, ordinance or statute or of a private instrument such as a contract; those that might be involved in giving advice as to how the present law might impact on conduct that has occurred or is contemplated; or those that might be involved in advising on how the law should be amended to enable a proposed course of conduct to be lawfully pursued.”
23 That case involved a costs consultant. The Appeal Panel found, at [45]:
“The matters she was called on to address did not, we consider, in any significant way involve the application of technical legal skills but were of a policy or administrative nature, as submitted by the Law Society.”
24 I note that in Howell v Macquarie University [2008] NSWCA 26 (‘Howell’), at [48], the Court of Appeal (Campbell JA, with whom Spigelman CJ and Bell JA agreed) endorsed the comments made by McColl JA in the WorkCover Authority case, at [150], disapproving of a ‘leaning approach’ – that is leaning towards a narrow interpretation of exemptions in the FOI Act, and, at [151], stating that the right to public access to documents held by the Government, “is subject to such restrictions as are reasonably necessary for the proper administration of the Government: s 5(2)(a) and (b). Determining whether documents should be disclosed involves balancing those two matters”. Campbell JA said the cl 10 exemption “should be construed without any prior inclination to construe it narrowly, nor any prior inclination to pursue it broadly”.
25 I have inspected the documents in respect of which WorkCover claims an exemption under cl 10, listed below. My comments appear in bold type beneath the italicised description of each numbered document provided by WorkCover and its claim to exemption.
(1) Documents (listed by number) that WorkCover maintains should remain exempt under Clause 10:
3. Letter dated 29 April 2008 from Johanna Edwards (Solicitor, CSO, representing WorkCover) to Wayne Cooper (Acting Principal Legal Officer, Legal Group, WorkCover) reporting on Directions Hearing in the ADT for Applicant’s matter. Claim: fully exempt.
This is a report on a Directions Hearing before Judge O’Connor on 29 April 2008, which, in my view, was provided for the dominant purpose of providing legal advice. It is, therefore, exempt under cl 10.
7. Internal email dated 15 April 08 from Wayne Cooper (Acting Principal Legal Officer, Legal Group) to Meagan McCool (Acting Coordinator, Strategic Licensing Assessment & Management Unit, WorkCover) concerning Mr Hawke’s application in the ADT. Claim: fully exempt.
This email is a response by Mr Cooper to a prior email dated 15 April 2008 from Ms McCool (to which it appears Mr Hawke has been granted access) requesting “advice on how to proceed with this matter”. I am satisfied Mr Cooper provides legal advice in the email, which is exempt under cl 10.
16. Email dated 9 January 2008 from Anthony Quinn (Assistant-Manager, Legislation & Advisings Branch, Legal Group, WorkCover) to Michael Carroll (Manager, Licensing and Client Relations Unit, WorkCover) providing legal advice regarding the Applicant’s matter in the ADT. Claim: partially exempt.
I am satisfied that Mr Quinn provides legal advice in this email, and that part of the email is, therefore, exempt under cl 10.
19. Email dated 17 December 2007 from Anthony Quinn (Assistant-Manager, Legislation & Advisings Branch, Legal Group, WorkCover) to Michael Carroll (Manager, Licensing and Client Relations Unit, WorkCover) providing legal advice regarding three of the Applicant’s matters in the ADT. Claim: fully exempt.
Again, I am satisfied that Mr Quinn provides legal advice in this email, which is exempt under cl 10.
24. Email dated 23 October 2007 from Michael Carroll (Manager, Licensing and Client Relations Unit, WorkCover) to Anthony Quinn (Assistant-Manager, Legislation & Advisings Branch, Legal Group, WorkCover) and Meagan McCool (Managing Coordinator, OHS Division, WorkCover) communicating issues regarding Applicant’s matter in the ADT. Claim: partially exempt.
I am satisfied that the information in respect of which an exemption is claimed was provided by Mr Carroll to Mr Quinn in relation to legal advice provided by Mr Quinn, and that the email is therefore partially exempt under cl 10.
26. Three emails dated 25 September 2007: (1) from Chris Fesel (Solicitor representing WorkCover, CSO) to Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) requesting instructions regarding Applicant’s matter in the ADT; (2) from Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) to Meagan McCool (Managing Coordinator, OHS Division, WorkCover) and Dorothea Betts (Director, Operational and Tactical Support Group, WorkCover) communicating recommendations regarding Applicant’s matter in the ADT; (3) from Meagan McCool (Managing Coordinator, OHS Division, WorkCover) to Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) relating to recommendations regarding Applicant’s matter in the ADT. Claim: fully exempt.
In my view, the second and third emails include legal advice provided by lawyers to WorkCover. The first email (the last in time) is a response by the client to the advice. I am satisfied that all three emails are exempt under cl 10.
27. Two emails: (1) dated 24 September 2007 from Chris Fesel (Solicitor representing WorkCover, CSO) to Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) communicating issues regarding Applicant’s matter in the ADT; (2) dated 25 September 2007 from Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) to Meagan McCool (Managing Coordinator, OHS Division, WorkCover) forwarding the above email. Claim: fully exempt.
In my view, both emails include legal advice provided by lawyers to WorkCover, and I am satisfied that both emails are exempt under cl 10.
29. Email dated 21 September 2007 from Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) to Meagan McCool (Managing Coordinator, OHS Division, WorkCover) providing legal advice regarding the Applicant’s ADT matter. Claim: partially exempt.
This email contains legal advice and is partially exempt under cl 10.
36. Two emails: (1) dated 17 July 2007 from Chris Fesel (Solicitor representing WorkCover, CSO) to Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) reporting on interlocutory hearing for Applicant’s ADT matter (matter no. 073161); (2) dated 18 July 2007 from Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) to Meagan McCool (Managing Coordinator, OHS Division, WorkCover) forwarding above email. Claim: fully exempt.
The first email attaches a letter dated 16 July 2007 from Mr Fesel to Ms Gallacher on an interlocutory hearing before Montgomery JM on 12 July 2007. This is a report that, in my view, was provided for the dominant purpose of providing legal advice. The letter is, therefore, exempt under cl 10. However, I am not satisfied that either of the two emails, which are very brief, contains any legal advice: one comprises one sentence and the other two sentences. They are not exempt under cl 10 and should be released to Mr Hawke.
39. Three internal emails dated 27 July 2007 between Meagan McCool and Clarissa Gallacher, with an attached draft letter. Claim: fully exempt.
I am satisfied that the email correspondence and draft letter involve the giving of legal advice by a lawyer to WorkCover and are exempt under cl 10.
40. Two emails: (1) dated 20 July 2007 from Meagan McCool (Managing Coordinator, OHS Division, WorkCover) to Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) requesting legal advice regarding Applicant’s ADT matter (matter no. 073161); (2) dated 25 July 2007 from Meagan McCool (Managing Coordinator, OHS Division, WorkCover) to Michael Carroll (Manager, Licensing and Client Relations Unit, WorkCover) and Dorothea Betts (Director, Operational and Tactical Support Group, WorkCover) discussing issues relating to Applicant’s ADT matter (matter no. 073161). Claim: fully exempt.
I am satisfied that the first email dated 20 July 2007 is a letter from WorkCover to a lawyer requesting legal advice and is exempt under cl 10. The second email refers to confidential communications involving the giving of legal advice to WorkCover by its lawyer and is also exempt under cl 10.
79. Legal advice dated 4 December 2006 from Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) to Michael Carroll (Manager, Licensing and Client Relations Unit, WorkCover) regarding requirements for notices of cancellation of trainer accreditation, requested in relation to proposed cancellation of Applicant’s accreditation to deliver OHS induction and consultation training. Claim: fully exempt.
This legal advice is exempt under cl 10.
80. Request for legal advice dated 24 November 2006 from Robert James (Project Officer, Strategic Interventions Group, WorkCover) to Legislation & Advisings Branch (WorkCover) regarding wording of letter notifying Applicant of the cancellation of his accreditation to deliver OHS induction and consultation training. Claim: fully exempt.
This request for legal advice is exempt under cl 10.
91. Legal advice dated 27 June 2006 from Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) to Robert James (Project officer, Strategic Licensing Assessment and Management, WorkCover) providing advice as to basis of cancellation of Applicant’s trainer accreditation (including one-page email from Catherine Morgan (Manager, Legislation & Advisings Branch) addressed to Robert James and Elizabeth Govier (Acting Coordinator, Strategic Licensing Assessment and Management Unit) attaching advice with approval. Claim: fully exempt.
There are three memoranda from Ms Gallacher (two dated 27 June 1006 and one dated 11 May 2006) providing legal advice to WorkCover. All are exempt under cl 10.
101. Five emails: (1) dated 7 April 2006 from Elizabeth Govier (Acting Coordinator, Strategic Licensing Assessment and Management Unit) to Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) requesting legal advice regarding letter of cancellation to be sent to Applicant in relation to his trainer accreditation; (2) dated 5 May 2006 from Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) to Elizabeth Govier (Acting Coordinator, Strategic Licensing Assessment and Management Unit) regarding request for legal advice regarding letter of cancellation to be sent to Applicant in relation to his trainer accreditation; (3) dated 8 May 2006 from Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) to Elizabeth Govier (Acting Coordinator, Strategic Licensing Assessment and Management Unit) regarding request for legal advice regarding letter of cancellation to be sent to Applicant in relation to his trainer accreditation; (4) dated 8 May 2006 from Elizabeth Govier (Acting Coordinator, Strategic Licensing Assessment and Management Unit) to Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) requesting legal advice regarding letter of cancellation to be sent to Applicant in relation to his trainer accreditation; (5) dated 8 May 2006 from Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) to Elizabeth Govier (Acting Coordinator, Strategic Licensing Assessment and Management Unit) regarding request for legal advice regarding letter of cancellation to be sent to Applicant in relation to his trainer accreditation. Claim: partially exempt – these emails are in a chain of other internal communications that are not legally privileged.
I am satisfied that these five emails, being part of a chain of emails, are all concerned with the giving of legal advice from a lawyer to WorkCover, and are exempt under cl 10.
102. Fax dated 11 May 2006 from Robert James (Project officer, Strategic Licensing Assessment and Management, WorkCover) to Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) in relation to request for legal advice regarding cancellation of Applicant’s trainer accreditation. Claim: fully exempt.
This fax provides further information to the lawyer, who has been asked by WorkCover to provide legal advice. I am satisfied that this document is exempt under cl 10.
103. Email dated 8 March 2006 from Robert James (Project officer, Strategic Licensing Assessment and Management, WorkCover) to Elizabeth Govier (Acting Coordinator, Strategic Licensing Assessment and Management Unit) regarding request for legal advice to cancel Applicant’s trainer accreditation. Claim: fully exempt.
This internal WorkCover email quotes legal advice received from Ms Gallacher (Legal Officer, WorkCover) and, in my view, is exempt under cl 10.
104. Legal Advice dated 5 December 2005 from Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) to Dorothea Betts (Director, Strategic Interventions Group) regarding Applicant’s application for accreditation to conduct assessments for explosive powered tools and formwork and the accreditation of Applicant’s company (MAP Training) as a registered training organisation. Claim: fully exempt.
This is an 11 page memorandum providing legal advice to WorkCover, which is exempt under cl 10.
105. Request for legal advice dated 22 November 2005 from Sue Johnson (Project Officer, Strategic Licensing and Management, WorkCover) to Legislation & Advisings Branch (WorkCover) requesting legal advice in relation to Applicant’s application for accreditation to conduct assessments for explosive powered tools and formwork and the accreditation of Applicant’s company (MAP Training) as a registered training organisation. Claim: fully exempt.
I am satisfied that this request for legal advice is exempt under cl 10.
(2) Documents (listed by number) that WorkCover claims should be exempt under Clause 10 in respect of which an exemption was originally claimed under Clause 9:
30. Two emails dated 14 September 2007: (1) from Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) to Meagan McCool (Managing Coordinator, OHS Division, WorkCover) providing legal advice in relation to Applicant’s matter in the ADT; (2) from Meagan McCool (Managing Coordinator, OHS Division, WorkCover) to Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) requesting legal advice in relation to Applicant’s matter in the ADT. Claim: partially exempt – these emails are in a chain of other internal communications that are not legally privileged.
I am satisfied that the emails, being part of a chain of emails, comprise a request for legal advice and a response providing legal advice, which are exempt under cl 10.
38. Email dated 30 July 2007 from Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) to Meagan McCool (Managing Coordinator, OHS Division, WorkCover) providing legal advice regarding Applicant’s application for reaccreditation as a trainer. Claim: fully exempt.
I am satisfied that the email and draft letter attached to the email contain legal advice from a lawyer to WorkCover and are exempt under cl 10.
72. Email dated 16 January 2007 from Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover) to Gary Fish, providing legal advice regarding trainer cancellation letter to be sent to Applicant. Claim: fully exempt.
No legal advice is contained in the text of the email, which comprises six words only. Attached to the email is the draft letter dated January 2007, listed as document 73, below. Since the email itself does not contain legal advice, it is not exempt under cl 10 and should be released to Mr Hawke.
73. Draft trainer cancellation letter dated January 2007 addressed to the Applicant with mark-ups by Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover). Claim: fully exempt.
This draft letter does from a lawyer to WorkCover does provide legal advice and is exempt under cl 10.
100. Two documents: (1) Email dated 16 May 2006 from Catherine Morgan (Manager, Legislation & Advisings Branch, WorkCover) to Dorothea Betts (Director, Operational and Tactical Support Group, WorkCover) and Elizabeth Govier (Acting Coordinator, Strategic Licensing Assessment and Management Unit) providing legal advice regarding Draft trainer cancellation letter addressed to the Applicant; (2) Draft trainer cancellation letter dated May 2006 addressed to the Applicant with mark-ups by Clarissa Gallacher (Legal Officer, Legislation & Advisings Branch, WorkCover). Claim: partially exempt – these emails are in a chain of other internal communications that are not legally privileged.
The email, being part of a chain of emails, refers to the legal advice, comprising the attached draft letter, being approved. In my view, both the email and draft letter are exempt under cl 10.
26 Having inspected the above documents, I am satisfied that WorkCover has made out its claims to exemption under cl 10 of Schedule 1 in respect of all the documents listed above except for the two emails included in document 36 and the email included in document 72. These three emails should be released to Mr Hawke.
Should the residual discretion be exercised?
27 In University of NSW v McGuirk [2006] NSWSC 1362, at [102], Nicholas J said:
“section 63 ADT Act provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it.”
28 Thus, by virtue of sector 63(2) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) and sector 25(1)(a) of the FOI Act, the Tribunal has a residual discretion to release documents otherwise found to be exempt pursuant to Schedule 1 of the FOI Act, and, in such a case, must consider whether to exercise its discretion to do so.
29 In Cianfrano v Director General, Premier’s Department [2007] NSWADT 216, at [24], O’Connor P summarised the relevant principles:
“the following principles to guide the exercise of the discretion have emerged:
(1) The Tribunal must first ascertain whether the matter is exempt matter.
(2) The Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption.
(3) The question of whether there are strong grounds should take account of the objects of the FOI Act as expressed in section 5.
(4) ...
(5) ...”
30 The President noted that the objects clause of the Act (s 5) now has a greater degree of prominence than previously in Tribunal decisions. He said, at [27]:
“Practical circumstances that might influence the Tribunal to exercise the discretion include:
- whether the exempt matter was, by other means, in the public domain
- whether the circumstances that had made the exempt matter 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 informed 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.”
31 In University of NSW v McGuirk (No 2) [2008] NSWADTAP 8, at [18], the Appeal Panel noted:
“The FOI Act requires discretions be exercised, as far as possible, so as to facilitate the disclosure of information: section 5(3)(b). Consistently with the objects of the FOI Act, and the means by which those objects are to be achieved, it can be assumed that the exemptions were included because parliament considered that they were "reasonably necessary for the proper administration of the Government". In that sense, the balancing exercise between competing public interest considerations has already been undertaken. Nevertheless, a relevant consideration when exercising the discretion is whether there is a reason, particular to the circumstances of the case, for giving access to such documents. That reason needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of Government. In that sense, it may be described as special, overriding or strong: See Department of Premier and Cabinet v Hulls [1999] VSCA 117; Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55.”
32 In relation to the exemption in respect of legal professional privilege, the Appeal Panel commented, at 25:
“By exempting documents subject to legal professional privilege, parliament has decided that, in general, the interests in maintaining legal professional privilege should prevail over the competing interest of open and accountable government. Although the public interest in maintaining legal professional privilege is very strong, documents the subject of legal professional privilege may be disclosed where the particular circumstances of the case justify disclosure. However, the reason for disclosing exempt documents needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of Government.
33 Having examined the relevant documents and having found most of these to be exempt, I am not satisfied, subject to two exceptions, that there are strong grounds justifying the overriding of the cl 10 exemption. The proceedings involving Mr Hawke’s accreditation as a WorkCover assessor, to which the documents sought by Mr Hawke relate, are not yet resolved. Moreover, I am not satisfied that there is such a sufficiently strong public interest in disclosure to displace the assumption that the exemption is necessary for the proper administration of government. I am not, therefore, persuaded that I should exercise the residual discretion to release the documents I have found to be exempt under cl 10, subject to the two exceptions mentioned below.
34 The two exceptions where, in my opinion, there are strong grounds justifying the overriding of the cl 10 exemption are: (1) document 3, a letter dated 29 April 2008 from Johanna Edwards (solicitor, CSO, representing WorkCover) to Wayne Cooper (Acting Principal Legal Officer, Legal Group, WorkCover); and (2) the letter dated 16 July 2007 from Chris Fesel (solicitor, CSO, representing WorkCover) to Clarissa Gallacher (solicitor, WorkCover) attached to an email dated 17 July 2007 and forming part of document 36. Both letters are reports of public hearings in the Tribunal and, subject to one exception, are purely descriptive. In my opinion, they contain information in the public domain, which is not sensitive, the disclosure of which would have no adverse consequences for the proper administration of government. The exception is one sentence on p 2, paragraph 6, lines 3 to 5 of the letter dated 16 July 2007, beginning with the words “It seems” and ending with the word “matter”, which contains legal advice. This sentence should remain exempt from disclosure under cl 10. Thus, document 3 should be released to Mr Hawke in full and the letter dated 16 July 2007 forming part of document 36 should be released to Mr Hawke in part, excepting the sentence on p 2 referred to above.
Decision
The Tribunal:
(1) varies the decision under review in respect of (i) document 3, (ii) document 36, comprising two emails and the letter dated 16 July 2007, subject to the deletion of one sentence on p 2, and (iii) the email included in document 72 (excluding the exempt attachment), which must be released to Mr Hawke within 28 days of this decision, and
(2) otherwise affirms the decision
0
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