Johnston and Australian Postal Corporation
[2005] AATA 34
•17 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 34
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/156
GENERAL ADMINISTRATIVE DIVISION ) Re MALCOLM JOHNSTON Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member Peter M McDermott Date17 January 2005
PlaceBrisbane
Decision The Tribunal decides to:-
(i) Affirm the decision under review;
(ii) Return Documents 1, 2, 6, 7 and 8 to the respondent
(iii) Annexures A to D of the affidavit of Andrius Caprackas sworn on 29 October 2004 (Exhibit 4) remain sealed on the file until any further order.
.….[Sgd]……
PM McDermott
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION - access to documents– whether exemptions apply
Freedom of Information Act 1982 s 3, 11, 59, 61
Safety, Rehabilitation and Compensation Act 1988 s 59, 71
Electronic Frontiers Inc v Australian Broadcasting Authority [2002] AATA 449
Re Schofield and ACT Workcover (2000) 61 ALD 238
Re Ward and Centrelink [2004] AATA 761
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138, 123.
Re Howard and Treasurer, Commonwealth (1985) 3 AAR 169.
Grant v Downs (1976) 135 CLR 674
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122REASONS FOR DECISION
17 January 2005 Senior Member P McDermott 1. This is an application to review decisions made by the respondent under the Freedom of Information Act 1982 (the “Act”). The respondent has identified a number of documents within the scope of the request made by the applicant. The respondent wishes to withhold certain documents and delete material from other documents.
2. The applicant was an employee of the respondent (and its predecessor) from 1975 until 1993 when he took a voluntary redundancy package.
3. On 30 January 2003 Mr Kevin Rudd MP wrote a letter on behalf of the applicant to the Minister for Communications, Information Technology and the Arts. Mr Rudd outlined complaints of the applicant concerning his employment by the respondent, who is one of his constituents. I have no doubt that the applicant has sincere concerns concerning his treatment as an employee with the respondent and its predecessor.
4. With his letter Mr Rudd sent a copy of a submission that the applicant had previously made on 5 July 2002 to the Human Rights and Equal Opportunity Commission (HREOC). The HREOC submission detailed a number of workplace incidents and complaints relating to his employment with the respondent. In that submission the applicant claimed a financial settlement for $400,000. In the summary of the submission the applicant stated: “The monetary amount is conservative compared to a similar common law settlement”.
5. The letter of Mr Rudd was referred to Mr Stephen McMahon, a manager of the respondent, who in his evidence stated that he considered that the letter raised more than a claim for workers’ compensation. He took into consideration that the applicant had previously been a workers’ compensation manager.
6. Mr Stephen McMahon engaged Mr Alexander Downie to conduct an investigation into the facts of the case. He also asked Mr Downie to liaise with Spark Helmore, solicitors, in order to ensure that the respondent’s interests were protected in the “seemingly likely event that the applicant took legal action”.
7. Mr McMahon also gave evidence that on 4 July 2003 he and Mr Downie held a conference with Mr Snell of Sparke Helmore, solicitors. At that conference he received legal advice that is likely to form the basis of any legal action that may be commenced by the applicant in respect of complaints previously made by him.
8. On 8 July 2003 Mr Downie submitted a final report to Mr McMahon in relation to his investigation. This report was sent to the respondent’s legal advisers.
9. At the hearing the applicant advised the tribunal that he has lodged a claim for compensation and required the disclosure of the various documents to assist in his claim for compensation.
10. In these proceedings the reason why the applicant seeks disclosure is not material. This is because under section 11(2) of the Freedom of Information Act 1982, a person’s right of access is not affected by any reasons the person gives for seeking access. It has been pointed out that access to a document must be considered as access to the world at large, that is even if the applicant seeks the document for a worthy purpose: see Electronic Frontiers Inc v Australian Broadcasting Authority [2002] AATA 449 at [96] per Deputy President Forgie.
11. I mention that Comcare has adequate power to obtain documents from Commonwealth authorities that are relevant to a claim made by an employee: see Safety, Rehabilitation and Compensation Act 1988, section 71.
Claimed exempt documents
12. At the hearing the respondent claimed that 5 documents were exempt documents. These documents are referred to in an Amended Table of Exempt Documents (as at 23 November 2004) as being documents 1, 2, 6, 7 and 8. Documents 3, 4 and 5 from that table were, prior to the hearing, released to the applicant. Some documents were released with the consent of certain individuals in accordance with the Freedom of Information Act 1982, section 59A(3).
13. In these proceedings under Part VI of the Freedom of Information Act 1982, the respondent has the onus of establishing that all 5 documents are exempt from disclosure: see section 61. If the respondent does not discharge that onus then the applicant is entitled to have access to those documents.
14.I propose to comment upon these five documents which can be classified as:
(i)Internal e-mail messages;
(ii)Ministerial correspondence;
(iii)Third party report (including accompanying letter.
(i) Internal e-mail messages
Document 1
15. Document 1 includes numerous internal e-mail messages between 5 February 2003 and 12 August 2003 that comprise 27 pages. These have been partially released by the respondent except for 11 pages containing what the respondent claims to be certain personal information about persons other than the applicant and three pieces of correspondence attached to three of the emails.
16. I have examined those email messages. Most of the content of the emails have been released to the applicant. The names of certain officers who object to the disclosure of their names have been deleted.
17. The documents contain personal information about persons other than the applicant. The Tribunal has held that the disclosure of names of individuals would be the disclosure of personal information: see Re Schofield and ACT Workcover (2000) 61 ALD 238; Re Ward and Centrelink [2004] AATA 761.
18. I consider that it would not be reasonable to make disclosure of these names of the individuals: see section 41. In coming to this conclusion I have taken into account that they object to the disclosure of their names. I also considered the object of the legislation in making available to the public information about the affairs of public authorities: see Freedom of Information Act 1982, section 3(1)(a). This object would not be advanced by the disclosure of the names of the officers. The mere names of the officers have in this case no demonstrable relevance to the affairs of government: cf, Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138, 123.
(ii) Ministerial correspondence
19. Documents 1, 2, 6 and 8 are all internal working documents of the agency that relate to the consideration by the agency of the Ministerial representation.
Document 1
20. Document 1 contains material relating to draft correspondence for consideration by the Minister.
Document 2
21. Document 2 is a document dated 7 February 2003 from Mr Stephen McMahon to Mr Michael Barbour. This is an internal memorandum advising of a receipt of a representation by Mr Rudd MP to Senator Alston. Most of this document has been released to the applicant except for certain opinions comprising personal or professional information about a person other than the applicant as well as some internal working comments.
Document 6
22. Document 6 is a document dated 9 July 2003 from Mr Stephen McMahon to the Group Manager, Corporate Services. The document is an internal minute attaching a report from Mr Downie (DLD Management Pty Ltd) and suggesting a form of letter to Senator Alston. This document has partially been released to the applicant except for some opinion information, including “a form of wording” suggested for a letter to Senator Alston.
Document 8
23. This document dated 30 July 2003 from Mr Michael Barbour to the Group Manager, Human Services is a “with compliments” slip attaching a draft memorandum in relation to a proposed response to Senator Alston. The “with compliments” slip has been released in full.
24. I have examined documents 1, 2, 6 and 8 and find that they should be withheld from disclosure on the ground that it would be contrary to the public interest to disclose these internal working documents: see section 36. These documents are part of the deliberative functions of an agency.
25. I have taken into account that this is a sensitive matter on which the applicant had already made a compliant to HEROC. In making this public interest assessment I also consider that the documents are part of the process of ensuring that the Minister was being effectively briefed on this matter, cf Re Howard and Treasurer, Commonwealth (1985) 3 AAR 169. I make the observation that there is a clear public interest in our system of responsible government in an agency being able to fully brief the responsible Minister. I have also taken into account that it would be contrary to the public interest to disclose this material as it would inhibit frankness and candor on decision making on a sensitive matter, cf Re Howard and Treasurer, Commonwealth (1985) 3 AAR 169.
26. In making this public interest assessment I have also taken into account that this is a matter on which the respondent had a reasonable apprehension of litigation.
(iii) Third party report (including accompanying letter)
Document 7
27. Document 7 is a document dated 8 July 2003 is a letter from DLD Management Pty Ltd to Mr Stephen McMahon. The letter has been released in part except for two paragraphs.
28. Enclosed with the letter is a report on an investigation into allegations made by the applicant through Mr Rudd. The respondent claims that the report is “prepared for use in obtaining legal advice and in anticipation of legal proceedings by the applicant”.
29. At the time that the report was completed the applicant had not commenced any legal proceedings against the respondent. However, for documents to attract legal professional privilege it is clear that there is no need for there to be the institution of legal proceedings. In Grant v Downs (1976) 135 CLR 674 at 677 Barwick CJ, who expressed a then dissenting opinion on the dominant purpose test, stated that privilege would exist if the documents “was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect”.
30. In my view it was reasonable for the respondent to take the view that the applicant would take legal proceedings against the respondent so that proceedings were “in reasonable prospect” in the sense used by Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677.
31. There is evidence upon which the respondent would have relied upon to take the view that the applicant would take legal action.
32. There are documents before the Tribunal which indicate that the applicant was considering legal action at a time before the report was completed. I have already mentioned the submission of the applicant on 5 July 2002 to HREOC which made reference to a “common law settlement”. Mr McMahon in his evidence referred to this as being a basis for his apprehension that the applicant would commence legal action against the respondent. Another document is an email of 6 May 2003 which contains a statement which alleges that the applicant stated “it would now become a legal issue” and referred to “a summons” being served on the respondent: see Section 37 Documents, p 48 (document T1).
33. When the applicant sought internal review from the respondent on 15 December 2003, he stated: “the concept of possible legal intervention being instigated on my part is an available alternative methodology”: see Section 37 Documents, p 60 (document T13).
34. At the hearing the applicant submitted that legal professional privilege cannot exist as he did not intend to initiate legal action against the respondent. This is also mentioned in his written submission dated 22 November 2004 in which the applicant stated: “Not a legal matter. LLP cannot apply”. I do not in any respect question the sincerity of the applicant who states that he now will not take legal action.
35. However, when the report was prepared it was prepared in circumstances and at a time where the respondent had a reasonable apprehension that the applicant had a legal claim against the respondent. That was certainly one reason why the report was prepared as well as to enable the respondent to respond to the ministerial representation.
36. I find that a main purpose of the report, which was prepared with legal advice, was to enable the respondent to respond to any litigation which the applicant may bring against the respondent. I accept the evidence of Mr McMahon that he commissioned the report because he considered it likely that the applicant would take legal action.
37. There have been a number of cases that deal which whether documents that are prepared by third parties can be privileged. These cases are discussed in Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 where Finn J remarked (at [42]):
“The important consideration in my view is not the nature of the third party’s legal relationship with the party that engaged it, but, rather, the nature of the function it performed for that party. If that function was to enable the principal to make the communication necessary to obtain legal advice it required, I can see no reason for withholding the privilege form the documentary communication authored by the third party. That party has been so implicated in the communication made by the client to its legal adviser as to bring its work product within the rationale of legal advice privilege”.
38. Applying these remarks of Finn J to this matter I find that the report is privileged as it was prepared to enable the respondent to obtain legal advice in relation to litigation that was “in reasonable prospect”.
Ruling
39. The Tribunal considers that the respondent has discharged the onus of establishing that all of the 5 documents are exempt to the extent that they have been withheld from the applicant.
40. In this matter a number of grounds have been submitted in support of the decision of the respondent to withhold disclosure of the documents. However, once one ground has been established it is not necessary to make a determination on those other grounds.
41. The Tribunal also observes that this is not a matter in which the applicant sought to bring about the amendment of records that are incomplete or incorrect: see Freedom of Information Act 1982, section 3(1) (c).
42. I wish to record my appreciation to the applicant and respondent in the manner in which the hearing was conducted. As a result the hearing of this matter, in which there is a considerable volume of documentation, was not protracted.
Procedural orders
43. It is necessary for me to make some procedural orders.
44. At the hearing of this matter I made an order under section 64(1) of the Freedom of Information Act1982 that unexpurgated versions of the exempt documents which were provided to the Tribunal be restricted to the Tribunal and to the Tribunal. Having regard to my decision in this matter that I am satisfied that Documents 1, 2, 6, 7 and 8 are exempt documents. It is necessary for me to make another order. I will order that those documents (namely Documents 1, 2, 6, 7 and 8) be returned to the respondent.
45. At the hearing I also made an order under section 35(2)(c) of the Administrative Appeals Tribunal Act1975 that Annexures A to D of the affidavit of Andrius Caprackas sworn on 29 October 2004 (Exhibit 4) remain sealed on the file until further order. That order still remains in force. To avoid any confusion that order will be restated in the final orders that I make to clarify that Annexures A to D remain sealed until any further order.
Orders
46. The Tribunal decides to:-
(iv)Affirm the decision under review;
(v)Return Documents 1, 2, 6, 7 and 8 to the respondent
(vi)Annexures A to D of the affidavit of Andrius Caprackas sworn on 29 October 2004 (Exhibit 4) remain sealed on the file until any further order.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Peter M McDermott
Signed: J Lauriston
Associate
Date of Hearing 25 November 2004
Date of Decision 17 January 2005
The Applicant appeared in person
Solicitor for the Respondent Mr M Batskos
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