Johnston v Director General, Department of Housing
[2003] NSWADT 125
•05/28/2003
CITATION: Johnston v Director General, Department of Housing [2003] NSWADT 125 DIVISION: General Division PARTIES: APPLICANT
Liberty Johnston
RESPONDENT
Director General, Department of HousingFILE NUMBER: 023021 HEARING DATES: On the Papers & 24 April 2003 SUBMISSIONS CLOSED: 04/24/2003 DATE OF DECISION:
05/28/2003BEFORE: Britton A - Judicial Member APPLICATION: access to documents - confidential material - access to documents - internal working documents - access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs MATTER FOR DECISION: Principal Matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Evidence Act 1995
Freedom of Information Act 1989CASES CITED: Kay v Commissioner of Corrective Services [2000] NSWADT 67
Young v Wicks (1986) 13 FCR 85 at 89 per Beaumont J
Colakovski (1991) 29 FCR 429 at 431 per Lockhart J
News Corporation (1984) 1 FCR 64 at 79 St John
New Corporation Ltd v NCSC (1984) 52 ALR 277
Forrest and Department of Social Security (1991) 23 ALD 649 at 652
Social Security v Dyrenfurth (1988) 80 ALR 533
F and Healh Department (1988) 2 VAR 458
Saleam v Director General, Department of Community Services and ors (2002) NSWADT 41
Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Saleam v Director General, Department of Community Services and ors (46) - (48)
Esso Australia Resources Ltd v Commissioner of Taxation (199) HCA 67
Grant v Downs (1976) 135 CLR 674 at 677
Charetris v General Manager, Leichhardt Municipal Council (GD) (2001) NSWADTAP 12
Waterford v Commonwealth of Australia (1987) 163 CLR 54
Alfred Crompton Amusement Machines Limited v Customs and Excise Commissioners (No. 2) (1972) 2 QB 102
Waterford v The Commissioner
Ritz Hotel Limited v Charles of the Ritz (No.4) (1987) 14 NSWLR 100
Australian Hospital Care Pty Limited v Duggan (No. 2) (1999) VSC 131
Ryder v Booth (1985) VR 870 at 872REPRESENTATION: APPLICANT
In Person
RESPONDENT
A Calcopietro, Solicitor & C Valacos, SolicitorORDERS: 1. The decision in respect of foliios 1168, 1214, 1252, 1307, 1350, 1351, 1429, 1459, 1274, 1400, 1397, 1396 and 1398 is set aside and in substituion I order that these documents be released.; 2. The decision in respect of folios 1163, 1164, 1168, 1351, 1352, 1353, 1358, 1428 and 1429 is remitted and I direct that the Department reconsider its decision that disclosure would be unreasonable after having consulted with relevant parties in accordance with the procedure set down in s. 31 of the Freedom of Information Act 1989.; 3. The decision in respect of folios 1551 and 1550 is remitted to the Department for further consideration.; 4. The decision in respect of the remainder of documents set out in Attachment A of these reasons is affirmed.
1 Ms Liberty Johnston, a former tenant of the Department of Housing (“the Department”) seeks access under the Freedom of Information Act 1989 (“the Act”) to all her tenancy files held by the Department. By notice dated 27 February 2002, the Department refused that request. Ms Johnston now seeks review of that decision.
2 The issue for determination is whether the Department, in refusing Ms Johnston access to documents, made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law: s 63(1) of the Administrative Decisions Tribunal Act 1997 (NSW) (“the Tribunal Act”).
3 The Tribunal has jurisdiction to review this decision pursuant to s 38 of the Tribunal Act and s 53 of the Act.
4 With the consent of the parties, this application was determined “on the papers”. At the direction of the Tribunal a short hearing was held on 24 April 2003. Both parties attended, the applicant by phone. Part of that hearing was held in the absence of the applicant as I was of view that it was necessary to do so to prevent the disclosure of exempt material (s 55(5)(b) of the Act).
Original Decision
5 On 4 December 2001 Ms Johnston made application to the Department under the Act for the following documents: “For files of all tenancies with Dept. File dealing with housing application for priority assistance (dated 1.1.01). Policy relating to procedures for DOH to initiate internal review. All memorandums of understanding with NSW Police Service Procedure for making decisions re P.A [Priority Assistance] and review of same.” In addition Ms Johnston sought documents relating to a PA application at Belvoir Street and the “missing pages” of an affidavit purportedly filed in a matter before the Equal Opportunity Tribunal.
6 By notice dated 31 December 2001, the Department’s delegate released to Ms Johnston a number of policy documents but otherwise refused access to the documents requested (“the original decision”). An internal review set aside that decision on the grounds that the original decision maker had incorrectly identified the scope of documents requested. That decision identified the documents requested as all Ms Johnston’s tenancy files held with the Department, which consisted of about 1700 folios. That decision was communicated to Ms Johnston by notice dated 16 January 2002. In that notice Ms Johnston was requested to pay an advance deposit and advised that if no payment were made the Department would not continue to deal with the application (s 22(3)).
7 Discussions between the parties ensued and an agreement was reached at a case conference before the Tribunal on 18 February 2002 that the respondent would process the application (up to 20 hours) without requiring a deposit.
8 By notice dated 27 February, Ms Johnston was advised that a decision had been made not to release any documents contained in her tenancy file. Attachment A sets out in table form the exemption invoked by the Department for each document.
Relevant legislation
9 Under s 16 of the Act a person has a right to apply for access to an agency’s documents in accordance with the Act. The agency must determine whether or not to grant the access sought. It may do so only on grounds specified in the Act. Section 61 of the Act places the onus of proving a determination to refuse access to documents on the agency that makes that determination. One ground on which the agency may refuse access to a document is that the document is exempt pursuant to s 25 of the Act. An exempt document is defined by s 6 to include a document referred to in Schedule 1 of the Act.
10 The objects of the Act, however, make clear that the rights of the public to obtain access to government records, and to correct records held about them, are to be extended as far as is reasonably possible. (See s 5). Nonetheless, if a document is found to be exempt, the agency concerned must find “special or overriding circumstances or interests” should it wish to release the information: Kay v Commissioner of Corrective Services [2000] NSWADT 67.
11 The original decision and the internal review decision relied on five exemptions contained in Schedule 1 of the Act namely, the personal affairs exemption (clause 6), the business affairs exemption (clause 7), the internal working document exemption (clause 9), the legal professional privilege exemption (clause 10) and the confidentiality exemption (clause 13). These are set out below.
- 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.
7 Documents affecting business affairs
(1) A document is an exempt document:
- (a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or
(b) if it contains matter the disclosure of which:
- (i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and
(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or
- (i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and
(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.
9 Internal working documents
(1) A document is an exempt document if it contains matter the disclosure of which:
- (a) would disclose:
- (i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or
(ii) any consultation or deliberation that has taken place,
(b) would, on balance, be contrary to the public interest.
- (a) matter that appears in an agency's policy document, or
(b) factual or statistical material.
(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.
13 Documents containing confidential material
A document is an exempt document:
- (a) if it contains matter the disclosure of which would found an action for breach of confidence, or
(b) if it contains matter the disclosure of which:
- (i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.
12 Section 31 sets out the consultation process to be followed by the relevant agency where documents contain information concerning personal affairs (clause 6). In short, the agency is required to take “such steps as are reasonably practicable” to obtain the views of the person concerned: s 31(2). For convenience s 31 is set out in full:
- Documents affecting personal affairs
(1) This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased).
(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.
(3) If:
- (a) an agency determines, after having sought the views of the person concerned, that access to a document to which this section applies is to be given, and
(b) the views of the person concerned are that the document is an exempt document by virtue of clause 6 of Schedule 1, the agency shall:
(c) forthwith cause written notice to be given to the person concerned:
- (i) that the agency has determined that access to the document is to be given, and
(ii) of the rights of review and appeal, and the rights of complaint to the Ombudsman, conferred by this Act and the Ombudsman Act 1974 in relation to the determination, and
(iii) of the procedures to be followed for the purpose of exercising those rights, and
- (a) an application is made to an agency for access to a document to which this section applies, and
(b) the document contains information of a medical or psychiatric nature concerning the applicant, and
(c) the agency is of the opinion that disclosure of the information to the applicant may have an adverse effect on the physical or mental health of the applicant, and
(d) the agency decides that access to the document is to be given, it is sufficient compliance with this Act if access to the document is given to a registered medical practitioner nominated by the applicant.
13 Section 25(4) of the Act provides that:
- An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):
- (a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and
(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.
14 Those documents which the Department contends fall within the scope of Schedule 1, clause 6 are identified in Attachment A. I must determine for each document first, whether it contains information concerning the personal affairs of any person (other than the applicant) and second, whether disclosure of that information would be unreasonable.
Do the documents contain information concerning the personal affairs of any person?
15 While the term "personal affairs" is inherently imprecise, it has been generally interpreted to mean "matters of private concern to an individual". (See Young v Wicks (1986) 13 FCR 85 at 89 per Beaumont J; Colakovski (1991) 29 FCR 429 at 431 per Lockhart J.) In News Corporation (1984) 1 FCR 64 at 79 St John J drew a distinction between business and personal affairs characterising the concept of "personal affairs" as "relating to family and marital relationships, health or ill-health, relationships with and emotional ties with other real people." In Colakovski (at 436) Lockart J expressed the view that the scope of "personal affairs" was not quite so easy to delineate, broadening the definition to "information which concerns or affects the person as an individual whether it is known to other persons or not." He was also anxious (at 436) to distinguish between information that was "personal" and information that was "private and confidential" - the two concepts not being synonymous.
16 Examples of types of information which have been considered to be "personal affairs" include information concerning a person's family, marital and domestic relationships: Re Stewart (1993) 1 QAR 227; information concerning a person's medical affairs: News Corporation Ltd v NCSC (1984) 52 ALR 277; and "information as to the relationship of two persons with one another as de facto husband and de facto wife, the facts relating to the break-up of that de facto relationship and the time and circumstances in which it occurred: Re Forrest and Department of Social Security (1991) 23 ALD 649 at 652. In Department of Social Security v Dyrenfurth (1988) 80 ALR 533 it was held that information concerning family and marital matters, health matters, relationships with others, domestic responsibilities and financial obligations constitute personal information. In Re F and Health Department (1988) 2 VAR 458 it was held that private behaviour, home life and personal family relationships also constitute personal affairs.
17 In written submissions, the Department argues that all documents for which it invokes the clause 6 exemption contain “personal information about third parties such information which is not connected with the applicant and of no particular benefit to the applicant”. It was not immediately apparent to me what personal information a number of documents purportedly contained. Accordingly, directions were made on 7 April 2003 inviting the Department to identify that information in a number of specified documents. Subsequently the Department withdrew its claim that folios 1214, 1252, 1350,1351, 1364, 1365, 1366 and 1400 fall within Schedule 1, clause 6.
18 The documents that the Department now contends fall within Schedule 1, clause 6, largely relate to a private tenancy agreement entered into by Ms Johnston in 1998, facilitated by the Department. A number relate to alternative housing options explored by the Department on behalf of Ms Johnston.
19 It is plain that a large number of these documents contain information of a private nature, such as the home address and phone numbers of Departmental offices and representations made by individuals concerning their dealings with Ms Johnston and the Department.
20 The Department maintains its categorisation of folios 1168, 1307, 1398, 1429 and 1459 as documents falling within the scope of clause 6 arguing that each contain contact details of the private landlord and various third parties engaged to provide services in respect of the tenancy.
21 In my view in the circumstances of this case the landlord’s contact details could not reasonably be said to constitute “personal affairs”. In any event from a reading of Ms Johnston’s file it is simply fanciful that she did not have the contact details of the landlord with whom she was in regular contact. No evidence was led by the respondent to indicate otherwise. Similarly I am not persuaded that the name and contact details of persons engaged to provide services in connection with the tenancy could be said to constitute information about their personal affairs.
22 Accordingly I am not satisfied that folios 1168, 1214, 1252, 1274, 1307, 1350, 1351, 1352, 1353, 1364, 1365, 1366, 1398, 1400, 1426, 1429 1458, and 1459 contain information about the personal affairs of any person (other than the applicant). As the first element of clause 6 has not been made out it is unnecessary to consider whether disclosure would be unreasonable. Within this group, the Department relies solely on the personal affairs exemption in respect of folios 1168, 1214, 1252, 1307, 1350, 1351, 1352, 1353, 1426, 1429, 1458 and 1459 and the decision in respect of these documents is set aside. I will return to consider the remaining documents if the alternative exemption is not made out.
Would disclosure be unreasonable?
23 Whether disclosure will be unreasonable has at “its core, public interest considerations”: Colakovski (at 270) Lockhart J. In the recent decision of Saleam v Director General, Department of Community Services and ors [2002] NSWADT 41 President O’Connor DCJ adopted [at 38] the general approach taken by the Commonwealth Administrative Appeals Tribunal (AAT) to determine whether disclosure would be unreasonable citing with approval the following passage from Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257:
- “ [I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. Whether a disclosure is "unreasonable" requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 [the Commonwealth FOI Act exemption equivalent to cl 6] seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.
However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document: page N259.”
24 Section 59A of the Act makes it clear that, when determining whether disclosure would be contrary to the public interest, it is irrelevant that disclosure may cause embarrassment to the Government or a loss of confidence in the Government. It is also irrelevant whether disclosure causes the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.
25 Applying these principles, requires the weighing up of the public interest of protecting the privacy of third parties whose personal information is contained in these documents against the public interest of enabling the applicant to access documents held by a Government agency. (See Colakovski (at 438)). In making this determination the following factors will be relevant: the reasons the applicant seeks access to the documents (but see Saleam v Director General, Department of Community Services and ors [46]-[48]); the nature of the information contained in the documents; and, finally, whether disclosure is likely to have any adverse impact on the person or persons whose personal affairs are contained in the document.
26 It is not entirely clear from the material before me, but it appears that Ms Johnston believes that some of the information contained in her file may be incorrect. If so she wants the opportunity to have it corrected. Further, I understand it to be her belief that the information would assist her to understand a number of the Department’s decisions that directly concern her.
27 The Department argues that disclosure would be unreasonable for the following reasons. First, it asserts that some documents contain information provided on a confidential basis and cites folios 1199, 1197, 1164, 1281, 1418, 1487 and 1488 as examples. Second, it contends that other (unspecified) documents contain confidential details about some of its tenants.
28 Having carefully examined each document and applying the relevant principles, I am of the view that it would be unreasonable for the following folios to be disclosed: 1243, 1245, 1255, 1356, 1361, 1362,1360, 1363, 1364, 1365, 1366, 1371,1372,1373,1374,1375,1382,1381,1380,1379,1378, 1377,1376,1383,1384,1385,1386,1392,1393,1412,1413,1414,1415,1436,1435,1434,1439,1438,1437,
1707,1708. The decision of the Department on those documents is affirmed.
29 However my preliminary view is that disclosure of folios 1163, 1164, 1168, 1199 (cl 13), 1273 (cl 7), 1281 (cl 7), 1351, 1352, 1353, 1358, 1360 (cl 9), 1417 ( cl 7), 1418 (cl 7), 1419 (cl 13), 1420 (cl 13), 1428, 1429, 1488 (cl 13), 1491 (cl 13), 1487 (cl 13), 1463 (cl 13), 1462 (cl 13), 1461 (cl 13), 1460 (cl 13) would not be unreasonable. (Folios followed by clause numbers in brackets indicate documents where more than one exemption is invoked). That observation is made without the benefit of any advice as to the views of those individuals whose personal affairs are contained in the material. Their respective views are not determinative but nevertheless they must be taken into account (s 31(2)).
30 In my view the correct and preferable decision in respect of each documents listed in the preceding paragraph, for which clause 6 is the sole exemption invoked, is to remit that decision and direct that the Department reconsider its assessment that disclosure would be unreasonable, after having consulted with the relevant parties in accordance with the procedure prescribed in s 31 of the Act. I will return to consider those documents for which the Department relies on an alternative exemption.
Orders: personal affairs exemption
31 The decision in respect of folios 1168, 1214, 1252, 1307, 1350, 1351, 1426, 1429, 1458 and 1459 (for which partial exemption only is claimed) is set aside and in substitution I order that those documents be released.
32 The decision in respect of folios 1163, 1164, 1168, 1351, 1352, 1353, 1358, 1428, and 1429 is remitted and I direct that the Department reconsider its decision that disclosure would be unreasonable after having consulted with the relevant parties in accordance with s 31 of the Act.
33 The decision in respect of folios 1243, 1245, 1255, 1356, 1361, 1362,1360, 1363, 1364, 1365, 1366, 1391, 1371,1372,1373,1374,1375,1382,1381,1380,1379,1378,1377,1376, 1383,1384,1385,1386,1392,1393, 1412,1413,1414,1436,1435,1434,1439,1438,1437,1707,1708 is affirmed.
Business affairs exemption
34 At the hearing of 24 April 2003, the Department advised that it no longer relied on this exemption in respect of any documents identified in Attachment A. Accordingly, it is not necessary for me to consider this exemption.
Internal working documents exemption
35 I must determine two issues for each of the documents where this exemption is claimed. First, is the document an internal working document? And second, on balance, would disclosure be contrary to the public interest?
36 The respondent advised at the 24 April hearing that it no longer contended that folios 1274, 1400 and 1397 fell within the scope of clause 10.
Are the documents “Internal Working Documents”?
37 The whole of a document will be exempt if it “contains matter” that would disclose:
- (i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or
(ii) any consultation or deliberation that has taken place,
(iii) in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and
38 A document is not exempt if it “merely consists” of matter that appears in an agency’s policy document or factual or statistical material.
39 The Department contends that the documents that it identifies as internal working documents concern the applicant’s (and others) dealings with the Department. It asserts that each contain information, advice and opinions recorded in the course of the Department’s decision-making functions.
40 This broad submission is somewhat unhelpful. No attempt has been made to identify and/or categorise the many documents said to fall within the scope of Schedule 1, clause 9.
41 An examination of the relevant documents reveals they fall largely within two groups. The first group contains briefing notes prepared for the Director-General and Minister for Housing about Ms Johnston. The second group is made up of voluminous file notes made by Department staff, apparently following discussions with Ms Johnston and third parties.
42 The briefing notes contain the opinion and advice of their respective authors. They were apparently prepared for the purpose of providing advice and making recommendations to senior Departmental officers and the Minister, to assist them in their respective decision-making roles. All fall within Schedule 1, clause 9(1)(a).
43 I am satisfied that all file notes fall within the scope of Schedule 1, clause 9(1)(a)(ii) and were made for the purpose of the decision-making functions of government.
44 However, a number of documents for which the Department invokes the clause 9 exemption could not be characterised as either file or briefing notes. I will deal with each in turn.
45 Folios 1274 and 1400 are invoice entries. Folio 1274 records the payment of a rental subsidy by the Department on behalf of Mrs Johnston to a private landlord. Folio 1400 records the payment of Ms Johnston’s relocation expenses. At the point both documents were created, the respective decision had been made ie to partly subsidise Mrs Johnston’s rent (folio 1274) and to pay her relocation expenses (folio 1400). Both record an administrative procedure. They are merely the end-product in the decision-making process and do not fall within the scope of clause 9.
46 Folio 1398 is an invoice issued by a supplier. A notation made by a Department officer approving payment appears on it. It too, is the end-product of a decision making process and could not be said to fall within the scope of clause 9.
47 Folio 1397 is apparently a cancelled invoice entry. The Department makes no submission in respect of this document. I am not persuaded it comes within clause 9(1).
48 Folio 1396 appears to be a pro forma document and is headed “Additional Distribution (Appropriation)”. It is blank. Again the Department makes no submission in respect of this document. I am not persuaded on the material before me that it falls within the scope of clause 9.
49 Folios 1551 and 1550 are undated letters addressed to Ms Johnston from the Minister for Housing. Neither is on letterhead nor do they contain the signature of the Minister. The contents of each are broadly similar.
50 From the material before me, I have no way of knowing whether either is a draft letters (as Mr Valacos for the Department asserts is probably the case) or, whether one is a file copy of a letter that was sent to Ms Johnston. If the latter is the case, it is apparent that clause 9 could not be invoked. Given the uncertainty surrounding the identity of these documents the appropriate course is for the decision in respect of each to be remitted to the Department to enable the true nature of the documents to be determined.
Would disclosure, be contrary to the public interest?
51 Having examined each document I am satisfied that disclosure would be contrary to the public interest.
Orders
52 The decision in respect of folios 1274, 1400, 1397, 1396, 1398 is set aside and in substitution I order that these documents be released.
53 The decision in respect of folios 1551 and 1550 is remitted to the Department for further consideration.
54 The decision in respect of the remainder of the documents for which the Department invokes the clause 9 exemption (but excluding those documents where the Department’s decision to invoke the clause 6 exemption has been affirmed) is affirmed.
Legal professional privilege exemption
55 The respondent claims exemption under Schedule 1, clause 10 for four documents identified in Attachment A. The Department’s decision in respect of one document, namely folio 1522, has been affirmed (clause 9) and therefore it is not necessary to consider it further.
56 The principles of legal professional privilege are well known. The High Court in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 adopted the approach taken by Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677:
- [a] document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.
57 Section 118 of the Evidence Act 1995 creates a privilege for confidential documents prepared for the dominant purpose of providing legal advice. As far as documents are concerned, it is the "contents of a confidential document (whether delivered or not) prepared by the client or a lawyer" which may be privileged. The Evidence Act defines a confidential document to be a document which, when it was prepared, was prepared in circumstances expressly or impliedly requiring either the person who prepared it or the recipient not to disclose its contents.
58 The Evidence Act largely overlaps the common law position on legal professional privilege. In Charteris v.General Manager, Leichhardt Municipal Council (GD) [2001] NSWADTAP 12 the Appeal Panel considered which approach should prevail for the purpose of the clause 10. The Panel stated [at 21] that it did not favour an unduly mechanical approach. It was not convinced at this stage that different outcomes would flow from applying the Evidence Act tests or the common law test to documents in dispute in an FOI case.
59 The High Court in Waterford v Commonwealth of Australia (1987) 163 CLR 54 considered whether legal advice given by lawyers employed by a government agency were protected by legal professional privilege. The majority (at 62) said:
- In our opinion. . . there is no reason to place legal officers in government employment outside the bounds of legal professional privilege. The proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser. . . . To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship, which secures to the advice an independent character notwithstanding the employment.
60 The same principles apply to salaried legal officers in government departments and salaried legal officers in private corporations. (See Alfred Crompton Amusement Machines Limited v Customs and Excise Commissioners (No. 2) (1972) 2 QB 102, cited with approval in Australia by the majority of the judges in Waterford v the Commonwealth; Ritz Hotel Limited v Charles of the Ritz (No. 4) (1987) 14 NSWLR 100; Australian Hospital Care Pty Limited v Duggan (No. 2) (1999) VSC 131.)
61 The three documents for which the Department claims exemption consist of communications between the Department’s solicitors and relevant officers about proceedings before the Equal Opportunity Tribunal in which Ms Johnston and the Department were parties. From an inspection of these documents it is apparent that each was prepared for the primary purpose of briefing relevant Department staff about these proceedings and providing legal advice. There is nothing before me to indicate that the privilege attached to these documents has been waived.
62 It is to be noted that in her original FOI application Ms Johnston asked for among other things “those missing pages of the Pauline McKenzie affidavit to EOT”. Section 55(a) of the Act instructs me not to disclose any exempt material in these reasons. I can, however, indicate that none of the relevant documents could be said to constitute Pauline McKenzie’s affidavit or part thereof.
63 I find that folios 1146, 1147, and 1166 fall within the scope of clause 10. Accordingly, the decision in respect of those documents is affirmed.
Confidential material exemption
64 The Department claims exemption under Schedule 1, clause 13 for 26 folios as identified in Attachment A. A number have found to be exempt on other grounds therefore it is not necessary to determine whether they also fall within the scope of this exemption.
65 The remaining documents can be identified as follows:
- Management agency agreement (folio 1199);
Correspondence by a third party to a member of parliament complaining about the conduct of the Department (folios 1419, 1420, 1421, 1422);
Letter by third party to the Department dated 16 September 1998 (folios 1460,1461, 1462, 1463, 1487, 1488) and Department’s reply (undated) (folio 1491);
66 I understand the Department to rely on clause 13(b) in respect of these documents. To fall within this provision, it must be established that the document contains matter which if disclosed:
- (i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.
67 I am satisfied that all three documents contain matter the release of which would disclose information obtained in confidence. The more difficult question is whether disclosure could reasonably be expected to prejudice the future supply of such information to the Department? Not surprisingly, the Department asserts that it would. The focus of the inquiry is on the Department’s ability to obtain information similar in the future not that of the original recipient. (See Ryder v Booth [1985] VR 870 at 872).
68 Both the management agreement and letter of complaint were provided directly to the Department. Given the content of each, I am satisfied that disclosure may impair future supply of like material to the Department.
69 In respect of the letter to the parliamentarian (folios 1419, 1420, 1421, 1422) the issue to be determined is whether release would impair the ability of the Department, not the parliamentarian, to obtain similar information in the future. That letter was apparently passed on to the Department so that the parliamentarian could be briefed on various allegations contained in that letter.
70 It is, of course, impossible to say with absolute certainty whether the disclosure of information provided in confidence will discourage persons in the future to provide similar information to the Department and, if so, to what degree. However, taking into account the nature of the information contained in the letters, it is more likely than not, that the future supply of similar information may be compromised.
Would disclosure be contrary to the public interest?
71 The final issue to be determined is whether disclosure would on balance be contrary to the public interest. Again it is not surprising the Department argues that it would. The Department contends that it is essential that it be seen to preserve and respect the confidence of informers. It submits such information is essential if it is to be able to properly manage publicly owned housing.
72 The Department further argues, “the applicant’s cause would not be advanced by the release of these documents”. Read as a whole, the flavour of these submissions indicates some frustration with Ms Johnston’s application and a view that it may lack merit.
73 The Act gives individuals a legally enforceable right to documents held by Government, subject to a number of exceptions. Its objects include extending, as far as possible, the rights of the public to obtain access to information held by the Government and to ensure that that records held about the personal affairs of members of the public are not incorrect or misleading (see s 5). The Act does not distinguish between individuals who will exercise that right “responsibly” (however defined) and those who may not. Nor does the Act require applicants to establish that their request is made for “legitimate” reasons.
74 In my view the Department erred in taking into account what it sees as Ms Johnston’s misguided crusade. Ms Johnston has a right to documents subject to the not inconsiderable restrictions imposed by the Act. Whether the information provided would assist Ms Johnston’s “cause” (whatever that might be) is in my view an irrelevant consideration.
75 In determining whether disclosure would on balance be in the public interest, I am required to balance the competing public interests of Ms Johnston’s right to access documents against the broader public interest of respecting the confidentiality of material supplied to the Department by the third parties. Having carefully examined those documents, I am satisfied that in this case the public interest of maintaining confidentiality should prevail.
76 Accordingly, the Department’s decision in respect of folios 1199, 1419, 1420, 1421, 1422, 1460,1461, 1462, 1463, 1487, 1488, and 1491 is affirmed.
Documents for which partial exemption is claimed
77 The Department seeks partial exemption for eight documents identified in Attachment A, apparently having formed the view that each satisfies the requirements of Section 25(4) of the Act. Section 25(4) provides that an agency may not refuse access to the document where (a) it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and (b) it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.
78 To rely on s 25(4) the Department must first establish that each document contains exempt material. Having examined each, I am satisfied that each does (in accordance with the exemption invoked by the Department and set out in Attachment A) for all documents (but not folio 1459 which I have considered in paragraph 22 of these reasons). Accordingly, the Department’s decision in respect of folios 1197,1256, 1349, 1401, 1424, 1616, 1689 and 1735 is affirmed.
Sections 25(4)
79 I have examined each of the documents where the Department’s decision not to release has been affirmed and find that it would not be practicable to give access to a copy of the document from which the exempt matter has been deleted or that the applicant would not wish to be given access to such a copy.
Orders
80 The decision in respect of folios 1168, 1214, 1252, 1307, 1350, 1351, 1429, 1459, 1274, 1400, 1397, 1396 and 1398 is set aside and in substitution I order that these documents be released.
81 The decision in respect of folios 1163, 1164, 1168, 1351, 1352, 1353, 1358, 1428, and 1429 is remitted and I direct that the Department reconsider its decision that disclosure would be unreasonable after having consulted with the relevant parties in accordance with s 31 of the Act.
82 The decision in respect of folios 1551 and 1550 is remitted to the Department for further consideration.
83 The decision in respect of the remainder of documents set out in Attachment A of these reasons is affirmed.
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