Johnston v TAFE NSW

[2019] NSWCATAD 152

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Johnston v TAFE NSW [2019] NSWCATAD 152
Hearing dates:	15 March 2019
Date of orders:	01 August 2019
Decision date:	01 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Ransome, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW – freedom of information – access to information – legal professional privilege – whether respondent holds further information – access charges – whether information personal information
Legislation Cited:	Government Information (Public Access) Act 2009
Cases Cited:	Amos v Central Coast Council [2018] NSWCATAD 101 Battin v University of New England [2013] NSWADT 73 Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 Cianfrano v Director General, Attorney General's Department [2008] NSWADTAP 10 Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353 Miriani v Commissioner of Police (NSW) [2005] NSWADT 187 Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 Saggers v Environment Protection Authority [2013] NSWADT 109 Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 Trade Practices Commission v Sterling (1979) 36 FLR 244 Waterford v Commonwealth (1987) 163 CLR 54 Watson v NSW Trustee and Guardian (No 2) [2016] NSWCATAD 19
Category:	Principal judgment
Parties:	Phillip Johnston (Applicant) TAFE NSW (Respondent)
Representation:	P Johnston (Applicant in person) A Flechnoe-Brown (Respondent)   Solicitors: Clayton Utz (Respondent)
File Number(s):	2018/00204300
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondent on a confidential basis, to the evidence given in private before the Tribunal and to the record of that part of the proceedings conducted in private pursuant to s 49. That material is not to be released to either the applicant or to the public.

REASONS FOR DECISION

1. In early 2018 Mr Phillip Johnston, who had previously been an employee of TAFE NSW, sought to enrol in the Certificate IV in Business Administration at Northern Sydney Institute Meadowbank Campus. On 22 February 2018 he was informed that his enrolment could not be finalised and was directed not to attend classes until the status of his enrolment was resolved. That occurred on 27 April 2018 when he was informed by TAFE NSW that his enrolment would be accepted, subject to certain conditions being fulfilled including that he enter into a Student Behavioural Agreement on terms determined by TAFE NSW. As I understand it, Mr Johnston refused to enter into the agreement and did not enrol in the course.

2. Mr Johnston originally made an application to TAFE NSW under the Government Information (Public Access) Act 2009 (GIPA Act) on 9 April 2018 seeking access to a range of information concerning his attempt to enrol in the Business Administration course. This application was subsequently amended. Following communication with Mr Johnston, TAFE NSW formed the view that the application was in fact invalid and made a decision to that effect. Mr Johnston sought review of that decision by the Tribunal.

3. As a result of certain steps taken in the course of the Tribunal proceedings, Mr Johnston revised the scope of his access request and TAFE NSW determined that, based on the revised scope, the application was valid. The matter was remitted for reconsideration by TAFE NSW and a new decision was made on 18 September 2018. Mr Johnston remained dissatisfied with the outcome and it is that decision which is now the subject of the review.

4. The amended scope of Mr Johnson’s request for access to information held by TAFE NSW is:

Any information relating to Phillip Johnston’s attempted enrolment in Certificate IV of the Business Administration course at Meadowbank College in February 2018.

5. Certain documents falling within the scope of this request were released to Mr Johnston and access to others was refused. In relation to the documents to which access was refused in whole or in part, TAFE NSW states that access was refused:

• on the basis of legal professional privilege;

• because there is an overriding public interest against disclosure having regard to the public interest considerations in the Table to s 14 of the GIPA Act; or

• because the document is already available to Mr Johnston.

6. In its decision TAFE NSW also imposed a processing charge, at a discounted rate, for the time spent dealing with the access application.

7. In his submissions Mr Johnston submits that TAFE NSW has no basis upon which to claim legal professional privilege over any of the documents falling within the scope of his GIPA application. He also states that there are other documents which exist and which have not been provided to him. Mr Johnston also seeks a reduction in the amount charged for processing charges.

8. Mr Johnson raised other matters in his submissions including that a particular member of the Tribunal have no further involvement in any current or future applications by him to the Tribunal. These other matters are not matters that I can consider in the context of deciding the GIPA application.

9. The issues before me are therefore whether:

• the respondent holds information which falls within the scope of the access application and which has not been disclosed to the applicant;

• information which has not been released is subject to legal professional privilege (Schedule 1, cl 5); and

• whether the processing charge should be reduced.

The legislative scheme

10. The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

11. It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.

12. There is a presumption in favour of the disclosure of government information unless there is an “overriding public interest against disclosure”: s 5 of the GIPA Act. There are two situations in which there will be an overriding public interest against disclosure. First, under s 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. Once the information is established to be of a kind specified in Schedule 1, no further inquiry is made.

13. In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act.

14. In the second situation, the decision-maker’s task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.

15. The decision to not release certain information to Mr Johnston was made on several bases. Mr Johnston in his submissions seeks to challenge the decision only in respect of whether the information is subject to legal professional privilege. This is a category which falls within Schedule 1 and, as a result, if it is established that the information is in fact subject to legal professional privilege, there is no balancing of considerations required.

16. I will now deal in turn with each of the issues raised in the review and the relevant law.

Does the respondent hold further information?

17. Mr Johnston submits that TAFE NSW holds further information which comes within the scope of his access request the existence of which has not been acknowledged by TAFE NSW. The information has not been given to him nor has it been withheld. Mr Johnston identifies the following information as being information which must exist and which should have been found but which has not been referred to by TAFE NSW in its decision:

1. Document 32 (which has been released to Mr Johnson) refers to an “exemption form” and records in “EBS” which Mr Johnston states should have been provided to him.

2. Document 34 (which has been released to Mr Johnson) refers to a “risk management process” which he states has not been provided to him.

3. A printout of his enrolment form and attached notes and letters from Marie Larkings and Alison La Spina have not been provided.

4. A copy of a behaviour agreement mentioned by Marie Larkings has not been provided.

18. I note that, prior to the hearing, Mr Johnston was supplied with two further documents identified by TAFE NSW as being within the scope of his request. These were a “Student fee exemption application form” in respect of Mr Johnston and a screen shot of details concerning Mr Johnston from the Education Business System (EBS).

19. Under s 53 of the GIPA Act, an agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

20. Mr Johnston appears to contend that TAFE NSW did not undertake reasonable searches for the information he sought, and seeks review of the decision on the basis that further information should be made available to him. In essence, he seeks review under sections 80(d) and 80(e) of the GIPA Act, which provide that a reviewable decision includes:

• a decision to provide access or to refuse to provide access to information in response to an access application (s80(d)),

• a decision that government information is not held by the agency (s80(e)).

21. TAFE NSW states that the only documents withheld by it were those which, in its view, contained information which was exempt from release.

22. In reviewing a decision that an agency does not in fact hold information, it is appropriate to consider the sufficiency of an agency’s searches to locate relevant documents. The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. The cases have applied the approach of the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464. In that decision the Commissioner outlined a two-stage approach to the question of what constitutes an adequate search. The first is to consider whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency. If that question is answered in the affirmative, then to consider whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances.

23. The respondent has stated that the applicant must put on some credible material in support of his submission that documents of the kind requested exist. However, as was noted in Amos v Central Coast Council [2018] NSWCATAD 101, the burden of establishing that the decision that an agency does not hold information is justified lies on the agency: GIPA Act s 105(1).

24. What constitutes a reasonable search will vary with the circumstances, however, key factors include the clarity of the request, the way the agency’s record keeping system is organised and the ability to retrieve any information that is the subject of the request: Miriani v Commissioner of Police (NSW) [2005] NSWADT 187 at [30]; Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]. That there may be some weaknesses in an agency’s searches or failures in recordkeeping within the agency, does not necessarily lead to the conclusion that the search has not been reasonable: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; Saggers v Environment Protection Authority [2013] NSWADT 109 at [49]. The fact that further documents are subsequently located does not mean that the initial searches were not reasonable: Watson v NSW Trustee and Guardian (No 2) [2016] NSWCATAD 19 at [25]-[28].

25. TAFE NSW has not provided any affidavit evidence to support its submission that its search efforts were reasonable in the circumstances. It points to the fact that searches for information regarding Mr Johnston’s attempted enrolment at Meadowbank College around and after February 2018 were undertaken by Student Services, Sydney Region, Disability Services for Sydney Region, North Region, Legal Unit, and the Work Health and Safety area in Corporate Services, Sydney. TAFE NSW also refers to the fact that, since the decision was made further searches have been undertaken and two further documents have been provided to Mr Johnston as an indication that all reasonable searches have been undertaken.

26. TAFE NSW states that Mr Johnston has been provided with details of all documents it held up to the date of his access application in April 2018. Section 53(1) of the GIPA Act provides that the obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. Action in relation to the issues concerning Mr Johnston’s enrolment, however, continued past that date. For example, the letters referred to by Mr Johnston from Marie Larkings and Alison La Spina were sent to him after his access application was received.

27. In the circumstances of this matter, I am satisfied that, in response to the request, inquiries were made of relevant areas within the TAFE NSW which were likely to hold relevant documents and electronic records and systems were examined. The material before me, including that in relation to the processing charges, demonstrates that considerable time and effort was put into responding to Mr Johnston’s amended request. While it was unfortunate that some documents were not located until later in the course of the Tribunal proceedings, I am not satisfied that that fact indicates that the searches undertaken were not reasonable. The two documents now provided seem to address part of Mr Johnston’s concerns. There is insufficient information before me to enable me to be satisfied that further information exists that would fall within the scope of the access application and was held by TAFE NSW when the application was received.

28. It follows, in these circumstances, that I am not satisfied that there are reasonable grounds to believe that other information that falls within the scope of Mr Johnston’s access application is held by the respondent.

Legal professional privilege

29. TAFE NSW has refused to release a number of documents because they are subject to legal professional privilege.

30. There is a presumption in favour of the disclosure of government information unless there is an “overriding public interest against disclosure”: s 5 of the GIPA Act. As noted above, under s 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

31. Clause 5 of Schedule 1 to the GIPA Act provides:

5 Legal professional privilege

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

32. The Tribunal has considered cl 5 of Schedule 1 in numerous matters. Client legal privilege protects confidential communications between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client or for use in current or anticipated litigation.

33. In order for client legal privilege to attach to information, each element of client legal privilege must be satisfied. The essential elements of client legal privilege are:

1. the existence of a client and lawyer relationship; and

2. the confidential nature of the communication or document; and

3. the communication or document was brought into existence for the dominant purpose of either:

1. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or

2. for use in existing or anticipated litigation.

34. These considerations are embodied within sections 118 and 119 of the Evidence Act 1995.

35. The privilege extends to various classes of documents and beyond communications directly between lawyer and client, including documents used to assist the lawyer to give advice and the client to receive it: Trade Practices Commission v Sterling (1979) 36 FLR 244 at [4]. It is not only the primary record of the advice that is privileged. Summaries of the advice and documents recording instructions to provide legal advice attract the privilege if they are prepared or made for the purpose of providing advice to a client: Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353 at [30]; Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 at [34].

36. Mr Johnston submits that TAFE NSW’s claim for legal professional privilege cannot be maintained. He refers to a fact sheet issued by the Information and Privacy Commission which states that:

Legal professional privilege protects confidential communications and confidential documents between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client or for use in current or anticipated litigation.

37. Mr Johnston submits that this information provided by the Information and Privacy Commission determined that legal professional privilege can only be claimed over information that is work produced for the purpose of being used in current or pending litigation. As he entered into a Deed of Release with TAFE NSW in 2016 that extinguished all claims between the parties, there is no basis upon which TAFE NSW could engage in activity that would permit a claim for legal professional privilege.

38. Mr Johnston overlooks the fact that legal professional privilege may attach to a communication or document that was brought into existence for the dominant purpose of enabling the client to obtain, or the lawyer to give, legal advice or provide legal services. This may arise outside the context of litigation. In any event, the privilege also extends to things done in anticipation of litigation, including litigation before the Tribunal: Cianfrano v Director General, Attorney General's Department [2008] NSWADTAP 10 at [5]. The fact that Mr Johnston and TAFE NSW entered into a deed concerning particular litigation does not mean that there may never be a need for TAFE NSW to seek legal advice about other matters relating to Mr Johnston.

37. The important question to be asked is “what was the intended use (or uses) of the document which accounted for it being brought into existence”: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at 366. This is to be determined as a question of fact: Waterford v Commonwealth (1987) 163 CLR 54, 66.

38. Many of the communications the subject of the claim for privilege are addressed to or are written by Legal Counsel employed by TAFE NSW. In the case of in-house legal officers employed in government service, privilege attaches to communications where it can be demonstrated that "the dominant purpose of the communication was the provision of legal advice, and that the legal officer concerned had an appropriate degree of independence": Battin v University of New England [2013] NSWADT 73 at [39]. There is no information before me which would indicate that General Counsel within TAFE is not independent or that communications with clients are generally other than confidential.

39. On the day of the hearing a confidential session was held in which the respondent gave further details of its claim for privilege over various documents. A brief description of the documents over which privilege is claimed is set out in the schedule to the decision. I note that there is a history of litigation between the parties dating back to 2007.

40. Based on my perusal of the documents over which privilege has been claimed and the evidence provided by the respondent, I am satisfied that the communication is either for the dominant purpose of seeking or receiving legal advice, including in the context of anticipated or commenced legal proceedings, that is, proceedings in the Tribunal and potential further litigation in relation to the same matter. I am therefore satisfied that the information is subject to legal professional privilege. I note that TAFE NSW considered whether privilege should be waived and decided that it should not. That is not a matter that is reviewable by the Tribunal.

Imposition of a processing charge and advance deposit

43. In processing Mr Johnston’s access application, TAFE NSW decided to impose a processing charge for dealing with his application. Mr Johnston was provided with an estimate of the processing charge and, after a discount had been applied, was required to pay 50 per cent of the estimate as an advance deposit in the amount of $66.56. Mr Johnston duly paid that sum.

44. In the Notice of Decision dated 18 September 2018, TAFE NSW provided a table which set out details of tasks performed and time spent on processing the access request. The actual time specified was greater than that contained in the earlier estimate. After applying a discount, TAFE NSW requested Mr Johnston to pay the remainder of the processing charges of $158.54. Mr Johnston disputes that amount.

45. A processing charge for dealing with an access application may be imposed under s 64 of the GIPA Act where the cost of processing the application may exceed the application fee. Decisions to impose a processing charge and to require an advance deposit are reviewable under s 80 (j) of the GIPA Act.

46. Section 64 of the GIPA Act provides for a rate of $30 per hour in processing charges and the application fee of $30 counts towards the first hour. Section 67 of the GIPA Act provides that, if an access application is made for personal information about the applicant (the applicant being an individual), the agency cannot impose any processing charge for the first 20 hours of processing time for the application.

47. Mr Johnston does not appear to dispute the amount of time that TAFE NSW states it spent on processing his access request. He does dispute the characterisation of the information as either personal information or non-personal information.

48. TAFE NSW stated that it spent a total of 23 hours processing the access application and that three hours of this time was spent on personal information of Mr Johnston. The remainder of the time was spent on non-personal information. Mr Johnston states that, as his request concerned all information related to his enrolment in the course at Meadowbank, all information he sought related to his personal information.

49. Personal information is defined in clause of Schedule 4 to the GIPA Act to be:

4 Personal information

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual’s name and non-personal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

50. In its decision TAFE NSW set out a careful analysis of the nature of the information located in processing the request. I am also satisfied, based on the documents themselves, that some of the information covered by Mr Johnston’s request comprised information such as policies and procedures etc which is clearly not his personal information. In addition much information comes within cl 4(3)(b) set out above which is not personal information of Mr Johnston.

51. I am not satisfied that Mr Johnston has demonstrated that TAFE NSW has mischaracterised the nature of the information and that it therefore has incorrectly calculated the processing charge it was entitled to impose.

Order

52. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 01 August 2019