Kay v Commissioner, Department of Corrective Services (No. 2)

[2000] NSWADT 67

CITATION:	Kay (No. 2) -v- Commissioner, Department of Corrective Services [2000] NSWADT 67
DIVISION:	General Division
PARTIES:	APPLICANT Michael Kay RESPONDENT Commissioner, Department of Corrective Services
FILE NUMBER:	993177
HEARING DATES:	12 May 2000
SUBMISSIONS CLOSED:	05/31/2000
DATE OF DECISION:	05/31/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	access to documents - Freedom of Information Act - access to documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Kay -v- Commissioner, Department of Corrective Services [2000] NSWADT 34 Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 Mathieson v Burton 1971 CLR 1 Director of Public Prosecutions v Smith (1991) 1 VR 63 Department of Premier and Cabinet v Hulls [1999] VSCA 117 Pratt v Psychologists Registration Board of Victoria (1997/57928) (VCAT) Cowling v Dept of Human Services (1997/44102) (VCAT) Re Titelius and Ministry of Justice [1998] WAICmr 16 Waterford v The Commonwealth, (1987) 163 CLR 54 Louis James Carter v The Managing Partner, Northmore Hale Davy and Leake and Others (1995) 183 CLR 121 Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67
REPRESENTATION:	APPLICANT In person RESPONDENT N Yetzotis
ORDERS:	1. The agency's decision not to disclose the documents in dispute is affirmed.

Introduction

1 This is the second part of the decision in this matter. The applicant, Michael Kay, is a Corrections Officer with the Department of Corrective Services (the agency). He set up his own web-site on the internet. Material on that site was the subject of two investigations by the agency. On 30 April 1999 Mr Kay applied under the Freedom of Information Act 1989 (FOI Act) for access to documents relating to those investigations some of which the agency refused to provide.

2 In the first decision, Kay -v- Commissioner, Department of Corrective Services [2000] NSWADT 34, I found that each of the four documents in dispute (including two copies of Document 3) was an exempt document. The documents were exempt because they came within Clause 10 of Schedule 1 to the FOI Act which relates to documents subject to legal professional privilege. The documents are all memoranda from legal officers within the agency to other employees of the agency.

3 I stood over the matter after making that finding because neither of the parties had made submissions on two outstanding issues. Those issues are, firstly, does the Tribunal have the power to consider whether the agency correctly exercised its discretion under s 25(1) of the FOI Act once it is satisfied that the document is an exempt document. Secondly, if so, did the agency make the correct and preferable decision by refusing to give access to the documents even though it had a discretion to release them?

4 The parties filed further submissions on these issue and the matter was heard on 2 May 2000. At the hearing Mr Kay was not legally represented. The Commissioner of the Department of Corrective Services (the agency) was represented by Mr Yetzotis.

Facts

5 The facts relevant to the documents in dispute are set out in paragraphs 15-22 of the first decision, Kay -v- Commissioner, Department of Corrective Services [2000] NSWADT 34:

In early 1998 Steve Tandy, Superintendent of the Security and Investigations Branch of the agency, was given information concerning Mr Kay's web-site. He wrote to the Professional Standards Branch on 23 February 1998 seeking advice about whether a video clip on the web-site depicting Mr Kay in uniform with an ex-prisoner "requires further attention."

Ms Denise Rushton, a former employee of the agency's Professional Standards Branch, wrote an advice in relation to this issue on 28 April 1998. The advice was adopted by Ms Parmeter, another solicitor within the Branch, and forwarded to Mr Woodham, Senior Assistant Commissioner. The advice was sent to Mr Woodham because he had the relevant delegation in relation to disciplinary matters. 17 Mr Woodham appointed Ian Downes to investigate the matter and, in the mean time, directed Mr Kay to "remove all references to the Department of Corrective Services and your work or position as Correctional Officer with the Department including any references to or images allegedly depicting any riot within a NSW Correctional Centre, from your Home Page."

On 1 June 1998, following the first investigation, Denise Rushton of the Professional Standards Branch prepared a further advice (Document 2). This advice was adopted by another solicitor in the Branch, Debbie Dickenson, and referred to Mr Woodham. Subsequently Mr Woodham directed that Mr Kay be counselled by the Governor, John Bromfield.

On 20 June 1998 Mr Kay asked Ms Lyn Chant, Manager Information Security and Fraud Control of the Audit Branch, to clarify the direction Mr Woodham had given him about what he could put on his web site.

On 28 July 1998, Ms Chant referred Mr Kay's query to the Professional Standards Branch for advice. An advice was prepared by Denise Rushton on 15 September 1993 (Document 3). Again, this advice was adopted by Deborah Dickenson and referred to Mr Woodham who directed that a further investigation be carried out.

Mr Alan Chislom conducted the second investigation which included consideration of whether Mr Kay had breached the direction given to him by Mr Woodham.

The final document over which an exemption was claimed was an advice from Deborah Dickenson, adopted by Margaret Parmeter, dated 25 February 1999 (Document 4). This document was prepared following the second investigation.

Relevant legislation

6 Section 16(1) of the FOI Act gives a person a legally enforceable right to be given access an agency’s documents in accordance with the Act. Section 24 obliges an agency, after considering an application for access to a document, to determine whether access to the document should be given or refused. Section 25 goes on to set out the circumstances in which an agency may refuse access to a document. That section, so far as it is relevant to the issues in this case, provides that:

(1) An agency may refuse access to a document:
(a) if it is an exempt document
(3) An agency shall refuse access to a restricted document that is the subject of a Ministerial certificate.

7 In Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 (Mangoplah) the Tribunal came to the view that the effect of these provisions is that there is no mandatory duty on an agency to refuse access whenever one of the grounds of refusal is satisfied. The Tribunal said at [14] and [16] that:

The general effect of these provisions is to impose a duty to make a determination on the giving or refusing of access as provided by s 24. Section 25(1) then provides the grounds on which access may be refused. Absent a decision to invoke one of these grounds, the decision-maker is obliged to give effect to the "legally enforceable right" of access conferred by s 16. In this context, in my opinion, the use of "may" in s 25(1) means that there is no mandatory duty to refuse access whenever one of the grounds for refusal is capable of being satisfied. In relation to paragraph (a), this means that a discretion is given whether or not to release a document which is found to be an exempt document.

It follows that a decision-maker who cannot invoke another of the grounds for refusing access listed in s 25(1) is obliged to consider whether a document falls within an exemption provision. He or she cannot refuse access if it does not. If it is exempt, and is not a restricted document which is the subject of a Ministerial certificate, he or she must also consider whether it is consistent with the objects of the Act for the agency to rely upon the exemption and refuse access. If refusal of access appears not to be justified in the broad context of the Act, then the exempt document must be released.

8 As I understand Mr Yetzotis’ submissions, he accepted that the agency does have a discretion as outlined above. However he argued that the Tribunal cannot take into account the existence of that discretion when determining whether the agency made the correct and preferable decision. Alternatively, Mr Yetzotis submitted that if the Tribunal can take that discretion into account, it should not set aside the agency’s decision in this case.

The Tribunal’s powers

9 The Tribunal has the power to hear this matter under s 53(1) of the FOI Act. That section states that

A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination.

10 Since the agency refused to give Mr Kay access to certain documents, he is an aggrieved person pursuant to s 53(3)(a)(i). The determination of the agency is a "reviewable decision" under s 8 of the Administrative Decisions Tribunal Act 1997 (ADT Act). In this case, Mr Kay has applied to the Tribunal for a review of this decision under s 55 of the ADT Act.

11 Section 63 of the ADT Act sets out the Tribunal’s powers when reviewing a reviewable decision such as the decision in this case to refuse to give Mr Kay access to certain documents. That section states that:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

12 Significantly, section 63(1)(b) obliges the Tribunal to determine the correct and preferable decision having regard to any applicable written law. On the face of it, such a law is s 25(1) of the FOI which, among other things, confers a discretion on the agency to give access to an exempt document. Consequently, in determining whether the agency made the correct and preferable decision, the Tribunal appears to be obliged to take into account the provision giving the agency a discretion to give access to an exempt document. The Tribunal must then make a determination to vary or set aside the agency’s decision if the Tribunal takes the view that the discretion should have been exercised in the applicant’s favour. This view is supported by the following comments in Mangoplah at [84] to [85]

The substantive function of the Tribunal provided by s 63(1) of the ADT Act is "to decide what the correct and preferable decision is having regard to the material then before it, including ... any applicable ... law". In effect, this provision adopts jurisprudence developed in relation to the Commonwealth Administrative Appeals Tribunal, and requires the Tribunal to address the merits of the decision made by the primary decision-maker by reference to the same legal parameters as governed the primary decision (c.f. Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 per Bowen CJ and Deane J at 68, Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18 - the change from "correct or preferable" is, in my opinion, without significance).

Consistent with this jurisprudence, absent any special limitation on the Tribunal's review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act - indeed the duty - when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it.

13 This view of the legislation was challenged by the agency on several grounds which are dealt with below.

Legislative history

14 In Mangoplah some of the relevant legislative history of merits review of decisions under the FOI Act was set out at [77] and [82]. Having determined that at least one document in dispute in that case was an exempt document, the Tribunal turned to the question of the so-called “override discretion”.

77 Prior to the transfer of external review jurisdiction from the District Court to this Tribunal . . . section 55 of the FOI Act conferred a merits review function on the District Court, but expressly excluded from the Court's consideration the exercise of the override discretion. In a provision repealed at the time of transfer, it said:

55(5) This section does not operate so as to enable the District Court to determine that access to an exempt document is to be given.

82 The amendments to the FOI Act which replaced Division 2 of Part 5 also addressed some special procedural aspects of the Tribunal's review proceedings in FOI matters. In my opinion none of these is to the effect of the repealed s 55(5). What appears now as s 55 was previously s 55(6), and addresses a different concern. A special modification to the Tribunal's usual substantive review power was included, but this related only to its consideration of restricted documents (see s 57(1)).

15 The Tribunal’s conclusion on this issue in Mangoplah is set out at [83]:

In my opinion the amendments to the FOI Act suggest that Parliament expected that the Tribunal otherwise would perform its usual function of merits review as provided by the Administrative Decisions Tribunal Act. An inference arises from the repeal that it intended that external merits review should no longer be restrained by the previous special limitation (c.f. Mathieson v Burton (1971) 124 CLR 1 at 26).

16 In opposing this view, Mr Yetzotis first relied on the High Court case of Mathieson v Burton 1971 CLR 1 at 26. He quoted the following passages:

. . . it is permissible to have regard to a repealed portion of an Act for the purpose of construing what remains . . .” (per Gibbs J at p 26)

The question is, What does the Act as amended mean ? and, in ascertaining that, regard may sometimes be had to provisions that have ceased to exist, for they may have stablished (sic) the meaning of words that remain. (per Winderyer J at p 15)

17 Mr Yetzotis’s submissions as I understand it, is that the existence s 124(1) and (2) were enacted to replace the old section 55(5). This section is dealt with further below.

Effect of s 124 of ADT Act

18 Section 124 of the ADT Act deals with the application of the ADT Act to exempt documents under the FOI Act. It states that:

(1) General rule
except as provided by this section, nothing in this Act requires or authorises any person or body to disclose any exempt document to another person or body.

(2) Disclosure to person or body other than Tribunal
The provisions of the Freedom of Information Act 1989 continue to apply to the disclosure of exempt documents to any person or body other than to the Tribunal as if this Act had not been enacted.

(3) Disclosure to Tribunal
If a provision of this Act requires or authorises any person or body to disclose any document to the Tribunal in relation to any proceedings before it and that document is an exempt document:

(a) the Freedom of Information Act 1989 does not prevent the disclosure of the document to the Tribunal, and
(b) the Tribunal is to do all things necessary to ensure that the document is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the proceedings unless the person or body disclosing the document to the Tribunal consents to the further disclosure.
(4) Certificates by Director-General of The Cabinet Office concerning cabinet documents
The Director-General of The Cabinet Office may certify that a document is an exempt document because it is a cabinet document. Any such certificate:
(a) is conclusive of that fact, and
(b) authorises any person who would otherwise be required under this Act to lodge the document concerned with (or disclose it to) the Tribunal to refuse to lodge the document with (or disclose it to) the Tribunal.
(5) Definitions
In this section:
disclosure of a document includes the following:
(a) the provision of copies of the document,
(b) the granting of access to the document,
(c) the disclosure of the contents of the document.
document includes a part of a document
exempt document means an exempt document within the meaning of the Freedom of Information Act 1989.

19 Mr Yetzotis’ submission was that s 63 of the ADT Act ceases to operate once the Tribunal is satisfied that a document is an exempt document. He submitted that:

The practical consequences of the effect of subsections (1) and (2) (of s 124 of the ADT Act) is that section 63 of the ADT Act ceases to operate at the point in time when the Tribunal becomes satisfied that the subject documents are exempt documents. Exactly as the repealed section 55(5) of the FOI Act came into operation in each case at the point in time when the court became satisfied that the subject documents were exempt.

Furthermore, pursuant to sub-section 124(2), all of the provisions of the ADT Act cease to operate at that point in time.(Words in brackets added.)

20 The Tribunal in Mangoplah considered the scope and intention of s 124 at [87] and [88]:

There are some difficulties in deciding the scope and intention of this provision. The Explanatory Notes do not assist. The section is not, in its terms, directed at placing a special limitation on the Tribunal's review function in its FOI Act jurisdiction. In its context and terms it appears to be directed at procedures common to all jurisdictions and at preserving the operation of the FOI Act in areas of government which may become involved in any of Tribunal's jurisdictions. Its objective is to prevent parties using an application to the Tribunal to circumvent the procedures for obtaining access to documents under the FOI Act. Section 124(3) provides an agency with a special ground for resisting inspection of exempt documents produced to the Tribunal pursuant to ss 58 and

The Tribunal, when determining under s 63 an application for review of a determination under ss 24 and 25 of the FOI Act, is not considering the exercise of a power found in the ADT Act but the exercise of a power conferred by the FOI Act. It is the FOI Act and not the ADT Act which authorises a determination to disclose an exempt document. If the Tribunal determines that the previous exercise of that power did not produce the "correct and preferable" decision, and directs under s 63(3)(d) that the decision-maker substitute a decision for release, then it is not invoking a power of disclosure given by the ADT Act. Nor in my opinion, would it be doing so if pursuant to s 63(3)(c) it decided to set aside the reviewable decision and substitute a decision for release of the document. If either of these actions can be described as an exercise of a power of disclosure, then that power of disclosure is a power found in the FOI Act. The Tribunal is not exercising a power of disclosure "required or authorised" in a provision of the ADT Act within the language or intent of s 124.

21 For the reasons set out above in Mangoplah, I do not accept MrYetzotis’ submission on the effect of s 124.

Legal Professional Privilege

22 Section 125 of the ADT Act relates the application of the ADT Act to privileged documents:

(1) Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995:
(a) section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence,
(b) section 10 (Parliamentary privilege preserved),
(c) Part 3.10 (Privileges) of Chapter 3.
(2) In this section:
disclosure of a document includes the following:
(a) the provision of copies of the document,
(b) the granting of access to the document,
(c) the disclosure of the contents of the document.
document includes a part of a document.

NSW court has the same meaning as it has in the Evidence Act 1995.

23 Part 3.10 of Chapter 3 of the Evidence Act 1995 relates to client legal privilege.

24 Mr Yetzotis submitted that s 125 of the ADT Act denies the Tribunal the power to require or direct disclosure of a document with respect to which it is satisfied that legal professional privilege applies. Mr Yetzotis maintained that parliament could not have intended to create two different rules, one preventing the disclosure of privileged documents under s 125 and another allowing disclosure under s 63 if the document was the subject of an FOI application.

25 Despite MrYetzotis’ submission, disclosure of documents under the FOI Act is not allowed under s 63 of the ADT Act, but under the FOI Act. As with s 124, s 125 only applies to the provisions of the ADT Act. Since it is not the ADT Act which requires the disclosure of certain documents the same reasoning set out in Mangoplah at [88] applies to s 125.

Protection of decision makers on release of documents

26 In Mangoplah, the Tribunal raised and rejected an argument that the discretion to release an exempt document does not exist or should not be exercised because the protection of decision-makers from actions for defamation or breach of confidence would not apply. The Tribunal said at [18] that:

. . .. This, in my opinion, misunderstands the effects of ss 64, 65 and 66, (of the FOI Act) which are not so limited but arise in every case where "access to a document is given pursuant to a determination under this Act". A decision not to claim an exemption but to release an exempt document in response to an application made under the FOI Act must, in my opinion, be a "determination under this Act". (Words in brackets added.)

27 MrYetzotis did not make any submissions which sought to challenge this conclusion and I accept it.

Conclusion

28 I agree with the analysis and conclusions set out in Mangoplah. Based on the reasoning set out above, I have a duty to consider whether, despite a finding that the documents are exempt documents under the FOI Act, the agency made the correct and preferable decision in refusing to give Mr Kay access to them.

Consideration of the “override” discretion

29 A brief examination of relevant case law in other jurisdictions may be useful in determining the nature and scope of the “override” discretion in New South Wales.

30 Under s 50(4) of the Victorian Freedom of Information Act 1982 the Victorian Civil and Administrative Tribunal (VCAT) has power to grant access to an exempt document, including a document covered by legal professional privilege. Section 50(4) of the Victorian legislation states that:

On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

31 This power differs from the discretion under s 25(1) in two significant respects. Firstly, it is confined to public interest as distinct from the interest of an individual or individuals. (Director of Public Prosecutions v Smith (1991) 1 VR 63 at 75). There is nothing in the New South Wales FOI provisions which so limits an agency’s discretion. Secondly, VCAT must be of the opinion that public interest considerations require disclosure. In Department of Premier and Cabinet v Hulls [1999] VSCA 117 at [33] the Victorian Court of Appeal interpreted “requires” as “demands” or “necessitates.” The discretion in s 25(1) of the FOI Act is not restricted in this way.

32 The leading Victorian case is the Court of Appeal decision in Director of Public Prosecutions v Smith (1991) 1 VR 63. In that case the Court of Appeal decided that the public interest required disclosure of a particular document which would otherwise have been the subject of legal professional privilege. A brief summary of the decision in Smith’s Case is set out in Just v Department of Justice (1995/27499) where the former Administrative Appeals Tribunal of Victoria stated that:

In Smith's case it was alleged that a hotelier had been defrauded by his solicitor. Many years later, a police officer sought to charge another solicitor who had assisted the original solicitor as an articled clerk in the impugned transaction. The prosecuting authorities declined to lay charges and the officer secured the summoning of a grand jury for the first time in Victoria since 1940. The grand jury sent the solicitor for trial. The prosecuting authorities terminated the prosecution by nolle prosequi. In those exceptional circumstances Judge Higgins found that the public interest required disclosure of the legal advice which led the prosecuting authorities to act as they did. The Full Court upheld His Honour's decision.

33 In another case decided under s 50(4) of the Victorian legislation, Pratt v Psychologists Registration Board of Victoria (1997/57928), Mr Pratt sought access to documents some of which were subject to legal professional privilege. The documents were before the Psychologists Registration Board of Victoria and related to the investigation by that Board of a complaint made by Mr Pratt against a psychologist. Mr Pratt sought these documents to evaluate the correctness or otherwise of the Board's decision in finding that there was no evidence of any impropriety by the psychologist in the circumstances. His Honour Judge Wood made the following observations:

The issue for determination is therefore, whether the public interest based upon legal professional privilege whereby the Board can give instructions freely and advice may be given freely without inhibition or circumspection is outweighed by the public interest that the Board conduct its proceedings in a fair manner to Mr Pratt in particular and to the public in general.

Baker v Campbell (1983) 153 CLR 52, DPP v Smith (1991) 1 VR 63, Re Chadwick, and Re Perton and Attorney General's Department (1992) 5 VAR 302, are all cases which recognise the principle that legal professional privilege itself is based upon public interest and postulate that weighty public interest factors would be required to countervail the doctrine of legal professional privilege in the balancing process which must take place when the Tribunal considers the operation of s.50(4).

Circumstances generating public interest and controversy, which operated in favour of release of documents under s.50(4), notwithstanding clear legal professional privilege (and thus exemption under s.32 of the Act as obtained in Smith's case) pertaining to the administration of the criminal justice system and the question of its operation as was raised in the Legislative Assembly of this State; public concern as to the integrity of the democratic process with the attendant questioning of the integrity of the electoral system and the independence of the office of the Chief Electoral Officer (as obtained in Chadwick's case); and the conduct of a Minister of State and the propriety of the expenditure of public funds by way of compensation for alleged improper conduct (as was the case in Perton) serve to illustrate that the term "public interest" embraces broader matters and considerations than the interests of a member of the public.

34 Wood J concluded that the public interest does not require that the documents in question be made available to the applicant.

35 Similarly in Cowling v Dept of Human Services (1997/44102) the VCAT decided not to release documents which were subject to legal professional privilege. Two considerations, in particular, were taken into account:

The fact that the issues canvassed in the said documents can be litigated . . . militates against a conclusion that the public interest requires that access should be granted to any of them. Furthermore, any conclusions expressed in any of the said documents may be right or wrong and this circumstance also in my opinion militates against a conclusion that the public interest requires that access should be granted to any of them.

In this regard, the present case is distinguishable from DPP v Smith (supra) where it was the mere existence of the legal advice that the available evidence in a proposed prosecution was so inadequate as to justify the entry of a nolle prosequi (see p.70) and not whether such advice was right or wrong which was crucial to the conclusion in that case that the public interest did require that access to it should be granted.

36 The Western Australian Information Commissioner has also discussed the circumstances where a document otherwise subject to legal professional privilege should be disclosed. In Western Australia, pursuant to s 3(3) of the Freedom of Information Act 1992 an agency has the sole discretion to give access to documents which are technically exempt. In Re Titelius and Ministry of Justice [1998] WAICmr 16 (10 June 1998), the applicant was investigated and charged with having committed a disciplinary offence under the Public Sector Management Act 1994 (WA).The documents in question included letters, memoranda and file notes passing between the Director General of the agency and the Crown Solicitors Office.

37 The Commissioner expressed the view in Titelius, which was not binding on the agency, that the agency should have exercised its discretion and allowed the complainant access to the documents. The Commissioner reasoned that the applicant was still an employee of the agency and “allowing an aggrieved employee access in the manner proposed by the complainant would . . . be consistent with good human resource management practice.” The Commissioner considered that no demonstrable harm would be likely to follow from granting limited access in the form of inspection only. He also concluded that because the complainant has difficulty understanding the course of events, access may well assist him to understand the actions taken by the agency.

The override discretion in New South Wales

38 Mr Yetzotis submitted that the agency should not have exercised its discretion under s 125(1) to give access to the documents in question because the doctrine of legal professional privilege is itself the result of a balancing of public interest and other considerations. As the balancing exercise has already been conducted, there can be no further justification for overriding legal professional privilege.

39 Apparent support for this proposition can be found in several cases including Waterford v The Commonwealth, (1987) 163 CLR 54 at 64-65. In that case the High Court considered the issue of whether the Commonwealth could claim legal professional privilege over documents containing legal advice obtained from within the Government and concerned with FOI proceedings pending in the Administrative Appeals Tribunal. In describing the nature of the exemption for documents which would be privileged from production in legal proceedings on the ground of legal professional privilege, Mason and Wilson JJ stated at [8] that:

Legal professional privilege is itself the product of a balancing exercise between competing public interests whereby, subject to the well-recognized crime or fraud exception (cf. Reg. v. Bell; Ex parte Lees (1980) 146 CLR 141), the public interest in "the perfect administration of justice" (per Earl of Halsbury L.C. in Bullivant v. Attorney-General (Vict.) (1901) AC 196, at p 200) is accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence. Given its application, no further balancing exercise is required.

40 In Louis James Carter v The Managing Partner, Northmore Hale Davy and Leake and Others (1995) 183 CLR 121 the High Court considered the question of whether persons having in their possession or power documents which are subject to legal professional privilege can be compelled to produce those documents on subpoena. In that case the subpoena was issued on behalf of an accused person in criminal proceedings and were sought in the expectation that they may establish the innocence of the accused or may materially assist his defence. The Court held that a person subject to criminal prosecution could not by subpoena compel the production of documents which were the subject of a claim for legal professional privilege by a third party, even though those documents might establish the innocence of the accused or might materially assist his defence. Deane J. remarked at 133 that:

Where legal professional privilege attaches, there is no question of balancing the considerations favouring the protection of confidentiality against any considerations favouring disclosure in the circumstances of the particular case.

41 These cases can easily be distinguished from the present proceedings because they did not concern the nature or scope of a discretion to release otherwise exempt documents. Consequently I do not accept Mr Yetzotis’ submission that there can be no further balancing exercise in this case.

42 In Mangoplah the Tribunal set out its view of the nature of the “override discretion” in general terms at [90] and [91]. I agree with this analysis.

The decision-maker must decide whether there is something about the information itself or the surrounding circumstances which, bearing in mind the objects of the FOI Act and the rationale for any exemption which has been satisfied, persuades him or her that the exemption should not be claimed. The touchstone is whether withholding the document is "reasonably necessary for the proper administration of the Government" (s 5(2)(b)).

Framing the question in this way produces a need to locate special or overriding circumstances or interests before an exempt document is released, but only in the sense that some reason particular to the circumstances should be found for not claiming the exemption.

Application of the discretion in this case

43 In many cases, the public interest dichotomy is between encouraging full and frank disclosure by clients to their lawyers and denying access to relevant information in the context of litigation. This tension was expressed in Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67 (21 December 1999) when the High Court said, at [35] that:

As Deane J expressed it in Baker v Campbell , a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information.

44 There are no proceedings on foot in this case and no argument from Mr Kay that the documents in question are relevant to any issues in dispute in any proceedings. Mr Yetzotis submitted that although the investigation which gave rise to the documents in issue has been completed, there is no guarantee that the issues arising in the investigation will not be subject to litigation in the future. I accept that this is a remote possibility and agree that the fact that the issues canvassed in the disputed documents could be litigated in the future tends to support the argument for secrecy.

45 Mr Kay’s argument is that he has concerns about the way the investigation into his web site was run. He believes that those investigations and the subsequent directions were not justified. For example he says he was given directions before the first investigation was completed. He is also concerned about the cost of the advice to taxpayers. Given that the officers in question are all public servants, their actions should be transparent and accountable to members of the public. Mr Kay submitted that there was no disadvantage to the agency in disclosing the documents.

46 The tension in this case is between the public interest in the agency being able to freely seek legal advice from its in-house lawyers and the public interest that the agency conduct its proceedings in a fair manner to Mr Kay in particular and to the public in general.

47 As a general rule, keeping documents secret which are covered by legal professional privilege, is necessary for the proper administration of government. It facilitates representation by legal advisers, induces government agencies to retain solicitors and seek their advice and encourages them to make a full and frank disclosure of the relevant circumstances to the solicitor. The circumstances of this case which are said to override this consideration are that disclosure would tend to reveal whether the agency has acted fairly in relation to the investigation of Mr Kay’s activities.

48 This case is very similar to the facts in Re Titelius and Ministry of Justice [1998] WAICmr 16 (10 June 1998). Like the applicant in that case, Mr Kay is still an employee of the agency and there is some force in the Western Australian Commissioner’s assessment that allowing an aggrieved employee access to documents, even if only by inspection, would be consistent with good human resource management practice. Such a gesture may have assisted Mr Kay to understand the agency’s processes and reasoning in the conduct of the investigation.

49 However, in my view, this is not a weighty enough consideration to override the public interest considerations inherent in the legal professional privilege exemption. Consequently, the agency’s decision not to disclose the disputed documents to Mr Kay is affirmed.