LMKY and Indigenous Business Australia (Freedom of Information)

[2022] AATA 428

LMKY and Indigenous Business Australia (Freedom of Information) [2022] AATA 428 (28 January 2022)

Division	GENERAL DIVISION
File Number(s)	2019/6189, 2019/8738, 2019/8737, 2019/8736, 2019/8735
Re	LMKY
APPLICANT
And	Indigenous Business Australia
RESPONDENT

DECISION

Tribunal	Senior Member Damien O’Donovan
Date	28 January 2022
Place	Canberra

The decisions under review are varied such that the documents annexed to this decision should be released to the applicant in the form attached.* The decisions in relation to FOI Requests FOI Request 18/248 and FOI Request L18/127 are otherwise affirmed.

…..(sgd)…….

Senior Member Damien O’Donovan

*Documents annexed to this decision can be requested by contacting the Administrative Appeals Tribunal.

Catchwords

Freedom of Information - legal professional privilege - s 42 - legal invoices - file notes – whether decision to withhold disclosure of invoices and file notes appropriate in circumstances – decisions under review varied.

Legislation

Evidence Act 1995 (Cth)
Freedom of Information Act 1982 (Cth) ss 11A, 11S, 22, 24A, 42, 42(2), 47F, 54A, 54L, 54W

Privacy Act 1998 (Cth) s 6

Cases

Attorney-General (NT) v Maurice (1986) 161 CLR 475
Carey v Korda [2012] WASCA 228
Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3
Commonwealth v Dutton [2000] FCA 1466
Construction, Forestry, Mining and Energy Union v De Martin & Gasparani Pty Ltd (No 2) [2017] FCA 1046
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49
Hancock v Rinehart (Privilege) [2016] NSWSC 12
Hammond v Quayeyeware Pty Ltd [2021] FCA 293
Mann v Carnell (1999) HCA 66

REASONS FOR DECISION

Senior Member Damien O’Donovan

1. The applicant in this matter is seeking review of a number of decisions made by Indigenous Business Australia (IBA) in relation to five requests for access to documents made under the Freedom of Information Act 1982 (‘the Act’).

2. IBA made access refusal decisions at first instance and upon internal review.

3. The applicant subsequently lodged applications for review with the Office of the Australian Information Commissioner (OAIC) for a review of the respondent’s refusal decisions. The Information Commissioner decided not to undertake a review of those decisions pursuant to s 54W of the Act. The applicant then sought review by the Tribunal under s 57A(1)(b) of the Act. The exemptions which the applicant contested are the subject of AAT proceeding numbers 2019/6189, 2019/8738, 2019/8737, 2019/8736, 2019/8735. The parties have consented to the Tribunal determining the matter without a hearing and I am satisfied that the review can be adequately determined in the absence of the parties, and have proceeded to do so.

4. In order to conduct the reviews, it is convenient to divide up the decisions by the request numbers used by the original decision maker.

   FOI Request 18/167-2 and 3

5. On 13 February 2018 the applicant made a lengthy request for documents under FOI to IBA. The request covered a wide range of topics which were broadly related to delegations, procurement and recruitment processes, employment and other HR matters. The categories were numbered 1-11 in the original request and two further requests were added in a follow-up email.  IBA identified a number of documents as falling within the request. No documents falling within categories 7-11 were found. Seven documents falling within categories 1-6, 12 and 13 were identified. Three were released in full, three were released in part and access to one document was refused.

6. The applicant sought review of the decision to exempt in full what became known as document 2, which was described as an internal IBA email and Procurement Expenditure Approval Template.  The applicant also sought review of the decision to release only part of what became known as document 5 which was described as Recruitment Process Cover Sheet.

7. On internal review a small amount of additional material in document 5 was released but some exemptions were maintained. Exemptions from disclosure were also maintained in relation to the whole of document 2.

8. The applicant then applied for review to the OAIC. In relation to Document 2 the applicant appealed the decision to exempt staff names and team/position/title and the name of the contractor in the document.

9. In relation to Document 5 the applicant sought review of the decision to exempt the names of the Interview Panel, the name of the new starter’s supervisor and the name of the new starter.

10. As noted above the OAIC decided not to undertake a review and a series of applications to the Tribunal followed.

11. On 29 January 2021, as part of the review by this Tribunal, the respondent filed a Statement of Facts, Issues and Contentions (RSFIC). The respondent noted that it did not press the disputed exemptions claimed in relation to Document 2 and 5. Copies of the documents disclosing the information which was the subject of the applicant’s application for review to the OAIC were annexed to the RSFIC. Copies of those documents are annexed to this decision and identified as schedule 1. I note that those documents include other redactions which were not the subject of contest at the reviewable decision stage.

12. That concession by the respondent disposes of the matters in dispute in relation to FOI Request 18/167-2 and 3.

    FOI Request 18/248

13. On 8 March 2018, the applicant made an FOI request to the respondent for:

    (a)  all invoices for the advice of King & Wood Mallesons provided in relation to the termination of the applicant’s employment including the general protections hearing;

    (b)  all invoices for the advice of Clayton Utz in relation to any case involving the applicant including letters etc;

    (c)   all invoices for the advice and other services provided to IBA by Minter Ellison;

    (d)  all invoices from Dr Shaikh in relation to any matter; and

    (e)  any other invoices not mentioned above, in relation to services procured for matters in relation to the applicant.

14. On 7 May 2018, the respondent advised the applicant it had identified 30 documents which fell within the scope of her request. The respondent decided to grant the applicant full access to 5 documents and grant her partial access to 25 documents. Within those 25 documents, the respondent identified material which was exempt under ss 42, 47 and 47F of the FOI Act.

15. The 25 documents were tax invoices for legal services provided to the Respondent by the Australian Government Solicitor, King & Wood Mallesons, Clayton Utz and Minter Ellison, all of which were subject to legal professional privilege and exempt from disclosure under s 42.

16. The tax invoices contained information about the firm’s fee structures. The respondent determined that the hourly charge-out rate and the amounts billed and time spent on an amount billed were both commercially valuable information and therefore exempt under s 47(1)(b).

17. The respondent determined that the Clayton Utz and Minter Ellison tax invoices contained the names and direct contact details of legal staff - information which was not publicly available or well known, and therefore conditionally exempt under s 47F of the Act. With reference to the public interest test, the respondent found that disclosing that information was not necessary to achieving the objectives of the Act, and that the prejudice to the protection of the relevant individuals’ right to privacy was a strong public interest factor against disclosure.

18. On 15 May 2018, the applicant applied for internal review of the decision in the following terms: ‘Specifically I request a review of the decision to redact the total amount billed on all invoices except the invoice on page 80, under S 47, and the general descriptions of service (not billable hour descriptions) on each invoice under S 42 [sic].’

19. On internal review, the respondent affirmed its original decision.

20. In the RSFIC, the respondent advised that it no longer pressed a number of exemptions. In particular, the claim that the total amount billed in each invoice was exempt was dropped as was the claim that the general description of the services provided were exempt.

21. The prepared a new set of redacted documents to reflect its change of position. They are annexed as Schedule 2. As a result of this change of position the matters in issue narrowed considerably.

22. The issue which remained outstanding was access to a series of cover letters[1] to invoices for legal services prepared by law firm Clayton Utz (‘the cover letters’).

    [1] RSFIC, 13.1.

23. The respondent’s access refusal depends on the contention that the cover letters are subject to legal professional privilege and are therefore exempt from disclosure pursuant to s 42 of the Act.[2] The applicant does not address this question directly. She contends that the documents contain information relevant to the circumstances surrounding her termination from the IBA as well as ‘public interest’[3] concerns and seeks the documents on that basis. There is however no public interest test in relation to s 42. If the documents in dispute are privileged then they are exempt from production. I consider the claimed privilege exemption below.

    [2] RSFIC, 13.1-13.2.

    [3] ASFIC, 3.

    FOI Request L18/33

24. On 26 June 2018, the applicant made another request for documents under FOI to IBA. Specifically, the applicant requested what is described as the ‘employment coversheet completed by commencing staff’. In her request the applicant specified that

    (a)the relevant part of the coversheet was on disability and medical conditions;

    (b)that identifying information was not required; and

    (c)the information was required for 10 employees who commenced work at IBA between 2016 and 2018.

25. The IBA identified ten documents consisting of 30 pages which satisfied the terms of the applicant’s request. The IBA decided to grant the applicant only partial access to the documents responsive to her request on the basis that they contained information which is exempt. The IBA found that the relevant documents contained information which was conditionally exempt and access to that information would be contrary to public interest. Irrelevant information was deleted pursuant to s 22(2) of the Act.

26. Pursuant to s 47F of the Act, the IBA determined that the responsive documents were exempt from release because it would have been contrary to public interest to release them, on the basis that it would involve an unreasonable disclosure of personal information as defined by s 6 of the Privacy Act 1988 (Cth),

27. On 21 August 2018, the applicant sought internal review of the decision as the documents produced did not contain the answers to the medical condition questions, as specified in her initial request.  On internal review, the IBA affirmed its original decision to only partially release the responsive documents.

28. In the course of the review in this Tribunal the respondent included in its RSFIC a number of concessions. The respondent advised that it did not press the exemption claimed in relation to the entry against the term ‘disability’ in the ten documents. Copies of the documents reflecting that position were provided to the Tribunal and are annexed to this decision and identified as Schedule 3. That disposes of the matters in dispute in relation to request L18/33.

    FOI Request L18/127

29. On 5 July 2018, the applicant made a request for documents in relation to two file notes,[4] potentially disclosable under request number L18/127 of 5 July 2018, prepared following a teleconference between the respondent and a lawyer from law firm King & Wood Mallesons (‘the file notes’). Specifically, the applicant requested:

    (a)  Item 1: ‘All filenotes or other documents of communication with Wasim Shaikh’; and

    (b)  Item 2: ‘All filenotes of conversations between the IBA HR team at the time of these events occurring, and any other individual discussing my termination and the refusal to let me return to work including medical experts and IBA executives of the time.’

    [4] RSFIC, 13.2.

30. In relation to Item 1, the IBA decided to refuse the request under s 24A of the FOI Act on the basis that no such documents existed.

31. In relation to Item 2, the IBA identified two documents consisting of 4 pages in total which satisfied the terms of the applicant’s request. The applicant was refused access to the identified documents under sections 11A(4) and (5) of the Act on the basis that they were exempt documents for the purposes of Part IV of the FOI Act. It was determined that the identified documents were created by a lawyer within IBA in the course of giving legal advice and acting as a professional legal adviser and as such, were covered by legal professional privilege.

32. On 20 August 2018, the applicant sought internal review of the decision on the basis that she did not believe that the documents met the criteria for legal professional privilege. On internal review, the IBA affirmed the original decision. The decision was affirmed on internal review. The applicant sought review by the AOIC and ultimately, this Tribunal. The respondent contends that the four pages of Item 2 are exempt documents on the basis of legal professional privilege. I consider this claim below.

    FOI Request L18/93

33. On 11 July 2018, the applicant made a request for documents under FOI to IBA for the supporting documentation for the procurement of Rhea Stephenson as a contractor for IBA SIS team in 2016.

34. The IBA identified one document consisting of 3 pages which satisfied the terms of the request. Access to that document was refused under s 11A(5) of the Act on the basis that the document consisted of information which was conditionally exempt for the purpose of Part IV of the Act. The IBA determined that the document contained information which reveals deliberative processes in respect of procurement matters and the implementation of policies which is a function of the agency. It also found that it would be contrary to public interest to release that information as it would inhibit the frankness and candour of internal workings in relation to a particular process of the agency.

35. The IBA found that the document did not contain any personal information of the applicant and therefore the public interest ground had no weight in the decision to release the document. The IBA identified that the document contained information relating to the management and assessment of agency personnel and contractors.

36. The IBA determined that the document was exempt from release because it would involve an unreasonable disclosure of personal information which would be against the public interest pursuant to s 47F. In its decision, the IBA noted that the practicability of linking pieces of information to identify certain individuals was high in relation to the document and the document contained information about individuals which was more than basic identifying information and did not contain the applicant’s personal information. As such, the IBA concluded that it would be unreasonable to release the personal information contained within the document, particularly given the confidential context in which it was provided.

37. On 20 August 2018, the applicant sought internal review of the decision on the basis that revealing the name of the contractors hired for this role would be, on balance, in the public interest. The applicant stated that she did not require any deliberative process material, ‘only… the names of IBA employees involved in the process and the named contractors’. On internal review, the IBA varied the original decision and decided to grant the applicant partial access to certain information contained in the documents pursuant to s 11A(5). The IBA determined that the document contained information which revealed deliberative processes in respect to procurement maters and the implementation of policies which was a function of the agency however there was certain factual information contained within the document which could be separated from the deliberative process information. On that basis, part of the document was released. On 20 November 2018, the applicant sought review by the OAIC and ultimately the matter became subject to review by this Tribunal.

38. In the RSFIC, the respondent advised it did not press the exemption for the names of the respondent’s employees and the name of the contractor contained in the document. A redacted version of the documents reflecting the position was produced to the Tribunal. A copy is annexed and identified as Schedule 4 to this decision. That disposes of the matters in dispute in relation to FOI Request L18/93.

    The Respondent’s Privilege Claims

39. The issues which remain to be determined are:

    (a)In relation to FOI Request 18/248, whether the Clayton Utz cover letters contain material exempt from disclosure on the basis that it is subject to legal professional privilege; and

    (b)Whether two file notes, made on 27 October 2015 and 18 January 2016 responsive to FOI Request L18/127 are exempt from disclosure on the basis that they are subject to legal professional privilege.

    LEGISLATION

40. Section 42 relevantly provides as follows:

    (1)  A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

41. This general exemption from production contained in s 42(1) is conditional, however, on the claim to privilege not having been waived under s 42(2):

    (2)  A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.

    LEGAL PROFESSIONAL PRIVILEGE UNDER THE ACT

42. It is accepted that under the Act, it is the common law conception of legal professional privilege that is to be applied when considering a s 42 claim.[5] This conception of legal professional privilege is the source for, but distinct from, the statutory conception of the privilege codified in the Evidence Act 1995. 

    [5] Commonwealth v Dutton [2000] FCA 1466, [2], [22].

43. At common law, legal professional privilege allows a person to resist the giving of information or the production of a document, if doing so would reveal confidential communications between a client and his/her lawyer, made for the dominant purpose of giving or obtaining legal advice or the provision of legal services in relation to actual or anticipated legal proceedings.[6] This privilege extends to any document from which the nature or substance of the privileged communication may be gleaned.[7]

    [6] Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 123; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [9].

    [7] Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3.

    VIEWING THE MATERIAL

44. The Tribunal has, considering the circumstances of this particular case, determined that it is necessary to view the documents themselves rather than rely solely upon the submissions of the parties as to the nature of the documents.

45. Whilst it may be generally preferable for the Tribunal to refrain from viewing the documents,[8] I have approached this matter based on the  reasoning adopted by Justice Brereton in Hancock v Rinehart (Privilege),[9] which makes clear that inspection of documents the subject of a claim is permissible to ‘provide a means of enabling a claim to be scrutinised and tested’.[10] In viewing the documents I sought to satisfy myself as to the nature and contents of the documents in dispute. I have viewed both the cover letters and the file notes in making my decision on their status.

    THE COVER LETTERS

    [8] See, for instance, Construction, Forestry, Mining and Energy Union v De Martin & Gasparani Pty Ltd [2017] FCA 1046.

    [9] Hancock v Rinehart (Privilege) [2016] NSWSC 12.

    [10] Ibid, [31].

    FOI Request 18/248

1. The respondent’s claim for privilege over the Clayton Utz covering letters rests on the claim that these invoice cover letters would reveal ‘the nature of confidential communications between lawyer and client’ - specifically the respondent’s instructions and law firm Clayton Utz’s subsequent advice.[11] On this ground, the respondent contends that the cover letters are exempt from production under s 42(1). The applicant’s response is that the disclosure of these documents would ‘provide insight into the levels of public expenditure’[12] the respondent was using to obtain legal advice regarding the termination of the applicant’s employment.

   [11] RSFIC, [29].

   [12] ASFIC, 3.

2. The contents of a cover letter to a lawyer’s invoice does not by its nature normally satisfy the requirements of a privileged communication.[13] Its purpose is normally related to the administration of the financial arrangements between the lawyer and their client. It is not for the purpose of providing legal advice. There are however circumstances in which an invoice or covering letter may be subject to legal professional privilege.[14] As was noted in Carey v Korda, where a series of invoices either directly reveals, or would allow a party to infer from it, communications which would be subject to legal professional privilege then the documents will be privileged.[15]

   [13] RSFIC, [23].

   [14] Hammond v Quayeyeware Pty Ltd [2021] FCA 293, [202].

   [15] Carey v Korda [2012] WASCA 228, [68].

3. In the matter at hand, the cover letters are of a kind described in Korda. Whilst not inherently privileged by their nature, the itemised format of the cover letters allow the reader to form a detailed view of the nature and contents of communications between the respondent and its lawyer. Accordingly, the cover letters are documents which are subject to legal professional privilege and therefore exempt from disclosure under s 42(1) of the Act.

4. There is no suggestion that the respondent has waived privilege in relation to the documents.

   THE FILE NOTES

5. Turning then to the file notes, dated 27 October 2015 and 18 January 2016.

6. On its face, the file note of 18 January 2016 is a file note of a teleconference between Jade Cordell, Gemma McGann (employees of IBA) and Prue Bindon, a lawyer employed at King & Wood Mallesons, a law firm acting for IBA. It can be readily inferred from this relationship and the nature of the contents of the file note that the communications are for the purpose of IBA being provided with legal advice. This document contains notes on the advice given to the respondent by King & Wood Mallesons. The applicant contends that authors of the note do not have sufficient independence to qualify for the privilege. This submission however misapprehends the basis on which the privilege is claimed. It is not the IBA staff who are the legal advisers whose professional independence provides the foundation for the claim. The IBA staff attending the meeting do not have to be independent. They are representatives of the client. It is sufficient that IBA’s lawyer attended the meeting the subject of the file note and in the course of that meeting provided legal advice. There cannot be any suggestion that a lawyer employed by King & Wood Mallesons would not meet that description. The document is therefore exempt from disclosure.  

7. The earlier file note, written on 27 October 2015, records a teleconference between Nathan Yuen, Jude Cordell and Gemma McGann (employees of IBA) and Prue Bindon, a lawyer at King & Wood Mallesons. The file note contains general notes on advice received by the respondent from their retained legal advisor. Having viewed this file note I am satisfied the communications recorded were between a client and their lawyer for the dominant purpose of the lawyer providing legal advice. The document is therefore, exempt from production under s 42(1) of the Act.

8. There is no suggestion that privilege has been waived.

   DECISION

9. The decisions under review are varied such that the documents annexed to this decision should be released to the applicant in the form attached. The decisions in relation to FOI Requests FOI Request 18/248 and FOI Request L18/127 are otherwise affirmed.

55.     I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.

........................(sgd)................................................

Associate

Dated: 28 January 2022

56.     Date of Hearing (on the papers): 28 January 2022

57.     Solicitors for the respondent: Clare McNamara, Clayton Utz                   

58.      

59.