McGuirk v University of New South Wales (No 2)

[2008] NSWADTAP 12

Appeal Panel - Internal

CITATION:	McGuirk v University of New South Wales (No 2) [2008] NSWADTAP 12
PARTIES:	APPELLANT (Gerard) Michael McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	069055
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	6 February 2008
DATE OF DECISION:	11 March 2008
BEFORE:	Hennessy N - Magistrate (Deputy President); Britton A - Deputy President; Blake C - Non Judicial Member
CATCHWORDS:	Question of law
MATTER FOR DECISION:	Principal matter
DECISION UNDER APPEAL:	McGuirk v University of New South Wales [2006] NSWADT 256
FILE NUMBER UNDER APPEAL:	053272
DATE OF DECISION UNDER APPEAL:	09/01/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Protected Disclosures Act 1994
CASES CITED:	Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8
REPRESENTATION:	APPELLANT In person RESPONDENT P Singleton, barrister
ORDERS:	The decision of the University of New South Wales to refuse to give access to the disputed documents is affirmed.

REASONS FOR DECISION

1 This decision follows on from the decision of the Appeal Panel in McGuirk v University of New South Wales [2007] NSWADTAP 65. The background to this appeal is that in December 2003 Mr McGuirk initiated prosecutions for alleged breaches of the Protected Disclosures Act 1994 against five people who were, or had been, employed by the University of New South Wales (the University). The matter was first listed before the Local Court in Newtown on 22 December 2003. Each of the defendants requested the University’s solicitor to provide him with legal assistance. Those requests were referred to Mr Andrew Mullen, Assistant University Solicitor. Mr Mullen requested that the Crown Solicitor act for the defendants in relation to the criminal proceedings. Solicitors, James Shevlin and subsequently Catherine Follent, had carriage of the matter. Counsel was briefed to represent the defendants. The trial commenced in February 2005. On the third day, an agreement was reached between the parties and the proceedings were dismissed.

2 Mr McGuirk applied to the University for access to seven documents relating to these proceedings under the Freedom of Information Act 1989 (FOI Act). After paying an advance deposit of $405, access was given to four of the documents, but denied to the remaining three documents (the “disputed documents”). Those documents were:

1. Email from Mr Mullen, Assistant University Solicitor to Mr Linwood, Assistant Crown Solicitor, dated 21 December 2003 (3 pages – Document 5).

2. Letter from Ms Follent, A/Assistant Crown Solicitor to Mr Mullen dated 4 January 2005 (2 pages – Document 6).

3. Email from Mr Mullen to Ms Follent dated 1 February 2003 (2 pages – Document 7).

3 The ground on which the University refused access to those documents was that they were exempt because they were protected by legal professional privilege: FOI Act , Schedule 1, Clause 10. In the first Appeal Panel decision, McGuirk v University of New South Wales [2007] NSWADTAP 65, the following orders were made:
1. Leave is granted for the appeal to be extended to the merits of the Tribunal’s decision in relation to the exercise of the discretion to give access to exempt documents.

In relation to Order 1, the following directions are made:

(i) The Appellant is to file and serve any further submissions in relation to the exercise of the discretion within 28 days of the date of these reasons.

(ii) The Respondent is to file and serve any submissions in reply within a further 28 days.

(iii) The Appeal Panel will make a decision on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 having regard to the evidence before the Tribunal and the further submissions of the parties.

2. In all other respects, the appeal is dismissed.

4 Mr McGuirk advised the Tribunal by letter dated 30 December 2007 that he had decided not to file any further submissions.

Legislative framework

5 Under section 16(1) of the FOI Act “[a] person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act.” Following an application for access to documents, an agency must determine whether access to the document is to be given or refused, and any charge payable for dealing with the application: FOI Act, section 24. An agency may refuse access to a document if it is an exempt document: FOI Act, section 25(1)(a). An exempt document includes a document referred to in any one or more of the provisions of Schedule 1: FOI Act, section 6. Clause 10 of Schedule 1 relates to documents subject to legal professional privilege:

10 Documents subject to legal professional privilege

(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.

6 It is the common law principles of legal professional privilege, rather than the statutory provisions relating to client legal privilege in the Evidence Act 1995, that are applicable in this case: Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26, at [9] to [12].

7 Section 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act) sets out the Tribunal’s powers when reviewing a decision of an agency under the FOI Act:

(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.

Issues

8 These reasons address the following issues:

a) the nature and extent of the Tribunal’s powers to give access to exempt documents in general;

b) the nature and extent of the Tribunal’s powers to give access to documents subject to legal professional privilege; and

c) whether the Appeal Panel should exercise its power to give Mr McGuirk access to the disputed documents.

9 The first two issues were addressed by the Appeal Panel in University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8 at [9] to [25]. We adopt that reasoning in this case. At [25], the Appeal Panel concluded that:
By exempting documents subject to legal professional privilege, parliament has decided that, in general, the interests in maintaining legal professional privilege should prevail over the competing interest of open and accountable government. Although the public interest in maintaining legal professional privilege is very strong, documents the subject of legal professional privilege may be disclosed where the particular circumstances of the case justify disclosure. The reason for disclosing exempt documents needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of Government.
Should the Appeal Panel set aside the agency’s decision not to give access to the disputed documents?

10 In his letter to the Tribunal dated 30 December 2007, Mr McGuirk set out his reasons for disagreeing with the Appeal Panel’s first decision in McGuirk v Director General, Attorney General’s Department [2007] NSWADTAP 65. His reasons for not filing any further submissions in relation to the exercise of the discretion are contained in that correspondence. Despite the absence of any submissions on this point, in determining whether the University has made the correct and preferable decision, we must decide whether the circumstances of this particular case justify disclosure.

11 Neither party has brought to our attention anything about the particular circumstances of this case that would justify disclosure of the documents. One of Mr McGuirk’s submissions before the Tribunal was that legal professional privilege does not attach to the disputed documents because they were created with the intention of furthering an illegal purpose. That purpose was said to be the suppression of criminal breaches of the Protected Disclosures Act 1994 by the defendants in the McGuirk v Niland & Ors matter. He said that public money has been used improperly to fund legal advice and services by the Crown Solicitor’s Office. The Tribunal was not satisfied that the documents had been created with such an intent. The Appeal Panel concluded at [39] that none of the evidence established, even at a prima facie level, that the communications were in furtherance of an improper purpose. Consequently, improper purpose cannot be a reason for disclosing the documents. In the absence of a sufficient reason, particular to the circumstances of the case, for disclosing the documents, we affirm the University’s decision to refuse to give access to the documents.