MJ v NSW Department of Education and Training (No 2)

[2009] NSWADT 158

CITATION:	MJ v NSW Department of Education and Training (No 2) [2009] NSWADT 158
DIVISION:	General Division
PARTIES:	APPLICANT MJ RESPONDENT NSW Department of Education and Training
FILE NUMBER:	083105
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	2 June 2009
DATE OF DECISION:	23 June 2009
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Access to documents – personal affairs – legal professional privilege
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	MJ v NSW Department of Education and Training [2009] NSWADT 56
REPRESENTATION:	APPLICANT In person RESPONDENT G Shirm, solicitor
ORDERS:	The decision of the Department in regard to document number 182, 1337, 1348, 1653-1654, 423 and 9 is affirmed.

REASONS FOR DECISION

Introduction

1 On 13 March 2009 my decision in regard to MJ’s application for review of determinations made by the respondent, the Department of Education and Training (‘the Department’), was published: see MJ v NSW Department of Education and Training [2009] NSWADT 56 (‘my earlier decision’). The determinations for which MJ sought review were determinations by the Department to refuse her access, in part or in whole, to a large number of documents for which she sought access under the Freedom of Information Act 1989 (‘the FOI Act’).

2 In my earlier decision I made final orders in respect to the majority of documents (see orders 1 and 2 and paragraphs 88, 89 and 90 of the decision). In regard to document 1674 I made the following order:

3. The decision of the Department in regard to document 1674 is set aside and remitted for further consideration in accordance with paragraph 65 of these reasons for decision.

3 As there were a large number of documents in dispute I also made an order to ensure that all documents had been dealt with in my decision. That order was in the following terms:

4. Within 21 days of the publishing of these reasons for decision the parties to file and serve a schedule of documents not dealt with in these reasons for decision and which were the subject of the internal review determination of Ms Stathis.

4 The matter was set down for further directions on 20 April 2009 so as to deal with the Department’s determination, on re-consideration, of whether to grant, or refuse, MJ access to document 1674 and any other outstanding documents for which access had been refused in whole or in part and for which MJ had pressed access.

5 In compliance with my orders, on 6 April 2009, the Department filed and served the following:

(a) a ‘SCHEDULE OF DOCUMENTS’-filed in compliance with the Tribunal’s order 4. The Schedule, bearing a Tribunal stamp of ‘FILED – 6 APR 2009’ is a list of documents that were the subject of Ms Stathis’s determination of 6 May 2008 and which were not dealt with in my decision. The majority of the documents on this list are identified as being documents for which MJ had expressly indicated she did not press access in her letter to the Tribunal dated 24 June 2008 (see (b) below). The list also contains documents which are identified as being documents for which the applicant was subsequently granted access in whole or in part. There are 5 documents (number 182, 1337, 1348, 1653-1654, 423 and 9) which are identified as documents that were not the subject of the Tribunal’s determination and for which MJ pressed access. I have now marked this document Exhibit R1;
(b) a copy of the ‘AMENDED SCHEDULE OF DOCUMENTS SUBJECT TO A CLAIM OF EXEMPTION’ bearing a Tribunal stamp of ‘FILED- 23 JUN 2008’ and ‘RECEIVED- 6 APR 2009. This schedule contains MJ’s markings as to which documents she did not press access. I have now marked this document Exhibit R2;

6 In addition to the abovementioned Schedules, on 6 April the Department provided the Tribunal, on a confidential basis a full copy of the abovementioned 5 documents (i.e. document number 182, 1337, 1348, 1653-1654, 423 and 9). The department acknowledged that these had unfortunately been omitted from the original confidential bundle of documents provided to the Tribunal.

7 The Department also noted that in regard to document number 19 and 1047 (see paragraph [91] of my earlier decision) these had already been released to MJ.

8 On 20 April 2009, the Department filed its determination, dated 8 April 2009, following its reconsideration of its decision in regard to document 1674. Its decision on re-determination was to grant MJ access to the document with the names of the student referred to in the document deleted. This deletion the Department determined was exempt under clause 6 of Schedule 1 of the FOI Act (i.e. matter concerning the personal affairs of the student).

9 When the matter came before me for directions on 20 April 2009, MJ who participated by telephone with the assistance of her father, advised the Tribunal that she had received the Department’s re-determination of document number 1674. By consent, at this directions hearing, I made an order affirming the Departments re-determined decision in regard to document number 1674.

10 MJ however expressed confusion about the abovementioned Schedules that had been filed by the Department and the outstanding documents identified by the Department. After some discussion MJ acknowledged that she had received copies of Schedules of the above descriptions, but had not considered them for the purpose of the directions hearing.

11 To ensure that MJ had a copy of the above Schedules (as filed) I made orders, by consent, for the Department to serve MJ with a copy of these. I also made an order that after MJ had an opportunity to examine the Schedules that were sent to her, she was to file and serve a list of documents (if any) for which she had pressed access and which were not been dealt with by me in my earlier decision.

12 On 2 June 2009 MJ sent a bundle of material to the Tribunal by facsimile. In that material she requested a re-determination of my earlier decision. In my opinion MJ has raised no basis for a re-determination by me in regard to the final orders that I had made. The only issue that remains outstanding are the documents for which MJ pressed access and which were not dealt with by me in my earlier decision. MJ has suggested that there are a number of these but only identified one; namely document number 832. On my examination of the Schedules that are R1 and R2 and the Schedule that was filed by the Department on 28 August 2008 they do not contain any reference to a document with this number.

13 I can understand that the schedules filed by the Department in this application may give rise to some confusion as the numbering is not necessarily sequential. The reason for this is the truncated manner in which the Department dealt with MJ’s FOI request. As I have said in my earlier decision this was contrary to the provisions of the FOI Act. Notwithstanding this the material before me suggests the Department acted in the way it did in an endeavour to meet MJ’s FOI request. As her request was very wide, it meant that there were many documents the Department was required to assess and make a decision upon in accordance with the provisions of the FOI Act. In this process MJ was granted access to many of the documents she requested. What was and continues to be before the Tribunal are those documents for which the Department has refused access in whole or in part on the grounds they contain exempt matter falling within clause 6 or 10 of Schedule 1 of the FOI Act. It is these documents that are listed in the various schedules filed by the Department. The original Schedule was refined over time with the deletion of those documents that MJ indicated she did not press access to and those which MJ was subsequently given access to. The format of the various schedules has at all times been the same, as has the numbering of the documents. There may have been some slight changes but on the whole they have remained the same.

14 I also understand MJ’s reason for seeking access to document’s held by the Department. They have been considered so far as they are relevant to the issues of access to documents pursuant to the provisions of the FOI Act.

15 The only remaining issues for determination by the Tribunal is the Department’s determination in regard to document number 182, 1337, 1348, 1653-1654, 423 and 9.

16 In regard to document number 182, 1337, 1348 and 1653-1654, the matter for determination is whether the deletions in each document is exempt on the grounds that it contains matter concerning the personal affairs of a person other than MJ (i.e. exempt under clause 6 of Schedule 1 of the FOI Act) and if they are exempt whether the correct and preferred decision is to refuse MJ access to these deletions (see paragraph [24] of my earlier decision).

17 In regard to document number 423 and 9 the matter for determination is whether the deletions in 423 and the entire contents of 9 are exempt on the grounds that it contains a privileged communication (i.e. exempt under clause 10 of Schedule 1 of the FOI Act) and if they are exempt whether the correct and preferred decision is to refuse MJ access to these deletions (see paragraph [24] of my earlier decision).

Document number 182, 1337, 1348 and 1653-1654

18 The relevant law and legal principles in regard to the clause 6 exemption is set out at paragraphs [34] to [39] of my earlier decision. They equally apply to the deletions in these remaining documents.

19 The deletions in these documents are student names or some other information concerning the personal affairs of a student (e.g. the school attended by the student). For the reasons set out in paragraphs [62] and [63] of my earlier decision I am satisfied that each deletion contains information concerning the personal affairs of a student and is exempt under clause 6 of Schedule 1 of the FOI Act.

20 On the basis of the matters set out in paragraphs [93] to [94] of my earlier decision I also find that the correct and preferred decision is to refuse MJ access to the deleted material. It is noted that she did not seek information of this kind previously.

21 Accordingly the appropriate order is for the Tribunal to affirm the decision of the Department in regard to document number 182, 1337, 1348 and 1653-1654.

Document number 423 and 9

22 The relevant law and legal principles in regard to the clause 10 exemption is set out in paragraphs [66] to [75] of my earlier decision. They equally apply to the deletions in document number 423 and the entirety of document 9.

23 Document number 423 contains 3 email communications. The top email on the page is an email from Rodney Blume, Senior Solicitor Acting Manager of the OHS Strategy & Litigation Claims of the Department to Brian Nowland that was sent on 14 September 2006. The email at the bottom of the page is an email sent on 14 September 2006 by James Leslie solicitor of Leslie Hargraves Lawyers to Emily McGill of GIO, the Department’s insurer. There is an email in the middle of the page, the entire details of which have been deleted. However, I note that the abovementioned Schedules (i.e. Exhibit R1 and R2) identify the sender and the recipient and the date it was sent.

24 Document number 9 consists of 3 emails. It is described as an email exchange between Rodney Blume and Emily McGill in the Schedule that is Exhibit R2. However, this description has been deleted in the Schedule that is Exhibit R1 and another description is used which bears no resemblance to what is contained in the document. It is obviously an error that has occurred in transposing information from one schedule into another.

25 Document number 9 does have an email exchange between Rodney Blume and Emily McGill dated 18 September 2006, however this email and an earlier email from Emily McGill to Rodney Blume is in response to an email from James Leslie to Emily McGill sent on 15 September 2006.

26 The evidence before the Tribunal is that James Leslie was the Department’s external solicitor who had initially been retained to act for the Department in regard to MJ’s worker’s compensation claim (see paragraphs [30] of my earlier decision). Emily McGill was the person within GIO who was responsible for the worker’s compensation claim to the extent it concerned the Department and Brian Nowland was the Departmental officer who was responsible for making arrangements for MJ to return to work (see paragraph [30] and [80] of my earlier decision. In my earlier decision I found that Rodney Blume’s role in the Department was not exclusively that of a legal adviser, he also had a policy and administrative role (see paragraph [81] of my previous decision).

27 Having regard to the contents of the deletions document number 423, I am satisfied that the contents of the email from Emily McGill to James Leslie is a confidential communication that came into existence for the dominant purpose of obtaining legal advice on behalf of the Department from James Leslie and Rodney Blume. Accordingly, the information in this email is exempt under clause 10 of Schedule 1 of the FOI Act. I am also satisfied that the deletion in the email sent by Rodney Blume is also a confidential communication that came into existence for the dominant purpose of giving legal advice and is therefore exempt under clause 10.

28 Having regard to the contents of the emails that are in document number 9 I am satisfied that the email between James Leslie and Emily McGill is a confidential communication between the Department’s solicitor and the Department’s insurer that came into existence for the dominant purpose of providing legal advice to the Department through its insurer. Accordingly, the information in this email is exempt under clause 10 of Schedule 1 of the FOI Act. As the other 2 emails relate to this legal advice they too in my opinion are exempt under the same clause.

29 Again, on the basis of the matters set out in paragraphs [93] to [94] of my earlier decision I also find that the correct and preferred decision is to refuse MJ access to the deleted information in document number 423 and the entirety of document number 9.

30 Accordingly the appropriate order is for the Tribunal to affirm the decision of the Department in regard to the deletions in document number 423 and in regard to the entire document number 9.