O'Grady v Department of Finance, Services and Innovation

[2017] NSWCATAD 360

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	O’Grady v Department of Finance, Services and Innovation [2017] NSWCATAD 360
Hearing dates:	23 November 2017
Date of orders:	06 December 2017
Decision date:	06 December 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R C Titterton, Principal Member
Decision:	(1) The decision of the respondent of 5 April 2017 is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW - Government Information – discharge of onus - legal professional privilege – allegations of delay
Legislation Cited:	Administrative Decisions Review Act 1997 Evidence Act 1995 Government Information (Public Access) Act 2009 State Records Act 1998 Civil and Administrative Tribunal Act 2013
Cases Cited:	Saggers v Environment Protection Authority [2014] NSWCATAD 37 Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186
Category:	Principal judgment
Parties:	Rod O’Grady (Applicant) Department of Finance, Services and Innovation (Respondent)
Representation:	Solicitors: S Jones (Respondent)   Self Represented (Applicant)
File Number(s):	2017/00258961

REASONS FOR DECISION

Overview

1. By application filed 25 August 2017, the applicant, Mr Rod O’Grady, seeks a review of two decisions of the respondent, the Department of Finance, Services and Innovation (the Department). Mr O’Grady asks that the Tribunal set aside the Department’s decisions and order it to provide him with redacted portions of emails which the Department has refused to disclose.

2. The Department claims that the redacted portions of the emails contain information, including legal advice, and that those emails are protected by legal professional privilege and should not and cannot be provided to the applicant.

3. I agree. I have been provided with a copy of the unredacted emails. I am satisfied that each redacted portion of each email is the subject of a proper and valid claim of legal professional privilege.

4. For the reasons given below, the decision of the Department of 5 April 2017 is affirmed.

Background

5. On or about 9 January 2017, the applicant made an application pursuant to the Government Information (Public Access) Act 2009 NSW (the Act) for access to government information held by the State Archives and Records Authority of NSW (SARA). SARA is a division of the Department. The application is not in evidence before the Tribunal.

6. In a letter to the applicant dated 9 February 2017, SARA notes that the application was amended by agreement and confirmed in an email of the applicant to SARA dated 17 January 2017. That email is also not in evidence before the Tribunal. However, it appears that the information sought by the applicant included copies of records including:

1. Meeting notes and minutes of Sutherland Shire Council;

2. Other records and file notes of Sutherland Shire Council;

3. Information and policy documentation relating to s 10 of the State Records Act 1998 and its practical application

4. Those pertaining to interactions the applicant had with Sutherland Shire Council regarding s 10 of the State Records Act 1998.

7. Pursuant to s 58(1) of the Act, SARA decided to provide full access to some of the information falling within the revised scope of the applicant’s application. However, access to three email trails was refused on the basis that the information in the three emails was subject to legal professional privilege (the first decision).

8. The first decision was a reviewable decision under s 80(d) of the Act. The applicant sought a review of the first decision by the Information and Privacy Commission (IPC).

9. On 15 March 2017, the IPC reviewed the first decision and recommended, pursuant to s 93 of the Act, that the Department make a new decision by way of internal review.

10. On 5 April 2017, a delegate of the Department made a new decision following an internal review (the second decision). The second decision was said to override the first decision. The second decision was to refuse access to the information sought in the original decision. The delegate making the second decision said that she “reiterated” the decision not to waive legal professional privilege. The delegate also noted that that decision of the decision maker to not waive legal professional privilege was not a reviewable decision: s 5(3) of the Act.

11. On 1 June 2017, the Applicant applied to the IPC for external review of the second decision.

12. On 4 August 2017, the IPC produced a further report in which it recommended against the Department’s second decision and notified the applicant of a right of review to the Tribunal.

13. On 25 August 2017, the Applicant applied to the Tribunal for review of the first and second decisions of the Department. The application for review also sought a review of the two recommendations of the IPC.

14. On 10 October 2017, the Department provided the Applicant with the three email trails in redacted form.

Preliminary

15. The applicant states in his application that he seeks review of the first and second decisions, and a review of the two recommendations of the IPC.

16. The Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act): see s 30 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) and s 9 of the Administrative Decisions Review Act . For example, s 100 of the Act gives a person the right to apply to the Tribunal for a review of a “reviewable decision”. “Reviewable decisions” in respect of access applications are set out in s 80 of the Act. There is nothing in the Act or any other enabling legislation which gives the Tribunal power to review a decision of the IPC. Consequently, the Tribunal has no administrative review jurisdiction in relation to recommendations of the IPC. In any event, as I understood the applicant’s position, to the extent that the IPC was recommending that Department review its two decisions and waive legal professional privilege, he supported those recommendations.

17. As to the first decision, that has been overridden by the second decision. Section 84 of the Act provides that an internal review is to be done by making a new decision, as if the decision being reviewed (here the first decision) had not been made, with the new decision (here the second decision) being made as if it were being made when the application to which the review relates was originally received.

18. For these reasons, I have only reviewed the decision of the Department of 5 April 2017.

Evidence at the hearing   

19. The Department filed an affidavit of Ms Rosemary Chandler dated 15 November 2017. The affidavit was tendered without objection. Ms Chandler is the Director, Legal in the Legal and Audit Business Unit within the Government and Corporate Services Division of the Department. She commenced in that position in March 2016. Prior to her appointment she had been a Principal Solicitor for the Department from August 2009 to March 2016. She was first admitted as a solicitor in 1985.

20. In summary, Ms Chandler describes the structure of the Department. She then states that all legal files held by the Legal and Audit Business Unit of the Department are dealt with securely. She states that in the absence of a lawful basis for disclosure, only staff in the Business Unit which is seeking advice, and legal officers with the carriage of the relevant matter, have access to the files.

21. Ms Chandler states that the confidentiality of the Legal and Audit Business Unit’s advice is reflected in the Department’s legal Policy, which is annexed to her affidavit as Annexure A. She says the relationship of legal officers employed in the Legal and Audit Business Unit to other employees of the Department to whom they provide legal advice is a Lawyer/client relationship. Ms Chandler states that, as per page three of the legal Policy, only people employed as legal officers with the department are permitted to provide legal advice, in part to ensure that the legal advice is “afforded legal professional privilege protections”. She states that the confidentiality of such advice is reinforced on page eight of the Legal Policy, which states that “legal advice is provided for internal use”, and “should not be circulated outside of” the Department.

22. The balance of the affidavit deals with the content of the three emails, in particular the redacted portions. Ms Chandler states, in summary, that each redacted portion contains both a request for legal advice sought from the Legal and Audit Business Unit, and the resulting legal advice given. She states that she considers both the request for legal advice and the advice provided to be privileged.

23. Mr O’Grady had asked that Ms Chandler be available for cross-examination. Mr O’Grady is not a lawyer, and represented himself at the hearing. Perhaps not surprisingly, he asked no questions which would cause me to doubt the genuineness of the views held by Ms O’Grady. Were it not for the fact that he had no knowledge, or understanding of legal principles or procedures, I may have been critical of his requiring Ms Chandler for cross-examination. As I explained to him during the hearing, cross-examination is not an opportunity for the cross-examiner to make speeches to the witness, or to make addresses to vindicate a particular position. That can be done in submissions. If those submissions are accepted, the applicant would have the satisfaction of seeing those submissions accepted in publicly available reasons for decision.

Consideration

Tribunal’s jurisdiction and powers

24. The Tribunal’s jurisdiction to conduct this review derives from s 100 of the Act, s 28 of the NCAT Act and s 9 of the Act.

25. The role of the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Department bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: s 105(1) of the Act.

26. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3).

27. I note that:

1. An access applicant under the Act (here the applicant) has a statutory right to access government information, and the Act instructs that discretions under it be exercised so as to enhance its objects;

2. The objects of the Act are set out in s 3 as including:

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and 

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

28. There are two issues in this application. The first issue is whether the Department has made good its claim that the unredacted portions of the three emails should not be disclosed as being the proper subject of a claim for legal professional privilege. The second issue is whether I should make take any action pursuant to ss 111 and 112 of the Act.

Legal professional privilege

29. I informed the applicant during the hearing that I had been provided with a copy of the unredacted emails in their entirely, and that I proposed to read the emails for myself and thus determine whether or not the claims for legal professional privilege was made out. Each party concurred with this approach. I note that this approach conforms with the applicant’s request in par [3] of his written submissions to “independently verify the legality and appropriateness of the redactions”.

30. I have read each of the emails in respect of which legal professional privilege has been claimed. I am satisfied that each claim is a proper one. In this respect, I accept the Department’s submissions as follows.

31. First, I accept the Department’s submissions as to the legislative framework of the Act, namely that:

1. Section 5 provides for a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure;

2. Section 12 provides for a general public interest consideration in favour of disclosure;

3. Section 13 provides that there is an overriding public interest against disclosure of government information for the purposes of the Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

4. Section 14(1) of the Act relevantly provides that 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.

5. Clause 5 of Sch 1 provides that:

(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.

32. Secondly, the Evidence Act 1995 requires that whether advice to be privileged depends on the following factors:

1. The existence of a client/lawyer relationship;

2. A document or communication being confidential in nature;

3. The document or communication being for the purpose of legal advice to be given and received.

33. Thirdly, it is apparent from the face of the email trails that each commences with a request from an officer of SARA to Ms Chandler, the Department’s legal representative, seeking advice in relation to a response to the Applicant’s request.

34. Fourthly, the affidavit of Ms Chandler, sworn 15 November 2017, establishes that:

1. Ms Chandler is a solicitor in the employ of DFSI working within the Legal Audit Business Unit;

2. The Business Unit provides frank and independent legal advice to other units within the Department;

3. SARA is a unit within the Department;

4. Legal advice provided by lawyers within the Legal Audit unit is provided on the basis of a lawyer/client relationship and is privileged and confidential; and

that in each case, Ms Chandler considers that advice provided in the redacted portions of the email trails to be confidential and privileged.

35. Fifthly, Ms Chandler was a lawyer engaged by a client to provide legal advice in relation to a specific issue (being the redacted information in the three emails trails) in the same way that the Tribunal held was the case in Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186.

36. Sixthly, if the Tribunal concludes that the redacted material is legally privileged then the consequence that follows is that it is subject to cl 5 of Sch 1 of the Act and it is to be conclusively presumed that there is an overriding public interest against disclosure of information.

37. Seventhly, a decision that an agency makes under cl (2) of Sch 1 of the Act is not a reviewable decision: cl (3) of Sch 1.

38. Eighthly, once privilege is established, the Tribunal is not empowered to review the decision of the Department not to waive privilege: cl 5(3) of Sch 1 of the Act; Saggers v Environment Protection Authority [2014] NSWCATAD 37 at [83].

39. In summary, I find that each claim of legal professional privilege to be a valid and proper one.

Sections 111 and 112 of the Act

40. These sections provide as follows:

111 REFERRAL OF SYSTEMIC ISSUES TO INFORMATION COMMISSIONER

NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.

112 REPORT ON IMPROPER CONDUCT

If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.

41. As noted, the only evidence before me was the affidavit evidence of Ms Chandler. There is nothing in that evidence to warrant the Tribunal referring any matter to the Information Commissioner, or for the Tribunal to bring any matter to the attention of the responsible Minister.

42. It was suggested by the applicant during oral submissions that I should be critical of the delay taken by the Department in the responding to the applicant’s request for information. I disagree. He made his application on 8 March 2017, and the Department first responded on 9 March 2017. While it is true that certain portions of emails which were initially not disclosed in March were disclosed in October 2017, I do not accept that the Department did not respond to the applicant’s application or to his concerns in a timely fashion. I note that the Department attended a mediation with the applicant on 30 October 2017. All parties have an obligation to attend such mediations in good faith.

Conclusion

43. Section 63 of the ADR Act provides that when determining an application for an administrative review of an administratively reviewable decision, the Tribunal may affirm or vary the administratively reviewable decision, set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision, or set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator.

44. For the above reasons, I have decided to affirm the decision of the Department of 5 April 2017.

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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: 06 December 2017