O'Hara v North Sydney Council
[2005] NSWADT 100
•05/10/2005
CITATION: O'Hara v North Sydney Council [2005] NSWADT 100 DIVISION: General Division PARTIES: APPLICANT
Louise O'Hara
RESPONDENT
North Sydney CouncilFILE NUMBER: 033250 HEARING DATES: 21 October 2004, 8 December 2004, 28 January 2005, 16 March 2005 SUBMISSIONS CLOSED: 03/16/2005 DATE OF DECISION:
05/10/2005BEFORE: Higgins S - Judicial Member APPLICATION: access to documents - adequacy of search - access to documents - legal professional privilege - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - legal professional privilege MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: Abigroup Ltd v Akins (1997) 42 NSWLR 623
Attorney General (NT) v Maurice (1986) 161 CLR 475
Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCA 1181
Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Australian Rugby Union Ltd v Hospitality Group Pty Ltd and Ors [1999] FCA 1061
Baker v Campbell (1983) 153 CLR 52
Beesley v Commissioner of Police [2000] NSW ADT 52Cianfrano v Premier's Department [2004] NSWADT 225
Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125
Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner (2002) 213 CLR 543
DQ v Commissioner of Police, New South Wales Police Service [2002] NSW ADT 215
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Fagan v State of New South Wales [2004] NSWCA 182
Goldberg v Ng (1995) 185 CLR 83
Mann v Carnell (1999) 201 CLR 1
Murre (No. 2) v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 175
O'Reilly v Commissioner of State Bank of Victoria (1982) 153 CLR 1
Shepherd and Department of Housing, Local Government and Planning [1994] 1 QAR 464
State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224
Trade Practices Commission v Sterling (1979) 36 FLR 244
Waterford v Commonwealth (1987) 163 CLR 54
Woollahra Municipal Council v Westpac Banking Corp (1994) 33 NSWLR 529REPRESENTATION: APPLICANT
In person
RESPONDENT
G Furness, barristerORDERS: Tribunal orders; a) the decision of the Council to refuse the applicant access to the documents referred to in paragraph 52 of this decision is affirmed; b) the decision of the Council to refuse the applicant access to the documents referred to in paragraph 53 of this decision is set aside and in substitution thereof a decision that the applicant be granted access to these documents; c) in respect of those documents referred to in (a) above which are exempt in part, Council to provide the applicant with a copy of those documents with the exempt material deleted within 28 days of this decision and; d) Council to provide the applicant with a copy of the documents referred to in (b) within 28 days of this decision.
REASONS FOR DECISION
Introduction
1 This is an application by Ms O’Hara (“the applicant”) seeking review of a decision of the North Sydney Council (“the Council”) to refuse her access to documents that she had requested pursuant to the Freedom of Information Act 1989 (“the FOI Act”). That refusal related to documents that the Council claimed were exempt on the grounds that they were the subject of legal professional privilege: see cl. 10 Schedule 1 FOI Act. The applicant also contended that Council had failed to disclose other documents that it held and which came within her freedom of information request (“FOI request”). This contention related to the adequacy of the Council’s search for documents that came within her FOI request together with concerns about the manner in which officers of the Council dealt with her request. The Council’s position was that it did not hold any further documents that came within the applicant’s FOI request and that it had acted appropriately at all times.
2 The applicant’s FOI request was made in a letter dated 23 December 2002. That request was expressly stated to have been made pursuant to the FOI Act and requested “access to and copies of” the following documents:
3 The applicant owns two properties within the jurisdiction of the Council. One of these properties was the subject of litigation between Council and the applicant in the Land and Environment Court. At the time of making her FOI request, the litigation had been determined with the exception of costs. The applicant had commenced the proceedings. They were an appeal against an order of the Council in relation to work that was required to the applicant’s property. The litigation took some time and Council was successful in having its orders upheld. As a result, it sought an order that the applicant pay its costs. It is my understanding that at the time the applicant made her FOI request an application for such orders had been made but not determined. The applicant contended that the officers of the Council, who had responded to her FOI request had deliberately sought to thwart and delay her gaining access to documents that she was entitled to have access to under the FOI Act.
“1. All files, documents and information relating to my property and/or myself (including letters, memoranda, minutes, file notes, objections, photographs, etc) held by Council. This should include the file on Milsons Restaurant.
2. All details relating to consultants employed by and/or providing quotes or other services to Council in respect of my property or myself (including names, addresses, contact numbers, purpose of consultation, services performed, dates, payments, documentation, photographs, etc).
3. All details related to legal costs in respect of my property and/or myself (including names, addresses, contact numbers, purpose of consultation, services performed, dates, payments, documentation, etc).
4. Minutes including current matters of Legal Services Committee from 1996”.
Issues
4 As mentioned above, there are two main issues for determination in this application. These are:
5 In respect of each of these issues the onus rests on the Council: see s. 61 FOI Act.
(a) whether Council had adequately searched for all documents which it held that came within the terms of the applicant’s FOI request; and
(b) whether the documents that came within the terms of the applicant’s request and for which the Council had refused access, whether these documents were exempt on the grounds that they attracted legal professional privilege.
6 Related to these issues is whether officers of the Council had acted inappropriately in the exercise of their duties, on behalf of the Council, when responding to the applicant’s FOI request. As I have explained below, although the officers of Council responsible for dealing with the applicant’s FOI request failed to meet many of their obligations under of the FOI Act, in my opinion, there is no evidence to indicate that these officers “failed to exercise in good faith the functions conferred or imposed on” them; see s.58 FOI Act.
Adequacy of Search
Relevant law
7 The FOI Act makes provision for any person to make an application requesting access to documents held by a government agency or Minister (“the agency”): see s.16 and s.17, FOI Act. Where a person makes such a request the agency is required to determine whether access to the document(s) is to be given or refused: see s.24, FOI Act. That determination is to be made no later than 21 days after receipt of the application and a failure to do so within this prescribed time is deemed to be a refusal of access: see s.24(2) FOI Act. There are some exceptions to this deeming provision, however, they are not relevant to this application.
8 An agency is able to refuse access to a document only on specified grounds: see s.25, FOI Act. One of these grounds is that the document is “exempt” under Schedule 1 of the FOI Act (e.g. legal professional privilege, which is discussed more fully below).
9 Section 27 of the FOI Act sets out the form in which access can be given. This includes giving the person a reasonable opportunity to inspect the document or giving the person a copy of the document: see s.27(1)(a) & (b) FOI Act. Where the FOI applicant requests that access be given in a particular form the agency is required to provide access in that form unless the agency can establish one of the prescribed exceptions: see s.27(2) & (3) FOI Act. One of the exceptions is where the requested form of access would unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions (.s27(3)(a) FOI Act). In such cases the agency is entitled to give access in another form.
10 It is well established that the Tribunal’s power to make a determination as to whether access to a document requested pursuant to the FOI Act has been refused encompasses a refusal on the ground that a document or additional documents coming within the terms of the FOI request cannot be identified or located; see DQ v Commissioner of Police, New South Wales Police Service [2002] NSW ADT 215 at [7], Murre (No. 2) v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 175 [at 16 and 17] and Beesley v Commissioner of Police [2000] NSW ADT 52.
11 In DQ, the President cited with approval at [9] the approach taken by the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning [1994] 1 QAR 464, who said it involved the following considerations:
12 However, in DQ , the President went on to say at [30] that the Tribunal’s functions under the FOI Act do not extend to being an investigative agency in relation to this issue as this was a role more appropriately undertaken by the Ombudsman.
“(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s 7 of the FOI Act ): and if so,
(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.”
13 In my opinion, in this application, the issue of adequacy of search has primarily arisen as a result of the manner in which Council responded to the applicant’s FOI request, in particular the way in which the applicant was initially given access to documents and the fact that Council had failed to fully inform the applicant of all the documents for which access was refused. Accordingly it is necessary to set out in some detail the manner in which Council dealt with the applicant’s application.
Evidence
14 Kerry Anne Gilbert (“Ms Gilbert”), Director of Corporate Services of the Council, and Denise Kay Highton (Ms Highton”), the Document Management Services Manager of Council gave evidence on behalf of the Council. Ms Gilbert is responsible for overseeing the management of FOI applications received by Council and she gave evidence on how Council dealt with FOI requests generally and how the applicant’s request was dealt with. Ms Highton gave evidence about the document management systems of Council and her involvement in giving the applicant access to documents held by Council.
15 In her evidence Ms Gilbert said that Council had an open access policy and under that policy: “… as a general rule, all Council files are accessible to the public, subject to Council’s obligations under the Privacy and Personal Information Protection Act 1998 (NSW) and documents covered by legal professional privilege.” As a result of this policy Council only received a few FOI requests in any one year. Where an FOI request is made and the applicant is not sure about which documents he/she requires, the usual practice is to invite the applicant to attend the offices of the Council to peruse all relevant files and to select those documents that the applicant wishes to have a copy of. The relevant files are identified by Document Management Services of the Council. These are identified, from the records of documents and files maintained by Council.
16 In her evidence, Ms Highton said that over the years, Council had three different types of document management systems. The first system was a manual system (“the manual system”) and it applied prior to 1985. Under that system documents were kept in hard copy format and filed according to a particular property address and the subject of these files were recorded on a hard copy ledger. The second system was an electronic recording system that applied from late 1985 to 4 April 2001. Under that system an electronic record was made of the details of all incoming documentation and outgoing documentation (“the Genasys system”). This system, enabled searches of documents to be made on the basis of file titles and by property addresses. However, it was not a mandatory system. Under this system documents were stored in a combination of physical files and microfiche jackets. The current system, which has applied since 5 April 2001 is a fully digitised electronic system (“the DataWorks system”). It is mandatory system and all correspondence, emails, faxes, memos, file notes and reports are scanned and stored electronically within the DataWorks system. This system allows searches to be conducted for a particular document number, for documents relating to a particular property or to a particular person. The DataWorks system classifies certain documents as being restricted documents. They are classified as restricted on grounds of privilege or some other ground. Under the open access policy, members of the public are not given access to restricted documents. However, access is given to all other documents.
17 In the case of the applicant’s FOI request, Ms Gilbert responded to the request in a letter dated 8 January 2003. In that response she sought clarification as to the nature of documents the applicant sought in respect of paragraphs 1 and 2 of her FOI request. She also advised that the documents referred to in paragraph 3 of the applicant’s FOI request (i.e. documents relating to legal costs) were the subject of legal professional privilege and could therefore not be released. Finally, she advised that the documents requested in paragraph 4 (minutes of the Legal Services Committee) of the applicant’s FOI request were publicly available and that the applicant could view these at no cost by contacting the Document Managing Services.
18 On 16 January 2003, the applicant replied to Ms Gilberts’ letter. In that reply the applicant stated that she believed that paragraphs 1 and 2 of her FOI request were unambiguous in that she requested “all” documents. She also questioned the claim for legal professional privilege as these documents related to the costs Council was seeking to recover from her. In her letter she also requested that the documents she had requested be made available to her by 17 January 2003.
19 On 21 January 2003, Ms Gilbert prepared a further letter to the applicant. In that letter Ms Gilbert confirmed that access to documents relating to legal costs was refused on the grounds that they were subject to legal professional privilege. Ms Gilbert also advised that the applicant would be granted access to documents coming within paragraph 2 of her FOI request and that she would be presented with copies of those documents when she attended Council the following Tuesday, 28 January 2003. In respect of the applicant’s request for “all” documents relating to her property, Ms Gilbert said the following:
20 Ms Highton gave evidenced that on 21 January 2003, at the request of Ms Gilbert, she conducted a search of the ledger of the manual system, the Genasys system and the DataWorks system for documents and files that came within the terms of paragraphs 1, 2 and 4 of the applicant’s FOI request. As a result of her searches Ms Highton created a computerised lists of relevant documents in the DataWorks system and a further computerised list of relevant files stored under the Genasys and manual systems. A search for documents that came within paragraph 3 of the applicant’s FOI request was not undertaken as Ms Gilbert and the legal officer of the Council had instructed that these were not to be disclosed.
“… access to your files is available to you under Council’s Access to Documents Policy . In accordance with the guidelines established by the NSW Ombudsman’s Office, which recently merged with Community Relations Division, this should be your first avenue of access. In addition, the Act and the guidelines indicate that the agency (Council) is to offer assistance to amend any application that may result in agency’s resources being unreasonably diverted from its normal function. Your request for copies of “all” files is not considered reasonable . It is for this reason that I sought clarification from you as to the nature of the documents you were seeking.” (emphasis added)
21 After obtaining the lists, Ms Highton extracted the relevant documents and files and identified those documents that she believed to be “privileged”. She said “privileged” documents were: “(a) correspondence between Council’s solicitors and the Council; and (b) confidential items included in the Legal Services Committee minutes.” In respect of those documents stored in the DataWorks system, Ms Highton prepared an edited version of the initial list she had prepared with reference to any privileged document being removed. She was able to do this as the system identified those that were privileged.
22 In the case of those files listed in the Genasys and manual system, Ms Highton obtained the relevant files and extracted from these any document (including microfiche) that she believed to be “privileged”. Having physically extracted these, Ms Highton, “kept them in a separate bundle and strapped to the outside of the files from which they were removed”.
23 Ms Highton said that the documents she had extracted as being “privileged” came from files relating to the applicant’s properties and the Legal Services Committee Minutes. Although Ms Highton did not keep a record of the details of the documents she had extracted, it would appear that they exceeded 170 in number: see the list of exempt documents prepared by Council in October 2004.
24 On 22 January 2003, the applicant hand delivered to Council a request for internal review on the basis that her FOI request had not been dealt with within the prescribed time. While handing over her request for internal review, Ms Gilbert gave the applicant a copy of her letter written 21 January 2003: see [19] above.
25 On 28 January 2003, in accordance with an arrangement she had made with Ms Highton, the applicant attended the offices of the Council to inspect documents that she had requested. Ms Highton gave the applicant access to those documents that she had previously identified as coming within the applicant’s FOI request and which she had determined not to be “privileged”. This meant that the applicant was given access to the list of relevant documents in the Council’s DataWorks system and the hard copy of relevant documents in the relevant files and microfiche in the Genasys and manual system. In her affidavit, sworn on 24 August 2004, Ms Highton said that when giving the applicant access to these documents she said:
26 The applicant contended that she was not informed that documents had been removed from the files that she had been provided with.
“Here are all the files that are relevant to your FOI application. Feel free to peruse the files and pick out the documents you need. I have removed from the files any documents covered by legal professional privilege.
There are also documents created by third parties held on the files. You can look at them, but if you need to have any of the documents copied, then we will need to consult with the authors of the documents before we can give them to you.”
27 In giving the applicant access to documents, Ms Highton gave the applicant the hard copies of the relevant files and microfiche held by Council under the Genaysis and manual system. She also gave the applicant access to a computer, from which the applicant could access those documents on the DataWorks system that Ms Highton had previously identified as being relevant and not privileged. In accordance with Council’s open access policy, the applicant was left to her own devices to inspect the DataWorks documents, the files and microfiche that Ms Highton had provided. However, at no time was the applicant provided with the lists that Ms Highton had prepared on 21 January 2003. Nor did Ms Highton retain a copy of such a list. It was not until 28 June 2004 that Ms Highton sought to reproduce those lists, which were annexed to her affidavit. In her affidavit Ms Highton says that these lists would have been the same as those she had prepared in January 2003.
28 It is not disputed that on 28 January 2003, there were technical difficulties with the microfiche copying machine and the DataWorks system. However, the applicant had also arranged to conduct further inspections of the documents on 29 and 31 January 2003. She attended these days, but for a limited period. Ms Highton also endeavoured to have the microfiche machine attended to. In light of the technical difficulties being experienced by the applicant, Ms Highton offered the applicant additional dates to inspect the documents on 7 February 2003 and the following week. However, according to Ms Highton, the applicant did not take up this offer.
29 It is not disputed that at the time the applicant inspected the documents at the offices of the Council she pointed out to Ms Highton that documents were missing on the DataWorks system, which related to the Legal Services Committee. It would appear that these missing documents were identified on about 7 February 2003. Having identified these missing documents Adrian Panuccio, legal officer of the Council, assessed which of these were privileged. He then copied those that were not privileged and provided them to Ms Gilbert to forward to the applicant. They were forwarded on 10 March 2003, under the cover of a letter from Ms Holloway. That letter failed to state that there were other documents that had been identified as missing, to which access was being refused and the grounds for that refusal.
30 On 3 February 2003, Penny Holloway, General Manager of the Council, responded to the applicant’s internal review request. In that letter Ms Holloway said the following:
31 On 14 March 2003, the applicant lodged a complaint about the manner in which her FOI request had been handled with the Ombudsman’s Office. The complaint was investigated and the applicant and Council were advised about the outcome of that investigation on 17 July 2003. In his letter, the Ombudsman expressed the view that the documents relating to the Council’s legal cost in its litigation involving the applicant’s property, was not subject to legal professional privilege. On 28 October 2003, three months after the Ombudsman’s determination, Ms Holloway forwarded to the applicant a copy of the documents relating to Council’s legal costs in the litigation involving the applicant’s property.
“I have reviewed the matter fully and now state the following:
You received a letter on 21 January 2003 granting access to your files at North Sydney Council, so that you could make a selection of the documents you wished copied.
You viewed files at Council on 28, 29 and 31 January 2003.
Copies are being made for you of all the information you have requested with the exception of the information about legal costs.
Your request to obtain details relating to legal costs remains refused as it falls within the definition of legal professional privilege.”
32 In August 2003, Ms Gilbert re-examined the documents extracted by Ms Highton in January 2003 on the basis that they were privileged and for which access was refused. In her re-examination, she determined that 10 of these documents were not the subject of legal professional privilege. Copies of these 10 documents were forwarded to the applicant on 20 August 2003. It would appear that these documents were forwarded without any explanation as to why access to these had not been provided previously.
33 On 22 December 2003, Ms Gilbert and Ms Highton, when considering the applicants written submissions to the Tribunal, realised that they did not recall seeing any invoices that had been requested by the applicant. They also realised that such invoices were not held on the DataWorks system. They were held by the Finance Department. The relevant documents (3 in number) were then obtained from the Finance Department and Ms Gilbert said that she intended to provide a copy of these to the applicant at the planning meeting that had been scheduled for 13 February 2004. As the applicant did not attend this planning meeting and the following planning meeting, due to illness, Ms Gilbert forwarded these to the applicant on 22 July 2004. Again these documents appear to have been forwarded without any explanation.
34 On 25 October 2004, in accordance with directions of the Tribunal, the Council filed and served a list of documents that it held and which came within the applicant’s FOI request, and for which the exemption of legal professional privilege was claimed. This was the first time that the applicant had been provided with details of the documents, other than those relating to legal costs, for which Council had refused access on the grounds of legal professional privilege.
Conclusions
35 I found Ms Gilbert and Ms Highton to have given truthful and frank evidence.
36 I also find that on 21 January 2003, Ms Highton searched for documents held by Council that came within paragraph 1, 2 and 4 of the applicant’s FOI request. However, in my opinion, that search was primarily conducted in accordance with Council’s open access policy. This is consistent with the contents of the letter sent by Ms Gilbert on 8 January 2003 and the letter she prepared on 21 January 2003 as well as the letter sent by Ms Holloway on 3 February 2003. The effect of this was that at no time was the applicant given details of those additional documents that also came within her request which the DataWorks system had identified as being restricted and those Ms Highton had determined were privileged. In this regard I accept the evidence of Ms Highton as to what she said to the applicant on 28 January 2003 about not being given access to privileged documents. However, I find that her comments were of a general nature and that in light of the contents of Ms Gilbert’s letters and that of Ms Holloway the applicant could only have understood her comment to confirm previous advice that the documents she had been given access to did not include those documents relating to Council’s legal costs, which Council had claimed to be privileged. That is, Ms Highton’s comment was not sufficiently clear for the applicant, or any other person not privy to how Ms Highton had identified the documents that the applicant was to be given access to, to understand that Council held documents, in addition to the legal costs documents, for which access was also refused on the grounds of legal professional privilege. Had Ms Highton given the applicant copies of the lists she had prepared on 21 January 2003, which listed all the files and documents that Ms Highton had identified as containing documents or being documents that came within the applicants FOI request and explained what these lists meant as well as identifying from those lists the files from which she had extracted documents, there would have been limited opportunity for the applicant to raise her concern about adequacy of search. Instead, the applicant on examining the files and documents that she was given access to was left with the overwhelming impression that there were documents missing, which was correct. What she did not know was that these missing documents had in fact been identified as coming within her FOI request, but access was refused on the grounds of legal professional privilege. Nor was she advised of this fact in Ms Holloway’s internal review determination of 3 February 2003. Furthermore, over time, the applicant’s impression was confirmed when she received, without any explanation, copies of further documents.
37 In making these findings I wish to make it clear that there is no evidence before the Tribunal that Ms Gilbert or Ms Highton acted in bad faith. I accept that they believed that the Council’s open access policy was more favourable to the applicant, which it may have been in some aspects. However, as explained below that policy did not over-ride their duties and obligations under the FOI Act.
38 Notwithstanding the failures of Ms Highton, Ms Gilbert and Ms Holloway I am satisfied, on the material before the Tribunal that Council has adequately searched for all documents it holds and which come within the terms of the applicant’s FOI request. I find that, with the exception of a few documents held within the finance department of the Council, all documents relevant to the applicant’s FOI request were identified in January 2003.
Legal Professional Privilege
Relevant law
39 As mentioned above, an agency is able to refuse access to a document only on specified grounds: see s.25, FOI Act. One such ground is that the document is an “exempt document”: see s.25(1)(a), FOI Act.
40 An “exempt document” includes a document referred to in one or more of the provisions in Schedule 1 of the FOI Act (see s.6 FOI Act). In this application, the relevant exemption in Schedule 1 is as follows:
41 Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document where it is practicable to give access to a copy of the document from which the exempt matter is deleted and the FOI applicant wishes to be given such a copy.
“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.”
42 The principles in relation to legal professional privilege under the common law and under the Evidence Act 1995 (NSW) are well established following the High Court decision in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49, which was affirmed in Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner (2002) 213 CLR 543.
43 I recently dealt with these principles in Cianfrano v Premier’s Department [2004] NSWADT 225. In summary, these principles include the following:
44 The authorities constantly emphasise that for a document to attract the privilege it must be established that it came into existence for and was prepared for the obtaining or giving of legal advice or for use in pending in contemplated litigation (see O’Reilly v Commissioner of State Bank of Victoria (1982) 153 CLR 1 at 22). As mentioned above, following the decision in Esso (supra), this need not be the sole purpose for which the document came into existence but it must be the dominant purpose.
(a) legal professional privilege arises from a lawyer/client relationship and is the privilege of the client;
(b) the privilege applies to “confidential communications” between the lawyer (as legal advisor) and the client where the dominant purpose of the communication is either:
(c) the privilege also applies to confidential communications between government agencies and their salaried legal officers which were undertaken for the dominant purpose of obtaining or giving legal advice or for pending or contemplated litigation (see Waterford v Commonwealth (1987) 163 CLR 54 at 62 and 73);
(i) to enable the legal advisor to give or the client to receive legal advice; or
(ii) to be used in pending or contemplated proceedings. In such cases, confidential communications with third parties (non-agent third party) may also be privileged if they are for use in such proceedings (see Hynes supra at [37] and Law Society of NSW supra at [27]).
(d) the privilege extends to advice which is of a non-legal character where that non-legal advice is connected to the giving of legal advice or for contemplated or pending litigation (see Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 550; Waterford (supra) at 66; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246);
(e) the privilege extends to copies of documents that are not privileged where the copy is made for the dominant purpose of obtaining legal advice or for use in pending or contemplated litigation (see Australian Federal Police (supra) at 509 and 597).
(f) the privilege does not attach to documents that evidence transactions such as contracts, conveyances, declarations of trust, etc, even if they are delivered to a solicitor or counsel for advice or use in litigation (see Baker v Campbell (1983) 153 CLR 52 at 86, 112 and 122-123);
(g) any extension of the scope of the privilege must not go beyond the rationale for the privilege (see Law Society of New South Wales (supra) at [33-35] and the authorities cited therein). That rationale being “the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client” (see Fagan v State of New South Wales [2004] NSWCA 182 at [71];
(h) the privilege is waived if the confidential communication is disclosed to a third party, either expressly or inadvertently (see Mann v Carnell (1999) 201 CLR 1; Goldberg v Ng (1995) 185 CLR 83 and Attorney General (NT) v Maurice (1986) 161 CLR 475).
45 Where a solicitor forwards to his client a copy of a letter received from the solicitor of the opposing party and the letter is forwarded for the dominant purpose of receiving instructions and giving legal advice the communication of the letter is privileged. However, if the letter is forwarded for information only or another purpose it does not attract the privilege. That is, it is not connected with a confidential communication that is privileged. The same would apply to draft agreements prepared by the solicitor, on instructions from the client, and forwarded to the client in confidence for the dominant purpose of giving legal advice and/or seeking further instructions for the provision of legal advice (see Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCA 1181 and Australian Rugby Union Ltd v Hospitality Group Pty Ltd and Ors [1999] FCA 1061).
46 It is also well established that a disclosure of a privileged communication to a third party does not always result in a waiver of a privilege. This is particularly so where the disclosure is for a limited purpose (see Australian Rugby Union Ltd supra, Abigroup Ltd v Akins (1997) 42 NSWLR 623, State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224 and Woollahra Municipal Council v Westpac Banking Corp (1994) 33 NSWLR 529; c.f. Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125). This means, for example, where a solicitor ’s communication (e.g. a letter) with an opponent’s solicitor, discloses the contents of a privileged confidential communication between the solicitor and the client, and it is established that the circumstances were such that this disclosure was limited and that the opponent’s solicitor was bound to retain the confidentiality of that communication, then the privilege has not been waived in respect of a disclosure at large.
The evidence
47 The Council provided the Tribunal with a copy of the exempt documents on a confidential basis. These documents were contained in three leaver arch folders marked Volume 1, 2 and 3. In accordance with s.55 of the FOI Act, on 28 January 2005, the Tribunal heard submissions, in confidence, from the Council in respect of each of the exempt documents. During the in confidence hearing, having regard to the contents of the document in question, I indicated, subject to any submissions received from the applicant, those documents which in my opinion were privileged. As a result of that hearing the Council; a) granted the applicant access to some of the documents listed on the list of exempt documents prepared by Council in October 2004, b) granted the applicant access to numerous documents that were attached to the listed exempt documents and c) provided the applicant and the Tribunal with a revised list of documents for which the exemption legal professional privilege had been claimed and another list of the documents for which access had been granted.
48 Following the final day of hearing on 16 March 2003, I re-examined and re-considered the documents for which an exemption on the grounds of legal professional privilege has been claimed. The overwhelming majority of these documents consist of correspondence (letters, emails and faxes) between an officer of the Council and the Councils’ solicitors Mallesons Stephen Jaques together with file notes of conversations between officers of the Council and Council’s solicitors. There are also internal memoranda between officers of the Council which I am satisfied were prepared for the dominant purpose of obtaining legal advice from Council’s solicitor (e.g. Volume 1 document No 20) and are privileged.
49 The documents contained in Volume 3 of the exempt documents contain copies of a list of litigation matters that the Council was involved in at the time the list was prepared. That list is entitled “Current Matters List” and was prepared by the solicitors of the Council for the purpose of informing members of the Council and the Legal Services Committee of the Council of the status of these proceedings. An edited version of this list is available to the public and these were made available to the applicant for inspection when she attended the offices of the Council in January 2003. However, Council refused access to the whole document on the grounds that they were privileged. During the hearing of the matter the Council altered its position and only pressed their claim of exemption for those matters that related to prospects of success. In this regard I am satisfied that Council has made out its claim in respect of these details and I note that Council has agreed to give the applicant a copy of these Lists with the exempt material deleted.
50 Accordingly, I am satisfied that the documents listed in paragraph 51 below were brought into existence for the dominant purpose of legal advice or for use in contemplated or pending litigation and are therefore exempt under cl.10 of Schedule 1 of the FOI Act.
51 However, Council has failed to produce evidence to the Tribunal that establishes that the following documents were brought into existence for the dominant purpose of legal advice or for use in contemplated or pending litigation:
Volume 2
document 83 This is handwritten document described in the Council’s list as being “Meeting Notes” of Mr Raneri. On its face the document is a record of a meeting that Mr Raneri attended and it was not a meeting with the Council’s solicitors. The notes do not contain any indication that they were for the purpose of legal advice or for use in the litigation. Accordingly, on the material before the Tribunal, in my opinion this particular document is not privileged.
document 84 This document is a facsimile from Mr Ranerie to Ms Jagot of Mallesons Stephen Jaques, which evidences an agreement. As mentioned above, such a communication is not privileged and in my opinion it does not become privileged by sending it to the Council’s solicitors. Had the agreement been sent for the purpose of receiving legal advice then the position would have been different. In this case the document does not state that it was sent for that purpose.
document 96 This document is a draft affidavit for which the Council is only seeking exemption is paragraph 14. In my opinion, having regard to the content of that paragraph the communication recorded therein merely records what was said on a particular day by another person and it was not communicated for the purpose of obtaining legal advice or for use in pending litigation.
Volume 3
documents 9, 10, 11 and 12 These documents all relate to the same subject matter and their content does not give rise to an inference that they came into existence for the purpose of legal advice or for use in pending litigation. The fact that the correspondence emanated from the Council’s solicitors does not make the communication in that correspondence privileged. As there is no other evidence before the Tribunal and no other claim for exemption is made, I am not satisfied that these documents are exempt.
Conclusions
document 28 Attached to this particular Current Matters List is a PDS legal costs summary and I have understood the comments of Council in its revised list of exempt documents to mean that privilege is not claimed in respect of this document. In the event my understanding is incorrect I find that this document is not privileged.
document 36 & 37 These documents are briefs to the Legal Services Committee from the Property and Administration Officer of the Council. The contents of these documents do not give rise to an inference that they came into existence for the purpose of legal advice or for use in pending litigation. As there is no other evidence before the Tribunal and no other claim for exemption is made, I am not satisfied that these documents are exempt.
52 Accordingly, I find that the Council’s decision in respect of the following documents listed in the Council’s revised list of exempt documents is the correct and preferred decision:
53 I also find that the Councils decision in respect of the following documents is not the correct and preferred decision:
Volume 1 : Document No 1 (covering letter only), 2, 3, 4, 5 (covering letter only), 6 (3rd letter only), 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 (covering letter and draft letter attached only), 22 (covering letter and draft letter attached only), 23, 24 (covering letter and attached file note only), 27 (covering letter and draft letter attached only), 28, 29, 30 (covering letter only), 31 (covering letter only), 32, 33, 34 (covering letter only), 36 (covering letter only), 37 (covering letter only), 39, 43, 44, 45, 46 (covering letter only), 47, 48, 49 (covering letter only), 51 (covering letter only), 52, 55 (covering letter only), 56, 57, 59 (covering letter only), 60, 62 (covering letter only), 64 (covering letter only), 66 (covering letter only), 67 (covering letter only), 68 (covering letter and letter attached only), 69 (covering letter and letter attached only), 70, 73, 74, 77 (covering letter only), 78 (covering letter only), 79 (covering letter only) and 80 (covering letter only)
Volume 2: Document No 81 (covering letter and file note attached only), 85, 87 (covering letter only), 89 (covering letter only), 92, 96, 98 (covering letter and draft letter attached only), 102 (covering letter only), 103, 104 (covering letter only), 106, 107, 108, 109 (covering letter only), 110 (covering letter only), 111, 112 (all three documents), 113, 114 (covering letter only), 115, 116, 117, 118 (covering letter only), 119 (covering letter only), 120 (covering letter and the first letter attached only), 121 (covering letter and the first letter attached only), 122, 123 (covering letter only), 125 (covering letter and attached draft affidavits),126 (covering letter only), 127, 128 (covering letter only), 131, 132, 133
Volume 3: Document No 1 (covering letter and attachment thereto), 2 (covering letter only), 3 (covering letter and attachment thereto), 4, 5 (covering letter only), 6, 7 (covering letter and letter attached only), 8 (covering letter and letter attached), 13 (covering letter and letters and notes attached), 16 (details, to the extent that they relate to prospects of success, in the columns headed “description” and “results” of the Current Matters List, email from McIntosch to Raneri dated 10 October 2001, email from Raneri to Kaposi dated 12 October 2001 and note by Kaposi dated 12 October 2001 only), 17, 19, 20, 21 (covering letter only), 22 (covering letter, memorandum, file notes and photographs only), 24 (details, to the extent that they relate to prospects of success, in the columns headed “description” and “results” of the Current Matters List only), 25 (details in the columns headed “Status/Advice on prospects ” of the Current Matters List only), 26 (details in the columns headed “Status/Advice on prospects ” of the Current Matters List only), 27 (details in the columns headed “Status/Advice on prospects ” of the Current Matters List only), 28 (Memorandum of Adrian Panuccio dated 18 September 2002, Register of Appeals & Court Action Matters and the details in the columns headed “Status/Advice on prospects ” of the Current Matters List only), 29 (details in the columns headed “Status/Advice on prospects ” of the Current Matters List only), 30, 31, 32 (Memorandum of Adrian Panucccio dated 25 March 2003, Draft tender for legal services and details in the columns headed “Status/Advice on prospects ” of the Current Matters List only), 33 (details in the columns headed “Status/Advice on prospects ” of the Current Matters List only), 34 (Memorandum of Adrian Panuccio dated 5 November 2003, Register of Appeals & Court Action Matters and the details in the columns headed “Status/Advice on prospects ” of the Current Matters List only), 35, and 38.
Conduct of the Council
Volume 2 : 83, 84 and 96
Volume 3: 9, 10, 11 12, 28, 36 and 37
54 S.58 of the FOI Act enables the Tribunal to report “improper conduct” by an officer of an agency to the relevant Minister. “Improper conduct” is described in the section to occur when an officer of an agency fails “to exercise in good faith a function conferred or imposed on the officer by or under the Act.”
55 As I mentioned in paragraph 6 above, in my opinion there is no evidence of improper conduct, as defined in s.58 of the FOI Act by any officer of the Council. However, in my opinion, the Council needs to re-examine its procedures for dealing with an FOI request, in particular its procedures in respect to what is required in the written notification of its determination, initially and on an internal review where access to documents is to be refused. As explained below, in my opinion, the Council failed to fully comply with these requirements: see s.28(2) of the FOI Act.
56 As mentioned in paragraph 7 above, within 21 days of receipt of an FOI request, an agency is required to identify documents that it holds, which come within the terms of the request and make a determination as to whether the applicant is to be granted access to the documents identified or whether access is to be refused. Furthermore, under s. 28 of the FOI Act, an agency is required to give the FOI applicant written notification of its determination. In that written notification an agency is required to disclose the name of the officer who made the determination, the date it was made and where it had been determined to refuse access to documents, the reason for refusal and the findings of fact underlying those reasons: see 28(2)(a), (e), and (g) FOI Act. The written notification must also advise the FOI applicant of his/her appeal rights: see s.28(2)(g)(ii) FOI Act. These appeal rights are an important feature of the FOI Act in that an FOI applicant is able to seek internal review of the original determination where an agency has refused access to documents as well as an external review if dissatisfied with the internal review determination. No such right exists under the Council’s open access policy.
57 In my opinion, the object of the written notification requirements in the FOI Act is two fold, first to ensure that agencies have met the requirements of the FOI Act in respect of access to documents and second to provide the FOI applicant with sufficient information about the documents for which access is refused so that that the FOI applicant can make an informed decision on whether or not to seek review of a determination by the agency. The extent of the information provided will depend on the circumstances. However, I note that in many cases agencies prepare a list of documents for which an exemption is claimed. That list usually provides details of the date of the document, the nature of the document (i.e. letter, file note etc.), its author, the recipient and the exemption relied on. No such list is provided in respect of documents for which access is granted and in my opinion this is consistent with the provisions of the FOI Act.
58 In this application it was not disputed that Council received the applicant’s FOI request on 27 December 2002. On receiving the request Council was entitled to request an advanced deposit for the costs of dealing with the applicant’s FOI request if it was of the view that the application fee was not sufficient to cover its costs: see s.21 FOI Act. Where such a deposit is requested, Council is entitled to refuse to continue to deal with the applicant’s request until such a deposit is paid: see s.22 FOI Act. In this application, no advance deposit was requested. Accordingly, the Council was required to make a determination by 17 January 2003. I note that Ms Gilbert had formed the view that the 21 days was 21 working days, which was conceded to be incorrect.
59 In my opinion, for the reasons I have already indicated, Ms Gilbert’s letter of 8 January 2003 was not intended to be a written notification of a determination that she had made pursuant to s.24 of the FOI Act even though she indicated that access would be granted to certain documents and refused for others. It is noted that enclosed with that letter was a pro-forma FOI application form prepared by Council, which the applicant was requested to complete. There is no such requirement under the FOI Act and the applicant’s letter of 23 December 2002 was all that was required in order for her to make a request under the Act.
60 In my opinion, Ms Gilbert’s letter of 21 January 2003 was also not intended to be a written notification of a determination that she made pursuant to s.24 of the FOI Act. As I have indicated above, at all times Ms Gilbert appears to have operated under the Council’s open access policy. However, I do find that on 21 January 2003, Ms Highton made a determination as to what documents held by Council came within the terms of paragraphs 1, 2 and 4 of the applicant’s FOI request and which of these the applicant would be given access to and those for which access was to be refused on the grounds of legal professional privilege. It was notification of the details of this determination (i.e. details of all the documents for which access was refused and not only those relating to costs) that the applicant should have been advised of in accordance with s.28(2) of the FOI Act. Although this determination was made outside the 21 day period, it was made shortly thereafter and in the circumstances was not deliberately delayed. The failure may have arisen because Ms Highton, was given responsibility for determining what documents were privileged and for which the applicant was to be refused access, but she had no responsibility in respect of notifying the applicant of her determination. This was the responsibility of Ms Gilbert.
61 As mentioned above, as the applicant had not received notification of the Council’s determination by 17 January 2003, she made an application for internal review pursuant to ss. 24(1) & 34 of the FOI Act. Where an application is made for internal review s.34(4) of the FOI Act requires an agency to determine the internal review within 14 days and to provide the applicant with written notification of the determination in accordance with s.28(2) of the FOI Act: see s.34(4) FOI Act. The purpose of an internal review is to have another person within the agency to consider the FOI request a fresh. That person is not to have had any involvement with the original determination. In this case, Ms Holloway, the General Manager of the Council made the internal review determination. Although Ms Holloway’s determination was made within the requisite time, the written notification of her determination as set out in her letter of 3 February 2003 failed to give any details about the documents that had been extracted by Ms Highton on 21 January 2003. Nor did the letter make any reference to the applicant’s appeal rights. Accordingly, this notification of the internal review application also failed to comply with the requirements of s.28(2) of the FOI Act. The Tribunal did not receive any evidence from Ms Holloway as to what information she was provided with when making her determination. At the same time there is no evidence to indicate that she acted in other than good faith when making her determination. However, in light of the evidence before the Tribunal, I am left with the impression that she too was either unfamiliar with the notification requirements of the FOI Act, or she believed that these did not need to be followed as the Council’s open access policy proved the applicant with greater access to documents held by Council that provided under the FOI Act.
62 As a result of this belief Ms Holloway and Ms Gilbert, who were responsible for responding to the applicant’s FOI request failed to meet the obligations of Council under the FOI Act. The FOI Act does not prohibit the Council from giving effect to the open access policy when responding to an FOI request. This policy can be incorporated into Council’s procedures for responding to FOI requests as refusal to access to documents is discretionary: see s.25(1) of the FOI Act. That is, even though there is a basis, as prescribed under the Act, for Council to refuse access to a particular document, Council may give access to that document. However, if a determination is made to refuse access to any document, this refusal must be on grounds set out in the FOI Act and Council must comply with the requirements of the written notification provisions of the FOI Act, which includes informing the FOI applicant of the existence of these documents.
63 The applicant also raised concerns about the manner in which she was given access. In her FOI request the applicant had requested both access to and copies of documents. Accordingly, by providing the applicant with an opportunity to examine all the relevant documents to which Council had determined she could have access to in the DataWorks system and the relevant microfiche and hard copy files from the other two systems was appropriate. The question is whether the applicant should also have been given copies of each of these. There was no evidence about the number of documents that were required to be copied, however, it is noted that in her letter of 21 January 2003, Ms Gilbert advised the applicant that her request for copies of all files was considered unreasonable (see paragraph 19 above). Ms Gilbert did not give any evidence as to why she considered the request for copies as being unreasonable. As mentioned above, a ground on which copies could have been refused was the fact that in making copies available would result in unreasonably diverting the Council’s resources (see paragraph 9 above and s.27(3)(a) of the FOI Act). In my opinion this was not the basis on which Ms Gilbert formed the view that the applicant’s request for copies was unreasonable. Again the basis of the unreasonableness would appear to arise from what Ms Gilbert considered to be a reasonable form of access, as provided in the Council’s open access policy. That is, the applicant was given the opportunity to examine all the relevant documents so that she could identify which documents she required a copy of. I find that the applicant consented to this approach in that she did in fact attend the offices of the Council and she flagged copies of those documents she required a copy of. It was regrettable that she experienced difficulties with the DataWorks system and the microfiche machine. These difficulties were attended to by Ms Highton and she was at all times willing to allow the applicant further access to examine the documents and to request copies of those she wanted to have copies of. However, the applicant chose to no longer avail herself of this opportunity.
64 Although this may not necessarily have relieved the Council from its obligations under s.28(2) of the FOI Act to provide copies of all documents as requested, in my opinion, it is unnecessary to decide this issue as it would appear that at the time of the hearing the applicant had obtained copies of those documents she had indicated and continued to indicate that she required. Where, as in this case, an FOI applicant seeks copies of all documents that are described in a broad and general class of documents and the agency has numerous documents that come within that general description a practical approach as adopted by the Council in this case would appear to be desirable. This would avoid unnecessary costs to both the applicant and the agency concerned.
65 The final matter raised by the applicant was the Council’s delay in providing the applicant with the documents relating to legal costs following the decision of the Ombudsman in July 2003. As mentioned above, these documents were provided, without deletions, to the applicant on 28 October 2003. It is difficult to understand how the Council came to the view that the documents were privileged. However, on the material before the Tribunal, it would appear that this view, even though it was incorrect, was genuinely held. In this regard I note that the Council sought further legal advice, which it was entitled to do, following the decision of the Ombudsman. Although the position of the Council was misconceived, and there was a further delay in obtaining legal advice, in my opinion, there is no basis to make adverse findings against any officer of the Council in this regard.
Orders
66 The Tribunal orders
(a) the decision of the Council to refuse the applicant access to the documents referred to in paragraph 52 of this decision is affirmed:
(b) the decision of the Council to refuse the applicant access to the documents referred to in paragraph 53 of this decision is set aside and in substitution thereof a decision that the applicant be granted access to these documents;
(c) in respect of those documents referred to in (a) above which are exempt in part, Council to provide the applicant with a copy of those documents with the exempt material deleted within 28 days of this decision; and
(d) Council to provide the applicant with a copy of the documents referred to in (b) within 28 days of this decision.
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