Retain Beacon Hill High School Committee Inc v Director General Attorney General's Department

[2006] NSWADT 262

CITATION:	Retain Beacon Hill High School Committee Inc v Director General Attorney General's Department [2006] NSWADT 262
DIVISION:	General Division
PARTIES:	APPLICANT Retain Beacon Hill High School Committee Inc RESPONDENT Director General, Attorney General’s Department
FILE NUMBER:	053408
HEARING DATES:	24/07/06
SUBMISSIONS CLOSED:	08/22/2006
DATE OF DECISION:	09/07/2006
BEFORE:	Handley R - Judicial Member
CATCHWORDS:	access to documents - adequacy of search - access to documents - business affairs - access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	BY v Director-General, Attorney General’s Department (No 2) [2003] NSWADT 37 Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 FA v Commissioner of Police, NSW Police Service [2003] NSWADT 196 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133 Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135 Mann v Carnell (1999) 201 CLR 1 Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 Saggers v Director General, Attorney General’s Department [2005] NSWADT 193 Saleam v Director General, Department of Community Services [2002] NSWADT 41 Trade Practices Commission v Sterling (1979) 36 FLR 244 Vincent Neary v State Rail Authority [1999] NSWADT 107
REPRESENTATION:	APPLICANT R Cianfrano, agent RESPONDENT A Johnson, solicitor
ORDERS:	The decision under review is affirmed.

REASONS FOR DECISION

Background

1 On 22 November 2005, Sue Covey, the Secretary of the Retain Beacon Hill High School Committee Incorporated (‘the Committee’), acting on behalf of the Committee, applied to the Tribunal for the review of a decision made by the Director General of the Attorney General’s Department (‘the Department’) on 21 October 2005, confirming a decision made by a departmental officer on 19 September 2005, to refuse access to certain documents requested by the Committee. The Committee’s application, dated 29 August 2005, requesting access to “all documents and communications in relation to ... Beacon Hill High School (BHHS) from 1 January 2000 to 28 February 2005”, is one of a number of applications made by the Committee to NSW Government departments/agencies relating to the site of the former Beacon Hill High School. The closure of the High School and the proposed sale of the site by the Department of Education and Training have attracted significant community attention.

2 In the original determination dated 19 September 2005, the departmental officer, having identified 62 relevant documents, granted access in full to certain documents, but refused access to others or parts of others pursuant to s 25 and Sch 1, Pt 2, cl 6, cl 7 and cl 10 of the Freedom of Information Act 1989 (‘the FOI Act’), on the ground that they contained exempt information. In his letter dated 21 October 2005 confirming the original determination, the Director General of the Department stated, in relation to the documents said to be exempt in whole or in part by reason of legal professional privilege (cl 10 of Sch 1):

“The documents in question constitute confidential professional communications undertaken for the dominant purpose of seeking or giving legal advice or in connection with anticipated or pending litigation, and the privilege protects such communications from disclosure in legal proceedings.”
3 In relation to documents said to be exempt in whole or in part by reason of the business affairs exemption (cl 7 of Sch 1), the Director General stated that disclosure of this information would reveal “information concerning the business affairs of the Crown Solicitor’s Office and other persons, and could reasonably be expected to prejudice the future supply of such information to the Agency”. The Director General did, however, release six additional documents with material deleted by reason of this exemption.

4 In relation to the document said to be exempt in part by reason of the personal affairs exemption (cl 6 of Sch 1), the Director General said the deletion was of a mobile phone number and “disclosure of this information would involve the unreasonable disclosure of information concerning the personal affairs of an individual”.

5 At the hearing on 24 July 2006, a further three documents were released, two in whole and in one in part with material deleted, and on 1 August 2006, an additional 28 documents were released, 27 in whole and one in part. As a result of the documents to which access has been granted during the course of these proceedings, only 22 of the 62 documents originally identified are in dispute, and of these 22 disputed documents, nine have been released in part.

The Relevant Law

6 Pursuant to s 16(1) of the FOI Act, “[a] person has a legally enforceable right to be given access to an agency’s documents”. However, s 25(1)(a) permits an agency to refuse access to a document if it is an “exempt document”, the onus being on the agency to establish this. Section 25(4) provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and it appears to the agency that the FOI applicant would wish to be given access to such a copy.

7 Section 6(1) defines ‘agency’ as including a Government Department or public office, and ‘exempt document’ as including a document referred to in any one or more of the provisions of Sch 1. The exempt documents in Sch 1 include, relevantly, those specified in cl 6, cl 7 and cl 10, as follows:

6. Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

7. Documents affecting business affairs

(1) A document is an exempt document:

(a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or

(b) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and

(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or

(c) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.

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.

Clause 6

8 For a document to be exempt under clause 6, firstly, it must contain “information concerning the personal affairs” of a person other than the applicant and, secondly, the disclosure of that information would be “unreasonable”. What constitutes the “personal affairs” of a person has been discussed in a number of decisions both of the courts and of the Tribunal, but it appears that the general approach to be taken by decision-makers should be one favourable to the applicant. While recognising this, in Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 (‘Gilling’), at paragraph 33, Deputy President Hennessy said the purpose of the personal affairs exemption is to allow the public interest in personal privacy to be balanced against the public interest in people having open access to information held by government. Section 31 of the FOI Act requires the agency to take “such steps as are reasonably practicable” to consult any person whose personal affairs may be disclosed by providing access to a document.

9 The leading authority on what constitutes the “personal affairs” of a person is the NSW Court of Appeal decision in Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 (‘Perrin’s case’) where, at 625, Kirby P described “personal affairs” as meaning “the composite collection of activities personal to the individual concerned”. He said that “the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales police” could not be classified as disclosing information concerning their personal affairs. However, a distinction may be drawn between public servants acting in the course of their duties, and private individuals, as in Gilling, where Deputy President Hennessy held that the names and addresses of persons who objected to a development were personal information.

10 With regard to when the disclosure of information would be unreasonable, in the recent decision in Martin v Commissioner of Police, NSW Police [2005] NSWADT 23, the Tribunal cited Saleam v Director General, Department of Community Services [2002] NSWADT 41, at paragraph 38, where the President followed the approach adopted by the Commonwealth Administrative Appeals Tribunal in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257, at paragraph 51:

“Whether a disclosure is ‘unreasonable’ requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was being obtained, the likelihood of the information being information that the person concerned would not wish to be disclosed without consent, and whether that information has any current relevance.”
11 The Department has claimed that cl 6 applies in respect of one document (document 54) and has released that document with the deletion of a mobile telephone number of an officer at the Department of Education and Training. The Department submitted that, as with a person’s home address ( Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133), a person’s mobile telephone number concerns the person’s personal affairs. A work mobile telephone number is generally provided to others on a more restricted basis than the person’s office telephone number, and there is no public interest in making the relevant officer at the Department of Education and Training’s mobile contact details available to the applicant: if necessary, he can be contacted through the Department.

12 In my view, in the context of a large government department, where an officer can otherwise be contacted by means of a land line, and the release of the officer’s mobile telephone number is ordinarily limited to those with whom the officer is in a close working relationship or with whom the officer has a personal or private relationship, the officer’s mobile telephone number is information affecting the officer’s personal affairs. There appears to be no public interest in making that mobile telephone number more broadly available. While the Department has not provided any evidence with regard to the view of the officer about the release of the information, nevertheless, I am prepared to assume that most individuals would not wish their personal mobile telephone number to be released in these circumstances without their consent. Thus, to release that information would involve an unreasonable disclosure of information concerning the officer’s personal affairs and so the information is protected by the exemption in cl 6. I am therefore satisfied that the telephone number in document 54 is exempt information.

Clause 7

13 Relevantly, for a document to be exempt under cl 7(1)(c), first, the document must contain information concerning the business, professional, commercial or financial affairs of any agency or other person and, second, relevantly, disclosure of the information could reasonably be expected to have an unreasonable adverse effect on those affairs.

14 In Vincent Neary v State Rail Authority [1999] NSWADT 107 (‘Neary’), at par 33, the President of the Tribunal, O’Connor DCJ, considered the meaning of the term ‘financial affairs’:

“I agree that expenditures on external professional services involve the conduct of the financial affairs of an agency. ‘Financial affairs’ in this context would also, I consider, cover the negotiation of fee arrangements with external providers, including such matters as the hourly rates charged, and the actual amounts paid. I am satisfied that the information contained in the invoices relates to ‘the financial affairs’ of the agency.”
15 The President said, at par 35, that the Tribunal must adopt an objective approach in assessing what effect can reasonably be expected from the disclosure of the information, and the expectation must be more than a mere risk. Turning to the facts of that case, he said:
“40. As to the information in relation to expenditure on services provided by the Crown Solicitor's Office, release of information as the total amounts paid does not, I consider, place at risk in any meaningful way the nature of the arrangements that might exist between the agency and that Office. The only information shown in the invoices which might, arguably, fall within the protection of the exemption is the reference (found in hand-writing on two of the invoices) showing a multiple of a number (the hours of service rendered) and an hourly rate.

41 That information does, I consider, bear on the contractual relationship between the agency and the Office. It gives an insight into what rate the Office charges for a certain class of work. That information, if known to others with whom the agency deals in relation to the provision of legal services, might give an advantage to those third parties in negotiation of rates. Consequently, applying the tests referred to, I consider that the hand-written references to the hours and hourly rates should be exempted from disclosure.”

16 The Department has claimed that the whole or parts of documents 1, 5, 9, 20, 59, 60 and 63 would reveal the hourly rates charged for work undertaken by the Crown Solicitor’s Office (‘the CSO’) and are therefore exempt under cl 7. Ms Leanne Spencer, a paralegal in the Legal Practice Section of the CSO, provided a written statement dated 19 May 2006 and gave evidence at the hearing. She subsequently provided a further statement dated 1 August 2006. Her evidence was that if the hourly rates charged by the CSO in these matters, the amount of time spent on the work performed, and the total amount billed were known to the CSO’s competitors, this would reduce the CSO’s ability to compete with the private sector in providing legal services to the NSW Government. The Department submitted that this information comes within the meaning of the expression ‘financial affairs’ and disclosure of the information could reasonably be expected to have an unreasonable adverse effect on those affairs.

17 Ms Covey gave evidence that, at the NSW Parliament, the Committee were given access to and were permitted to photocopy Landcom and Department of Education and Training documents relating to Beacon Hill High School provided to the NSW Legislative Council in response to a call for papers in September 2004. Among these documents were a three page document comprising a tax invoice, dated 21 January 2004, submitted by the CSO to the Department of Education and Training for the CSO’s professional costs in relation to the closure of Beacon Hill High School, together with a covering letter dated 21 January 2004, and a schedule detailing the amount of time spent performing particular work, the fee earner and the charge for that work, together with the total amount charged. From this information, the hourly rate charged can be deduced. This three page document comprises document 60 in respect of which the CSO seeks a part exemption for the tax invoice itself and the part of the schedule detailing the time spent on particular work, the fee charged for that work and in some instances part of the description of the work.

18 I have examined documents 1, 5, 9, 20, 59, 60 and 63. As stated in the Schedule of Documents provided by the Department, the exemptions claimed for these seven documents are in respect of the hours of service committed to particular tasks and the hourly rates charged by the CSO for those tasks. An additional exemption under cl 10 claimed for document 5 is discussed in relation to that clause, below. In my view, the hourly rate charged for professional services undertaken by the CSO and the hours committed to those tasks falls into the same category as that discussed by the President in Neary at par 41, quoted above, providing an insight into the rates charged by the CSO for particular classes of work, the disclosure of which could reasonably be expected to have an unreasonable adverse effect on its financial affairs, thus attracting the exemption permitted by cl 7(1)(c)(ii).

19 The Committee was granted access to documents relating to the closure of Beacon Hill High School that were produced pursuant to an Order for Production of the NSW Legislative Council (made under Standing Order No 52) addressed to the Department of Education and Training and to Landcom, dated 21 September 2004. On 5 October 2004, four boxes of documents were produced by the Director General of the Premier’s Department in response to the Order, privilege being claimed in respect of only one box of documents. The Committee states that document 60 was located in one of the three boxes of documents in respect of which privilege was not claimed.

20 The fact that the Committee has gained access to document 60 by this means and therefore to the hourly charge rate stated therein in respect of which an exemption is claimed, is not determinative of the character of the document: BY v Director-General, Attorney General’s Department (No 2) [2003] NSWADT 37; FA v Commissioner of Police, NSW Police Service [2003] NSWADT 196. There was no public release of this document by the CSO, which was not one of the agencies to whom the Order for Production was addressed, and the CSO has not waived the privilege claimed. In my view, the CSO is still entitled to claim a partial exemption for part of this document for the reasons stated above.

Clause 10

21 The NSW Court of Appeal has recently considered the application of clause 10 in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84. McColl JA, with whom Handley and Hodgson JJA agreed, explained:

“67. Legal professional privilege is a rule of substantive law which enables a person to resist the giving of information or the production of documents to a third party which would reveal confidential communications between the person and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings: Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (at [9]) per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Esso Australia Resources Ltd v Commissioner of Taxation .

68. The rationale of legal professional privilege is “that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline”: Grant v Downs (at 685); Attorney-General (NT) v Maurice (at 487); see also Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 per Mason J (at 74), per Deane J (at 114), per Dawson J (at 128).

69. Waterford v The Commonwealth of Australia confirmed that legal professional privilege extends to confidential professional communications between government agencies and their legal representatives if made with the requisite purpose...

73. Once it is established that the legal practitioner was acting in the requisite capacity, a confidential communication will attract privilege even if it contains extraneous matter as long as it was prepared for the dominant purpose of giving legal advice.”

22 That case, like this one, concerned the first head of legal professional privilege, legal advice privilege, the other head being litigation privilege. McColl JA, at par 76, stated: “Legal advice privilege attaches to confidential communications between lawyers and their clients seeking or giving legal advice.”

23 In Saggers v Director General, Attorney General’s Department [2005] NSWADT 193, at par 21, the President of the Tribunal, O’Connor DCJ, relied on Lockhart J’s “well-known statement describing the various types of documents that can be the subject of a claim for legal professional privilege” in Trade Practices Commission v Sterling (1979) 36 FLR 244, at 245-6:

“His Honour described the categories as follows:

(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them.

(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used.

(c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance.

(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf.

(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence.

(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action.

(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.”

24 It should also be noted that legal professional privilege can be waived, either expressly or impliedly, by conduct inconsistent with the confidentiality claimed: Mann v Carnell (1999) 201 CLR 1; Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135 at par 53 to par 60. The burden of proof is on the party seeking to establish that the privilege has been lost.

25 Taking into account the documents released by the CSO either in whole or in part on 1 August 2006 after the hearing, the CSO maintains its claim to an exemption under cl 10 in respect of the whole or part of the following documents: 3, 4, 5, 7, 10, 11, 13, 14, 15, 17, 18, 19, 23, 24, 49, and 61.

26 In this case, I have no doubt that there was a solicitor-client relationship between the CSO and both the Department of Education and Training (file numbers EDU05702095 and EDU05702096) and Landcom (file number LHC09000033), each of which separately sought legal advice in relation to the closure of Beacon Hill High School. I have examined the relevant documents in respect of which an exemption is claimed: I am satisfied that (1) by letter dated 10 December 2003 (document 49) the Department of Education and Training instructed the CSO to provide further legal advice concerning a matter related to the closure of the School (file number EDU05702096); and (2) by letter dated 21 October 2003 (document 7) Landcom sought legal advice concerning the site of the School (file number LHC09000033). Leanne Spencer, an employee of the CSO, provided written and oral evidence supporting the existence of the solicitor-client relationships.

27 I am therefore satisfied that documents 49 and 7, mentioned above, were confidential documents made for the purpose of obtaining legal advice. Turning to the documents that followed those requests for advice, first, in relation to file number EDU05702095, exemption is claimed for the whole of document 61. This document comprises legal advice from the CSO in relation to the closure of the School and I am satisfied that it should be privileged.

28 Second, in relation to file number EDU05702096, exemption is claimed for the whole of documents 14, 15, and 18 (comprising legal advice or draft legal advice), and part of 17 and 24 (requests for advice - the parts comprising transcripts, in respect of which the advice was sought, were released). Having examined these documents, I am satisfied that they comprise requests for legal advice or advice given in response. Exemption is also claimed for documents 10 (as to part), 13, 19, and 23. Having examined these documents, I am satisfied that they comprise file notes, including handwritten notes and a memorandum, recording communications between CSO officers and officers of the Department of Education and Training in relation to the legal advice, and as such they should be privileged.

29 Third, in relation to file number LHC09000033, exemption is claimed for document 5 (see also above in relation to cl 7(1)(c)), acknowledging Landcom’s instructions requesting legal advice, together with documents 3 and 4, comprising a letter and a file note concerning the instructions. Having examined these documents, I am satisfied that they all concern the request for legal advice and should be privileged.

30 Thus, I am satisfied that the documents reviewed, in respect of which the CSO has maintained its claim for exemption, should be categorised as exempt documents.

Sufficiency of Search

31 In Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195, the President of the Tribunal, O’Connor DCJ, reaffirmed that where (1) the applicant places credible evidence or submissions before the Tribunal in support of an assertion that the agency has failed to conduct a thorough search for documents to which access was sought in the FOI application, and (2) the Tribunal is satisfied that there is an arguable case that the agency has, therefore, failed to properly determine the application and that, as a consequence, there has been a deemed refusal of the application (section 24(2) of the FOI Act), then (3) the Tribunal may give directions of a kind that will enable it to determine whether a deemed refusal has taken place.

32 The Committee questions the adequacy of the CSO’s search for documents in response to its FOI application. The Committee contends that the Schedule of Documents identified by the CSO in response to the FOI application is “deficient and incomplete”. The Committee notes that certain documents released refer to other documents that are not listed in the Schedule, and that the Schedule does not include documents that it claims must have been raised in response to the FOI application and proceedings commenced by the Committee in the Tribunal, for example, in relation to discussions Ms Covey had with officers of the CSO during 2004 and early 2005.

33 The Department submits that documents relating to the Committee’s FOI applications and proceedings, in respect of which the CSO was instructed to act, do not relate to the advice given by the CSO in relation to Beacon Hill High School as such. Rather they relate to FOI proceedings, and thus do not fall within the scope of the Committee’s FOI application to the CSO.

34 Ms Spencer gave evidence at the hearing that, in May 2006, she examined both the electronic and hard copies of the three files identified as being relevant to the Committee’s FOI application, referred to in par 26 above. After the hearing, the CSO filed a further written statement from Ms Spencer dated 1 August 2006. Following submissions made by the Committee during the course of the hearing, Ms Spencer said she was instructed to conduct a search of two further files (EDU05702014 and EDU53400789), neither of which has the words ‘Beacon Hill High School’ in the title. File EDU05702014 contained a letter instructing the CSO to provide legal advice on the closure of government schools and the advice given by the CSO in response to those instructions. Neither document makes any reference to Beacon Hill High School. File EDU53400789 contained a letter instructing the CSO to provide legal advice in relation to the disposal of land vested in the Crown, and the advice given by the CSO in response to those instructions. Neither document makes any reference to Beacon Hill High School.

35 Ms Spencer said she had also conducted or arranged for additional searches on each of the four databases held by the CSO. First, on the CSO’s record management system (known as ‘TRIM’) for files and documents with the words ‘Beacon Hill High School’ in the title. All the documents identified in the search result had already been included in the Schedule of Documents provided in response to the Committee’s FOI application. Second, Ms Spencer requested the CSO Records section to conduct a search for the words ‘Beacon Hill School’ in documents created in the period 1 January 2000 to 15 January 2003, when TRIM came into operation. The only relevant documents identified falling within the scope of the FOI application had already been included in the Schedule. Third, Ms Spencer requested a search of the CSO’s Open Practice Management System (‘OPMS’), that tracks matters in which the CSO is instructed. No relevant documents not already identified were revealed. Fourth, Ms Spencer conducted a search of the CSO’s Advisings database (‘ISYS’) using the words ‘Beacon Hill High School’. Again, this revealed no further documents within the scope of the FOI application.

36 The Committee, in its final submissions dated 18 August 2006, drew attention to what it claimed were anomalies with a number of documents. The Department, in its final submissions dated 22 August 2006, has responded to those alleged anomalies and, in my view, has satisfactorily addressed the matters raised. For example, the Committee noted that document 50 was a fax from John McDonnell to Wayne Freakley rather than, as recorded in the Schedule, from Wayne Freakley to John McDonnell. The CSO confirmed this was so. The Committee also noted that document 46, a file note, bears no name and signature. The CSO noted that Ms Spencer gave evidence at the hearing that the author was John McDonnell. In my view, these alleged anomalies are relatively minor and are not an indication that the CSO’s search was not sufficient.

37 The outstanding issue raised by the Committee is whether the search was insufficient because the CSO should have included in the Schedule of Documents provided in response to the FOI application, its files relating to the FOI proceedings commenced by the Committee in the Tribunal. I note that the original FOI application, dated 29 August 2005, requested:

“All documents and communications in relation to the Attorney General’s Department and the Crown Solicitor’s Office and the 40 business centres and any other agency and/or agent in relation to the NSW Government High School defined as Beacon Hill High School (BHHS) from 1 January 2000 to 28 February 2005...”
38 The Department submits that documents created by the CSO in relation to FOI proceedings commenced by the Committee do not fall within the scope of the FOI application because (par 8 of the Department’s Supplementary Submissions filed on 11 July 2006):
“they do not relate to advice done by the Crown Solicitor in relation to Beacon Hill High School. Rather they relate to FOI proceedings where the Crown Solicitor was instructed to act.”
39 I note that the Committee had made a similar FOI application in April 2005, that 62 documents were located in the consequent search and were provided to the determining officer, but in a Review of the Determination dated 16 May 2005, the review officer refused to deal with the application (pursuant to s 22(3) of the FOI Act) because an advance deposit was not paid within the prescribed time. The Committee also filed FOI applications with other NSW Government agencies in relation to the closure of Beacon Hill High School and the CSO was instructed to act in respect of those applications when proceedings were commenced in the Tribunal.

40 In my view, it was reasonable for the CSO to interpret the Committee’s FOI application as not including the CSO’s files where it was instructed in relation to FOI proceedings initiated by the Committee. I agree with the Department’s submission that the focus of those files is the FOI proceedings rather than any advice the CSO may have given in relation to Beacon Hill High School. I note that if the Committee were now to lodge a further FOI application in respect of the CSO’s files for FOI proceedings involving the Committee, this would be likely to generate further claims for exemption pursuant to Schedule 1 of the FOI Act.

41 Thus, I am not satisfied that the CSO’s omission from the Schedule of documents relating to FOI proceedings initiated by the Committee, is evidence supporting the Committee’s claim that the CSO failed to conduct a sufficient search in response to the Committee’s FOI application.

Conclusion

42 The Tribunal’s function pursuant to s 53 of the FOI Act is to review the determination made by the CSO refusing the Committee access to certain documents. Since the internal review conducted by the Director General of the Attorney General’s Department was made on 21 October 2005, confirming the original determination dated 19 September 2005, the CSO, in response to submissions by the Committee, has released either the whole or part of many of the documents to which access was at first denied. In relation to the remaining 22 documents to which access is denied in whole or in part, I am satisfied that the CSO has established that the exemptions claimed apply.

Decision

43 The decision under review is affirmed.