Robinson v Transport for NSW; Robinson v Roads and Maritime Services

In the case of Robinson v Transport for NSW and Robinson v Roads and Maritime Services, the applicants sought access to certain documents under the Government Information (Public Access) Act 2009 (GIPA). The disputes involved two agencies, Transport for NSW and Roads and Maritime Services (RMS), both of which had refused to provide access to specific information citing various exemptions and protections, including Cabinet information and legal professional privilege. The applications were brought to the Civil and Administrative Tribunal of New South Wales (NCAT), which exercised its review powers under GIPA to assess the merits of the refusals.

The primary legal issues before the Tribunal were whether the inadvertent disclosure of certain information to the applicants constituted a decision to grant access to that information, and whether certain documents were protected by claims of Cabinet information or legal professional privilege. The Tribunal also needed to determine if the inadvertent disclosure affected the conduct of the review and whether the inadvertent disclosure waived any legal professional privilege. Additionally, the Tribunal had to consider whether the Tribunal could decide to provide access to part of a document containing Cabinet information but not to the remainder of the document.

The Tribunal concluded that the inadvertent disclosure did not constitute a decision to grant access to the information in question. Regarding the Cabinet information claim, the Tribunal found that certain documents prepared for the purpose of submission to Cabinet contained information concerning Cabinet deliberations or decisions and the position of a particular Minister on a matter in Cabinet. However, the Tribunal decided it could provide access to part of a document containing Cabinet information while redacting other parts. In terms of legal professional privilege, the Tribunal found that the inadvertent disclosure did not waive the privilege because the documents were not prepared for the dominant purpose of providing legal advice to a client. The Tribunal also found that RMS was not the client of the in-house solicitor providing advice, as the legal staff in RMS were employed by the Government of NSW.

The Tribunal affirmed the decisions of both Transport for NSW and RMS to refuse access to certain information, while setting aside the decisions to refuse access to other information. The Tribunal ordered Transport for NSW to provide access to the redacted information in specific documents within 30 days. Similarly, it ordered RMS to provide access to certain documents and information within the same timeframe, while affirming the refusals to provide access to other documents.