Saggers v Director General, Department of Premier & Cabinet Ministerial & Parliamentary Services
[2008] NSWADT 164
•10 June 2008
CITATION: Saggers v Director General, Department of Premier & Cabinet Ministerial & Parliamentary Services [2008] NSWADT 164 DIVISION: General Division PARTIES: APPLICANT
Colin Arthur SaggersRESPONDENT
Director General, Department of Premier & Cabinet Ministerial & Parliamentary ServicesFILE NUMBER: 073199 HEARING DATES: 15 November 2007, 25 January 2008 SUBMISSIONS CLOSED: 1 February 2008
DATE OF DECISION:
10 June 2008BEFORE: Pearson L - Judicial Member CATCHWORDS: Access to documents - legal professional privilege MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: Cianfrano v Director General, Attorney General's Department [2005] NSWADT 303
Cianfrano v Director General Attorney General's Department [2007] NSWADT 8
Cianfrano v Director General, NSW Department of Commerce (No 2) [2007] NSWADT 233
Cianfrano v Director General, Department of Commerce [2008] NSWADTAP 1
Cianfrano v Director General, Premier’s Department [2007] NSWADT 216
Cianfrano v Department of Premier and Cabinet [2008] NSWADT 141
Coco v The Queen (1994) 179 CLR 427
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49
General Manager, WorkCover Authority of NSW v Law Society of NSW [206] NSWCA 84
Howell v Macquarie University [2008] NSWCA 26
Saggers v Director General Attorney General's Department [2005] NSWADT 193
Secretary to the Department of Justice v Osland [2007] VSCA 96
Trade Practices Commission v Sterling (1979) 36 FLR 244
University of New South Wales v McGuirk [2006] NSWSC 1362
University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8
University of New South Wales v McGuirk [2008] NSWSC 369
Vance v McCormack (2004) 154 ACTR 12
Waterford v Commonwealth of Australia (1987) 163 CLR 54REPRESENTATION: APPLICANT
RESPONDENT
R Cianfrano, agent
M Dalla-Pozza, solicitorORDERS: The decision under review is affirmed.
REASONS FOR DECISION
1 On 16 March 2007 the applicant applied for access under the Freedom of Information Act 1989 (the FOI Act) to the following document:
2 On 16 March 2007 the respondent determined that the document was exempt under clause 10 of Schedule 1 to the FOI Act, and refused access. The applicant requested internal review, and the decision to refuse access was affirmed on 3 May 2007. On 16 May 2007 the applicant requested the respondent to exercise the discretion conferred by section 25 of the FOI Act and provide access. That request was refused and the applicant was notified in writing on 8 June 2007. On 27 June 2007 the applicant applied to the Tribunal for review.
The letter of instruction from the Premier's Department to the [Crown Solicitor's Office] to act on behalf of the Premier's Department in the sale of business assets of the Sydney Markets Authority to Sydney Markets Limited during the year 1997.
3 Planning meetings were held, during which the applicant clarified that his request related only to the letter addressed to the Crown Solicitor's Office, and not to any of the accompanying background documents. The respondent provided a copy of the documents to the Tribunal on a confidential basis. Both parties filed written submissions, and a hearing was held on 15 November 2007. In written submissions provided after the hearing, the applicant sought to rely on two additional documents (referred to in these reasons as Documents 1 and 2), which he requested the Tribunal not to disclose to the respondent. A further hearing was held on 25 January 2008, and the substance of Documents 1 and 2 was disclosed to the respondent's representative. The respondent filed further written submissions on 1 February 2008.
Relevant legislation
4 Under section 16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency’s documents. This right is subject to other provisions of the FOI Act, in particular section 25(1)(a), under which an agency can refuse access to a document if it is an exempt document. Section 25(1) is qualified by section 25(4) of the FOI Act, which provides:
5 Section 25(1) confers a discretion, and an agency may decide to provide access to a document notwithstanding that the document is an exempt document. In University of New South Wales v McGuirk [2006] NSWSC 1362 Nicholas J held that section 63 of the ADT Act provides the Tribunal with the discretion to order access to a document, which is an exempt document if it decides, that to do so is the correct and preferable decision with regard to the material then before it.
(4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):
(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and
(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.
6 Under section 61 of the FOI Act, the respondent bears the onus of establishing that its determination of the applicant’s request was justified.
7 Clause 10 of Schedule 1 provides:
Respondent's case
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 buy virtue of this clause merely because it contains matter that appears in an agency's policy document.
8 The respondent submitted that the relationship between the Crown Solicitor's Office ("CSO") and the Premier's Department concerning the sale of the markets site was one of solicitor and client, and the document in issue, together with a letter sent in reply accepting the instructions (tendered as Exhibit 1), were the retainer. A letter in which an agency requests a legal professional to provide legal advice and assistance is a document which is legally professionally privileged, being a confidential communication between lawyer and client for the dominant purpose of giving or obtaining legal advice or the provision of legal services: General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84. The respondent relied on Waterford v Commonwealth of Australia (1987) 163 CLR 54 and Cianfrano v Director-General, Attorney General's Department [2005] NSWADT 303 in support of the argument that legal professional privilege extends to solicitors employed by government agencies, and that the CSO has the requisite degree of professional independence from the agencies on behalf of which it acts for the privilege to apply. In further written submissions the respondent also relied on Vance v McCormack (2004) 154 ACTR 12. The respondent submitted that it would not be possible to delete exempt matter under section 25(4) of the FOI Act, as it is apparent from the terms of the application that the information sought by the applicant is the very information which is exempt, and further that release of only portions of the document would not be practicable as the entire document is aimed at seeking legal advice. The respondent submitted that to the extent that the Tribunal may have a residual direction to grant access to an exempt document, it should not be exercised in this matter; and in the alternative, that to the extent that the Tribunal has such a discretion generally, it does not apply in the case of legal professional privilege.
9 In response to the applicant's reliance on Documents 1 and 2, the respondent submitted that the documents had little evidentiary bearing on the issues before the Tribunal. If the documents concern work done for an agency other than the respondent in this matter, they do not assist in establishing whether the relationship in this matter meets the requirements for the privilege to apply. If document 1 relates to the matter the subject of the present application, it supports the respondent's argument that a solicitor client relationship existed as it concerns the fees that would otherwise be charged. Document 2 confirms that a certain matter was core, which has no relevance to whether there was a solicitor client relationship.
Applicant's case
10 The applicant submitted that there is a distinction between Crown Law Officers and private legal practitioners, and that there is no true separation between a government agency and a Crown Law Officer when that officer is assisting the agency with matters classified as fundamental to the responsibility of government. The applicant relied on Memorandum Number 95-39 issued by the Premier on 12 October 1995 directing agencies to refer to Crown Law officers matters which have implications for Government beyond an individual Minister's portfolio; involve the constitutional powers and privileges of the State and/or the Commonwealth; raise issues which are fundamental to the responsibilities of Government; or arise from, or relate to matters falling within the Attorney General's areas of responsibility. When the CSO carries out such core legal work the client agency is not charged and the work is funded from general government revenue administered by the Attorney General's Department. The applicant argues that when the CSO is engaged in carrying out core legal work, legal professional privilege does not apply. The applicant submitted that the document in issue is not one to which legal professional privilege would apply in any event, as the act of seeking to engage a solicitor is not an act of giving or receiving legal advice. The applicant relied on a recommendation by the NSW Ombudsman that agencies should be transparent in the way they perform their functions, and should release legal advice where that promotes accountability. The applicant submitted that the conferral of power on the Tribunal to review FOI determinations, and in particular the conferral of inquisitorial power, mean that the Tribunal does have a discretion to order the release of a document and that in the exercise of that discretion, it should be released in full.
Consideration
11 This is one of a number of cases brought to the Tribunal in which the applicant, or his associate, Mr Cianfrano (who represented the applicant as agent at certain stages), has sought access to documents of several New South Wales government agencies relating to the lease and sale of the Flemington markets site to Sydney Markets Limited. The issue of legal professional privilege and the clause 10 exemption has been considered in some of those cases. It is apparent from the applicant's reliance on Documents 1 and 2 that he has had some success in obtaining access to documents concerning the involvement of the CSO in the sale and associated transactions. Some of the cases previously determined by the Tribunal have required consideration of that part of common law legal professional privilege concerning communications between a lawyer and client or third party for the dominant purpose of providing legal services in connection with pending or anticipated legal proceedings (litigation privilege). This matter concerns the other aspect of common law legal professional privilege, namely communications between a client and lawyer for the dominant purpose of seeking and receiving legal advice (advice privilege).
12 The general principles of legal professional privilege are clear, and were summarised by Gleeson CJ, Gaudron, Gummow and Hayne JJ in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, (2002) 213 CLR 543 at [9]:
13 The task of the Tribunal in reviewing an agency’s determination that a document is exempt under clause 10 is to make up its own mind, on the basis of the information available, whether the matter contained in the document has the characteristics that would make it privileged from production in legal proceedings on the ground of legal professional privilege: Howell v Macquarie University [2008] NSWCA 26.
It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client 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.
14 The first issue for determination is whether the relationship between the CSO and the respondent in this instance was such as to give rise to the privilege. That is a question of fact: Waterford v Commonwealth of Australia (1987) 163 CLR 54 at 61. The High Court in Waterford confirmed that the privilege can apply to communications between government agencies and their salaried legal officers. Officers employed in the CSO are not officers of the agency for whom they act, and fall within the responsibility of the Attorney-General. As explained by Brennan J in Waterford:
15 The question is whether the relationship in this particular case is, as put by Mason and Wilson JJ in Waterford , 'a professional relationship which secures to the advice an independent character notwithstanding the employment'. In previous matters in which this issue has been raised the respondent agency has provided evidence from one or more of its officers as to the context: see, for example, Cianfrano v Director General, Attorney General's Department [2005] NSWADT 303; Cianfrano v Director General Attorney General's Department [2007] NSWADT 8; Cianfrano v Director General, Premier's Department [2007] NSWADT 216. In this matter the respondent has chosen not to provide evidence from any of its officers. The respondent submits that the findings in Cianfrano v Director General, Attorney General's Department [2005] NSWADT 303 apply to the present situation, and that the terms of the document the subject of the present application clearly show a solicitor client relationship. The respondent argued that the document in issue and the letter in reply (Exhibit 1) together constitute the retainer to the CSO to act on behalf of the Premier's Department. The applicant's submissions in response asserted that in relation to 'core' legal work carried out by the CSO there cannot be the required independence.
The Commonwealth, State and Territorial statutes under which officers are employed in the offices of Crown Solicitors, the Australian Government Solicitor and in the Departments of the respective Attorneys-General give them a certain security of tenure and those statutes would be construed, in the absence of contrary express provisions, as leaving these officers completely professionally independent.
16 I am satisfied that in providing legal advice and assistance in the process of lease and sale of the markets site the CSO had the requisite degree of professional independence from the respondent. This finding is based on the acceptance as a general proposition of the nature of the legal practice conducted by Crown legal officers and their relationship with instructing government departments in Waterford, and the findings in Cianfrano v Attorney General's Department [2005] NSWADT 303, Saggers v Director General Attorney General's Department [2005] NSWADT 193, and Cianfrano v Director General, Premier's Department [2007] NSWADT 216. Those were all decisions concerning the same transaction as that in issue in these proceedings, namely the lease and sale of the markets site, and in the latter case, involved the same respondent department.
17 The next issue to consider is whether the document itself falls within the general ambit of legal professional privilege. That requires consideration of the dominant purpose for which it was created, which is a question of fact. The possibility that 'matters of policy' may be intermingled with legal advice in a government context is recognised, and accommodated, by the requirement that it is the dominant purpose for the preparation of the document that is relevant, and extraneous mater can be disregarded: General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 at [73]. Findings made in previous Tribunal decisions concerning specific documents held by other agencies are not determinative. Documents created in the context of other dealings between the CSO and government agencies also do not necessarily shed any light on a document created in another context. I agree with the submissions of Mr Dalla-Pozza that Documents 1 and 2 are not relevant in this regard.
18 The Court of Appeal has confirmed that an examination of the relevant document can in some circumstances be sufficient to establish the dominant purpose for which it came into existence: Howell v Macquarie University [2008] NSWCA 26. The examples given by Campbell JA (with whom Spigelman CJ and Bell JA agreed) were “… a brief to counsel to advise, or a memorandum of advice from counsel, that deals with no topic other than the giving of advice”: [2008] NSWCA 26 at [72]. I have examined the document in issue and agree with Mr Dalla-Pozza that it specifies the legal assistance, which the agency is requesting the CSO to provide. While the applicant has not pressed for access to the documents that accompanied the letter, their content is relevant in establishing the purpose for which the document was created, and in particular, in considering whether there are extraneous circumstances which mean that the document was created for a dominant purpose other than one that would make it privileged. Considering the document in issue, the documents which accompanied it, and Exhibit 1, I am satisfied that the document in issue is a request for legal assistance, and falls within category (a) of Lockhart J's list of documents affected by legal professional privilege in Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-6, namely:
19 There is no indication from the document in issue, or the accompanying background documentation, that would indicate that it was produced with a dominant purpose other than one, which would make it privileged. While the applicant's submission included a claim that the respondent has tried to deceive the Tribunal as to the true nature of the FOI request and the innocent nature of the document, no claim was made that the document may have been created to further some improper purpose so that the privilege would not apply.
(a) Any communication between a party and his professional 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; …
20 The claim by the respondent that the document is exempt under clause 10 of Schedule 1 is made out. I agree with the respondent that deletion of exempt material under section 25(4) would not be possible or practicable, as the terms of the applicant's request indicate that he is seeking access to the very information that falls within the exemption.
Discretion
21 As noted above, the Supreme Court in University of New South Wales v McGuirk [2006] NSWSC 1362 held that the Tribunal has a discretion to order that access be given to a document found to be exempt. That case did not concern the clause 10 exemption. The respondent accepts that this decision is presently binding on the Tribunal, but argues that if there is a discretion it should not be exercised so as to release the document. The respondent submits that the document is not innocuous, and that in any event its content is not as important as the rationale for upholding the privilege. In the alternative, in oral submissions the respondent's representative referred to the decision in Cianfrano v Director General, NSW Department of Commerce (No 2) [2007] NSWADT 233 where Montgomery JM doubted whether the override discretion which arises by virtue of section 63 of the ADT Act read in conjunction with section 25(1)(a) of the FOI Act, extends to communications protected by legal professional privilege.
22 The question of whether the Tribunal can order release of a document found to be exempt under clause 10 has been the subject of some consideration in the Tribunal, both at first instance (see Cianfrano v Director General, Attorney General's Department (No 2) [2007] NSWADT 231, Cianfrano v Department of Premier and Cabinet [2008] NSWADT 141) and by the Appeal Panel. In University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8 the Appeal Panel concluded that it can, and directed that access be given to a document which fell within clause 10. An appeal has been lodged against that decision, and the matter is to be heard by the Court of Appeal: University of New South Wales v McGuirk [2008] NSWSC 369.
23 The strongest support for the proposition that the override discretion does not apply under the NSW FOI Act where the ground of exemption is clause 10 comes in the nature of legal professional privilege, as described in Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 by Gleeson CJ, Gaudron, Gummow and Hayne JJ (at 553):
24 In University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8 the University accepted that the Tribunal had the power to review a decision of the University not to exercise the discretion to give access to a document subject to legal professional privilege, and argued that the power should be rarely, if ever, exercised. That meant that the Appeal Panel was not required to consider the argument that section 25(1)(a) of the FOI Act does not evince a sufficiently clear intention to abrogate the privilege (applying the reasoning in Coco v The Queen (1994) 179 CLR 427; The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543).
Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.
25 The issue was considered by the Victorian Court of Appeal in Secretary to the Department of Justice v Osland [2007] VSCA 96, where the decision of the Victorian Civil and Administrative Tribunal that, in exercise of the public interest discretion conferred by section 50(4) of the Victorian legislation, a privileged document should be released was set aside. In the course of that decision Maxwell P noted at [84]:
26 The High Court has granted special leave to appeal, and its decision is currently reserved. I note that the discussion of the general principles in Osland arose in a different statutory context to that of the NSW FOI Act, as section 50(4) of the Victorian legislation expressly confers a power on the Victorian Civil and Administrative Tribunal to grant access to an exempt document where it is of the opinion "that the public interest requires that access … should be granted".
84 … As the High Court has stated, the doctrine of privilege is itself the product of a balancing exercise between competing public interests, whereby the public interest in the "perfect administration of justice" is accorded paramountcy over the public interest that requires the admission in evidence of all relevant documents. The public interest factors, which underpin the privilege, support all privileged documents uniformly. Those factors do not vary depending upon the particular content of a privileged document or upon whether the document has, or lacks, current relevance. As McHugh J said in Giannarelli v Wraith (No 2) [(1991) 171 CLR 592 at 601] said:
“[O]nce legal professional privilege attaches to a document ... that privilege attaches for all time and in all circumstances.”’
27 In this matter the argument has been raised by the respondent, in oral submissions, by reference to arguments put in previous matters before the Tribunal, and has not been the subject of detailed written submissions from either party. In Cianfrano v Director General, Attorney General's Department (No 2) [2007] NSWADT 231 the President, O'Connor DCJ, expressed some support for the argument that any residual discretion does not apply where the basis for the exemption is legal professional privilege. In Cianfrano v Department of Premier and Cabinet [2008] NSWADT 141 Montgomery JM was of a similar view. However, in those matters neither needed to express a concluded view. I share their concerns on this point. To the extent that the residual discretion arises by implication from section 25(1)(a) and section 63 of the ADT Act, rather than from express conferral of power under the statute, my view is that there is an insufficient intention to override the privilege. However I am in any event able to determine this matter without having to reach a firm conclusion on that point. Even if section 63 confers a discretion on the Tribunal to order the release of a document found to be an exempt document, and even if that discretion applies where the basis of exemption is that in clause 10 of the FOI Act, I would not exercise it in this matter.
28 The general principles relevant to consideration of whether to exercise the residual discretion were outlined by O’Connor DCJ in Cianfrano v Director General, Premier's department [2007] NSWADT 216 at [24] in the following terms:
29 Section 5 of the FOI Act sets out the objects of the Act and provides:
(1) The Tribunal must first ascertain whether the matter is exempt matter.
(2) The Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption.
(3) The question of whether there are strong grounds should take account of the objects of the FOI Act as expressed in section 5.
(4) Even in the case of matter that falls within one of the ‘restricted documents’ categories of exemption (see cll 1 (Cabinet documents), 2 (Executive Council documents) and 4 (Documents affecting Law Enforcement and Public Safety) of Schedule 1) the only absolute exemption arises where the Minister has granted a certificate pursuant to section 59.
(5) In the case of restricted documents, particular account should be taken of the concern addressed by section 5(2)(b), that is, whether or not a restriction of access is ‘reasonably necessary for the proper administration of government’.
30 In General Manager, WorkCover Authority (NSW) v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502, the Court of Appeal placed significant weight on the ‘general policy of disclosure’ enshrined in the FOI Act, and on the fact that section 5(3) requires that the Act be interpreted and applied so as to further its objects. McColl JA (with whom Handley and Hodgson JJA agreed) said at [151]:
(1) The objects of this Act are to extend, as far as possible, the rights of the public:
(2) The means by which it is intended that these objects are to be achieved are:
(a) to obtain access to information held by the Government, and
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.
(3) It is the intention of Parliament:
(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and
(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and
(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.
(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.’
(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and
(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.
31 In University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8 the Appeal Panel noted:
The Full Federal Court’s approach [in News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64], in my view, accords with the section 5(3) obligation to interpret and apply the FOI Act so as to further its objects, bearing in mind that while the Act gives a legally enforceable right to be given access to documents held by the Government, that right is subject to such restrictions as are reasonably necessary for the proper administration of the Government: section 5(2)(a) and (b). Determining whether documents should be disclosed involves balancing those two matters.
32 At [27] O'Connor DCJ noted some practical considerations which might influence the Tribunal to exercise the discretion:
33 As a matter of general principle, parliament has decided that the protection afforded by legal professional privilege is reasonably necessary for the proper administration of Government. However section 5(3)(b) of the FOI Act directs agencies to exercise the discretions conferred by that Act, including the discretion in section 25(1)(a) to release an exempt document, “... as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.” That means that if, in the particular circumstances of the case, it is not reasonably necessary for the proper administration of Government for the exemption to be relied upon, the preferable decision is that the document be released.
33 The Tribunal has in previous decisions Cianfrano v Director General, Premier’s Department [2007] NSWADT 216; Cianfrano v Department of Premier and Cabinet [2008] NSWADT 141) accepted that the decision to sell the markets was clearly of public importance. The sale, and thus the provision of legal assistance, took place some years ago. However, legal professional privilege is itself the expression of a fundamental public interest in encouraging agencies to comply with the law. On balance I am not satisfied that there are special, overriding or strong reasons sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of the Government. The decision to refuse access to the document should be affirmed.
whether the exempt matter was, by other means, in the public domain
whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant
the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity
the public interest in an informed debate on issues of significance to the community
whether there were adverse consequences for the proper administration of government, and their extent
whether any adverse consequence is remote or innocuous.
Orders
The decision under review is affirmed.
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