Scully v Sydney Metro

[2025] NSWCATAD 3

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Scully v Sydney Metro [2025] NSWCATAD 3

Hearing dates:

10 October 2024, 7 November 2024

Date of orders:

06 January 2025

Decision date:

06 January 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Deane, Senior Member

Decision:

(1)   The decision of the Respondent to refuse to provide access to information in full or in part in relation to the following documents is affirmed: 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 76, 77, 78, 79, 80, 81, 82, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 95, 96, 97, 98, 99, 100, 101, 102, 104, 105, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 130, 131, 132, 133, 135, 136, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203 and 204.

(2) The decision of the Respondent to refuse to provide access to information in response to an access application in relation to the following documents is set aside and remitted to the Respondent for reconsideration in accordance with the recommendations in relation to Category 3 documents in this decision and the provisions of the GIPA Act within 30 business days after the date of this decision: 37, 38, 39, 52, 83, 94, 106 and 137.

(3)   The decision of the Respondent to refuse to provide access to information in response to an access application in relation to the following documents is set aside and, in substitution, a decision that the Applicant be granted access to that information within 20 business days after the date of this decision is made, if it has not already been provided: 75, 103, 125, 126, 127, 128, 129 and 134.

(4)   The decision of the Respondent to impose a processing charge is affirmed.

(5) Under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the sound recording and the transcript of the closed hearings (from 10:58 to 11:51 am on 10 October 2024 and 10:20am to 12:11pm; 12:11 pm to 12:45pm and 1:43 - 1:48pm on 7 November 2024) of these proceedings, and the paragraphs in this decision marked “NOT FOR PUBLICATION” is prohibited.

(6) Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant or any other person apart from representatives of the Respondent, of the sound recording and the transcript of the closed hearings (from 10:58 to 11:51 am on 10 October 2024 and from 10:20am to 12:11pm; 12:11 pm to 12:45pm and 1:43 - 1:48pm on 7 November 2024) in these proceedings and the paragraphs in this decision marked “NOT FOR PUBLICATION” is prohibited.

(7) Under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of any of the confidential documents contained in the bundle of confidential documents lodged by the Respondent paginated 1 - 1084 is prohibited.

(8) Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant of any of the confidential documents contained in the bundle of confidential documents lodged by the Respondent paginated 1 - 1084 is prohibited, apart from those listed in order 2 (after reconsideration by the Respondent) and order 3, unless otherwise released administratively by the Respondent.

Catchwords:

ADMINISTRATIVE LAW – Government information - legal professional privilege

ADMINISTRATIVE LAW – Government information – processing charges

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Evidence Act 1995 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group pic (No 2) [2013] FCA 1098

AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) (2006) 155 FCR 30

Cargill Aust Ltd v Viterra Malt Pty Ltd (No 8) [2018] VSC 193

Commissioner of Taxation v PricewaterhouseCoopers [2022] 114 ATR 335

Commissioner, Australian Federal Police v Propend Finance (1997) 188 CLR 501

Daniels Corp International Pty Limited v Australian Competition and Consumer Commissioner (2002) 213 CLR 543

Grant v Downs (1976) 135 CLR 674

Jackson v University of New South Wales [2019] NSWCATAD 224

Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853

Moore v Southern NSW Local Health District [2024] NSWCATAD 72

Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357

Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445

Turner v Bayer Australia Ltd (privilege ruling) (2023) 70 VR 290

Waterford v Commonwealth (1987) 163 CLR 54

Wollondilly Shire Council v Styles [2024] NSWCATAP 104

Yee v Medical Council of NSW [2017] NSWCATAD 370

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Gordon Fraser Scully (Applicant)
Sydney Metro (Respondent)

Representation:

Applicant (Self-Represented)
Sparke Helmore (Respondent)

File Number(s):

2024/00204549

Publication restriction:

(1) Under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the sound recording and the transcript of the closed hearings (from 10:58 to 11:51 am on 10 October 2024 and 10:20am to 12:11pm; 12:11 pm to 12:45pm and 1:43 - 1:48pm on 7 November 2024) of these proceedings, and the paragraphs in this decision marked “NOT FOR PUBLICATION” is prohibited.

(2) Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant or any other person apart from representatives of the Respondent, of the sound recording and the transcript of the closed hearings (from 10:58 to 11:51 am on 10 October 2024 and from 10:20am to 12:11pm; 12:11 pm to 12:45pm and 1:43 - 1:48pm on 7 November 2024) in these proceedings and the paragraphs in this decision marked “NOT FOR PUBLICATION” is prohibited.

(3) Under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of any of the confidential documents contained in the bundle of confidential documents lodged by the Respondent paginated 1 - 1084 is prohibited.

(4) Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant of any of the confidential documents contained in the bundle of confidential documents lodged by the Respondent paginated 1 - 1084 is prohibited, apart from those listed in order 2 (after reconsideration by the Respondent) and order 3 unless otherwise released administratively by the Respondent.

REASONS FOR DECISION

1. This is an application for an administrative review of a decision of Sydney Metro (the Respondent) concerning an application for access to information made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

2. On 24 April 2024 the Respondent refused access to the information on the basis that there was an overriding public interest against disclosure.

3. For the reasons that follow, I have decided to affirm the decision of the Respondent in relation to certain documents to which legal professional privilege applies (Category 1 and 2 documents), to set aside and remit the decision to the Respondent for reconsideration in relation to other documents which may be subject to other public interest considerations under the GIPA Act (Category 3 documents) and to set aside and substitute a decision that that the Applicant be granted access to the information contained in other documents over which privilege has not been maintained or which are attached to those documents (Category 4 and 5 documents).

4. I have also decided to affirm the Respondent’s decision to impose a processing charge.

Background

The access application

5. On 18 January 2024, Mr Scully (the Applicant) lodged an access application with the Respondent. Following correspondence between the Applicant and the Respondent, on 5 March 2024 the Applicant’s initial access application was reduced in scope. As amended, the Applicant sought access to the following information:

1. Point 1: (date range 9 May 2023 to 18 January 2024) All information associated, including all emails, documents, minutes of meetings in Microsoft Teams correspondence including teams chats in relation to the following official complaints. 1: * official complaint under TfNSW Code of Conduct - submitted to Executive Director People and Culture Sydney Metro on the 9th of May 2023 and 2: * official complaint under TfNSW Code of Conduct_#2 - submitted to Executive Director People and Culture Sydney Metro on the 5th of June 2023 (exclude information sent to myself and received from myself, and exclude duplicates)

2. Point 3: (date range 1^st August 2023 to 18 January 2024) all information associated including all emails, documents, minutes of meetings and Microsoft Teams correspondence including teams chats in relation to Gordon F Scully substantive permanent full-time role, Senior Manager Health and Safety … this request extends to all information documented and issued or communicated to all internal TfNSW personnel and external parties outside of Sydney Metro that would impact or have any change or adverse changes to my current contract of employment but not limited to information exchanged between QBE insurer, iCARE, SIRA, TfNSW/Sydney Metro Personnel both internal and external, health practitioners or medical experts and legal practitioners and other state authority departments.

6. Point 2 was withdrawn on 5 March 2024.

Respondent’s Decision on Access

7. The access application was determined by the Respondent on 24 April 2024.

8. The decision outlined the searches which had been made.

9. No information was located within the scope of Point 3 of the access application.

10. Information was identified as falling within the scope of Point 1 of the access application.

11. The Respondent’s Delegate (the Delegate) decided:

1. to provide access in part to the information regarding point 1 under s 58(1)(a);

2. to refuse to provide access in part to the information regarding Point 1 under s 58(1)(d); and

3. that the information regarding Point 3 was not held under s 58(1)(b) (this part was not disputed by the Applicant).

12. Of the information regarding Point 1, the Delegate found that (apart from the deletion of certain information considered not to fall within the scope of the request under s 74):

1. Items 1 – 36 (pages 1 – 121) were to be released in full;

2. Items 37 – 39 (pages 122 – 142) could be partially released and

3. Items 40 – 206 were refused in full.

13. The decision not to provide access in full to all of the information regarding Point 1 was based on parts of the information being subject to legal professional privilege for which there was a conclusive presumption of an overriding public interest against disclosure under s 14(1) and Clause 5 of Schedule 1 to the GIPA Act.

14. The Delegate also listed processing charges which could be imposed. The Delegate noted that the Applicant had paid $375 on 27 March 2024 as an advance deposit payment. He was requested to pay the remaining balance of $375 prior to the information being released.

Application to the Tribunal for administrative review

15. On 31 May 2024, the Applicant lodged with the Tribunal an application for administrative review of the Respondent’s decision on access. The Applicant’s grounds for the application were

The information I am requesting forms part of an ongoing complaint against the respondent. The information I have requested is not sensitive nor can it be deemed as “Conclusive presumption of an overriding public interest against disclosure” nor can it be deemed as Legal Professional Privilege. The decision to release all information will provide clarity. I am seeking to get closure on the abhorrent mistreatment I have endured by employer Sydney Metro ongoing consisting of bullying, harassing, discriminatory conduct. My Complaint with the Anti-discrimination board has also been referred to NCAT.

Tribunal proceedings

16. The parties appeared before the Tribunal on 10 October 2024. The Applicant and Respondent provided oral and written submissions. The Respondent also provided submissions at a Confidential hearing on that day.

17. In the course of submissions, the Applicant sought to amend his application to include an application for review of a reviewable decision regarding the decision to impose a processing charge (s 80(k) GIPA Act)

18. According to documents provided by the Applicant, he paid $375 to the Respondent on 27 March 2024 as a deposit. He paid the remaining $375 after the first directions hearing on 2 July 2024. Following the payment of that fee, the Applicant received the documents for which access had been granted. At that point, the Applicant realised that the documents he had been provided with were duplicates or otherwise outside the scope of his request.

19. Order 5 of the Tribunal’s orders made on 29 July 2024 noted that the Applicant had confirmed to the Tribunal and the Respondent that he did not seek a review of the decision that information was not held by the Respondent. The Respondent submitted that the Applicant should have noted at that stage if he wished to seek review of the decision to impose a fee.

20. The Applicant recalled that he had noted that the documents provided did not fall within his access application. Further, in his affidavit of 18 September 2024 at [14] the Applicant noted that the money paid to the Respondent had been taken contrary to the GIPA Act.

21. At the time of lodging the application for review, the Applicant was unaware that the documents that he would receive would appear to be outside the scope of his request and he was not in a position to include an application for review of the fees in the initial application. Weighing the parties’ submissions, I considered that it was necessary in the interests of justice and under the Tribunal’s guiding principle in section 36 of the Civil and Administrative Tribunal Act (2013) (the NCAT Act) to amend the application under section 53 of the NCAT Act to include an application for review of the decision to impose a processing charge.

22. I further considered that this was in the interests of justice because this matter was to be adjourned part heard in order for the Respondent to provide a schedule of documents and further information, during which time the Respondent would have the opportunity also to consider submissions regarding the imposition of fees. The Applicant would also be given further time to reply and the application for review of the decision to refuse to provide access to information and the decision to impose a processing charge could be heard together at the rescheduled hearing.

23. On 10 October 2024 I made the following relevant orders:

3 Under section 53 of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal amends the application lodged on 31 May 2024 to include an application for review of a decision to impose a processing charge (s 80(j) Government Information (Public Access) Act 2009 (NSW)).

4. By 24 October 2024, the Respondent must provide a schedule to the Tribunal and the Applicant in relation to the documents to which the Respondent considers access should be refused. The schedule must list each document over which legal professional privilege is claimed and include information for each document under the following column headings: document number; author; recipient; date; subject; dominant purpose for creation of document; other access considerations (such as public interest); document provided under Standing Order 52 (yes or no); and whether document is an attachment to another document.

5. By 24 October 2024 the Respondent must provide to the Tribunal and the Applicant submissions and any evidence regarding reasons to justify the decision to impose a processing charge or to require an advance deposit in relation to the Applicant’s access request.

6. By 31 October 2024 the Applicant must provide to the Tribunal and the Respondent any response and any evidence to the schedule produced by the respondent under order 4.

7. By 31 October 2024 the Applicant must provide to the Tribunal and the Respondent any response and any evidence regarding the submissions made by the Respondent in relation to the imposition of a processing charge under order 5.

24. The matter was relisted for 7 November 2024. The parties appeared and made further submissions both in relation to access and the imposition of a fee.

Jurisdiction and powers

25. An application for administrative review of “an administratively reviewable decision” may only be made by an interested person (s 55 ADR Act). An administratively reviewable decision is “a decision of an administrator over which the Tribunal has administrative review jurisdiction” (s 7 ADR Act). The Tribunal has administrative review jurisdiction over a decision of an administrator “if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision” (s 9 ADR Act). An “administrator” is the person or body that makes the decision under enabling legislation (s 8 ADR Act).

26. Both the Respondent’s decisions to refuse to provide access to information in response to an access application and to impose a processing charge are reviewable decisions (s 80(d) and (j) GIPA Act). Section 100(1) of the GIPA Act gives a person aggrieved by a reviewable decision a right to apply to NCAT for an administrative review of that decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

27. Accordingly, the Tribunal has jurisdiction to hear and determine this application.

28. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide (s 63(3) ADR Act):

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Issues for determination

29. There are two decisions before the Tribunal for review:

1. the decision to provide access or to refuse to provide access to information in response to an access application (the access decision; s 80((d)) and

2. the decision to impose a processing charge (the charges decision; s 80(j)).

30. Under s 105 GIPA Act, the burden of establishing that each decision is justified lies with the agency. None of the exceptions to that onus apply in this matter.

31. Therefore, the issues for the Tribunal to determine are:

1. Has the Respondent established that the access decision is justified?

2. What is the correct and preferable decision in all the circumstances in relation to the access decision?

3. Has the Respondent established that the charges decision is justified?

4. What is the correct and preferable decision in all the circumstances in relation to the charges decision?

The access decision

32. Section 58(1) of the GIPA Act sets out how access applications for government information are decided, including by deciding to provide access to the information (s 58(1)(a)), deciding that the information is not held by the agency (s 58(1)(b)) or deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information (s 58(1)(d)).

Presumption in favour of the disclosure of government information

33. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5(1) GIPA Act). A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information (s 9(1) GIPA Act).

33. There is a general public interest in favour of the disclosure of government information (s 12(1) GIPA Act). Nothing in the GIPA Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information (s 12(2) GIPA Act).

Public interest test

35. There is an overriding public interest against disclosure of government information for the purposes of the GIPA Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13 GIPA Act).

36. There is conclusively presumed to be an overriding public interest against the disclosure of the types of government information set out in Schedule 1 to the GIPA Act (s 14(1) GIPA Act). The effect of a conclusive presumption of an overriding public interest against disclosure is that the Tribunal is not required to perform the public interest test of balancing considerations under s 13 of the GIPA Act: see Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41] (Yee).

Legal professional privilege

37. Clause 5 of Sch 1 to the GIPA Act provides:

5   Legal professional privilege

(1)  It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2)  If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3)  A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

38. In Daniels Corp International Pty Limited v Australian Competition and Consumer Commissioner (2002) 213 CLR 543, at [9], Gleeson CJ, Gaudron, Gummow and Hayne JJ said:

9   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. …

39. The Evidence Act 1995 (NSW) (the Evidence Act) provides for two categories of legal professional privilege: legal advice privilege (s 118) and litigation privilege (s 119). Section 118 of the Evidence Act provides that legal advice privilege will apply where:

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—

(a)  a confidential communication made between the client and a lawyer, or

(b)  a confidential communication made between 2 or more lawyers acting for the client, or

(c)  the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

40. Section 117 of the Evidence Act defines ‘client’ to include a person or body who engages a lawyer to provide legal services or who employs a lawyer; an employee or agent of a client or an employer of a lawyer if the employer is the Commonwealth or a State or Territory, or a body established by a law of the Commonwealth or a State or Territory.

41. ‘Confidential communication’ means a communication made in such circumstances where the person who made it, or the person to whom it was made, was under an express or implied obligation not to disclose its contents. ‘Confidential document’ means a document prepared under the same circumstances.

42. ‘Dominant purpose’ is not defined in the Evidence Act. However, it has been held to mean the ‘ruling, prevailing, or most influential purpose’ that predominates over other purposes and not the ‘primary purpose’ or ‘substantial purpose’ of the client or the lawyer: Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group pic (No 2) [2013] FCA 1098 at [11].

43. The important question to be asked is “what was the intended use (or uses) of the document which accounted for it being brought into existence”: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at [366]. This is to be determined as a question of fact: Waterford v Commonwealth (1987) 163 CLR 54 at [14] (Waterford).

44. As set out by Moshinsky J in Commissioner of Taxation v PricewaterhouseCoopers [2022] 114 ATR 335 (PwC):

Dominant purpose

143.   In order for privilege to arise, it is not sufficient that giving or obtaining legal advice or providing legal services was in part the purpose; it must be the dominant purpose of the relevant communication. In Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 (Pratt Holdings (on remitter)), on remitter from the Full Court (discussed below), Kenny J said (at [30]):

(7) The dominant purpose is not the same as the “primary” or the “substantial” purpose: see Grant v Downs at CLR 678; ALR 580–1 per Barwick CJ. The “dominant” purpose may be described as the ruling, prevailing, paramount or most influential purpose: see Mitsubishi Electric at [10], citing Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 at 416; [1996] HCA 34; 141 ALR 92 at 97–8 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ. The “dominant purpose” brings within the scope of the privilege a document brought into existence for the purpose of a client being provided with professional legal services notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time ...

144.   Justice Kenny also stated at [30]:

(8) Where two purposes are of equal weight, neither is dominant in the relevant sense. Hence:

(a) a document is not privileged from production where one purpose for its creation is to obtain legal advice, but there is another equally important purpose; and

(b) if the decision to bring the document into existence would have been made irrespective of any intention to obtain legal advice, the purpose of obtaining legal advice cannot be the dominant purpose for the making of the document.

145.   Whether the dominant purpose of a communication is such as to render it privileged is to be determined as a matter of substance, including by reference to the “content, context and evidence as well as the form of the document”: Seven Network Ltd v News Ltd [2005] FCA 142 (Seven) at [6] per Tamberlin J; see also Pratt Holdings (on remitter) at [30] per Kenny J; Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 at [11] (Kenquist Nominees) per Thawley J.

146.   Whether a communication is for the dominant purpose of legal advice depends on the particular facts. The character of some documents may be sufficient to establish the purpose for which they were brought into existence. In other instances, particularly in a case where the documents themselves do not disclose the purpose for which they were created, it may be necessary to identify the circumstances in which the communication took place and the topics to which the instructions or advice were directed: Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 at [12]- [17], [41] per Black CJ and Emmett J, and at [144]-[145], [166]-[177] per Allsop J (as the Chief Justice then was); AWB (No 5) at [44(3)] per Young J; Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [41] per Graham J.

147.   The fact that a document is labelled as privileged or as being prepared for legal advice will not establish a privileged dominant purpose: Seven at [6] per Tamberlin J.

45. The Evidence Act also provides that privilege will be lost where:

122   Loss of client legal privilege: consent and related matters

(1)  This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3)  Without limiting subsection (2), a client or party is taken to have so acted if—

(a)  the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or

(b)  the substance of the evidence has been disclosed with the express or implied consent of the client or party.

46. While the statutory formulation of privilege is usually applied in matters such as this, as the Tribunal has previously observed, the Evidence Act is not a code and common law principles of privilege remain relevant, including when interpreting the meaning and operation of words and terms not defined in the Evidence Act: see Jackson v University of New South Wales [2019] NSWCATAD 224 (at [96]) (Jackson). It was noted in that case (at [97]) that the Tribunal had regularly found, in applying the provisions of the Evidence Act, that its conclusions in regard to the issue of privilege would have been the same no matter which law applied. Like the Tribunal in Jackson, I am of the same view in this application.

47. While the Evidence Act uses the term ‘client legal privilege’, it is understood to be interchangeable with the term ‘legal professional privilege’: Moore v Southern NSW Local Health District [2024] NSWCATAD 72 at [49].

48. Nevertheless, the emphasis on client legal privilege highlights the fact that it is the client who is entitled to the benefit of the protection of the disclosure of a ‘confidential communication’ arising from the lawyer/client relationship. As a result, the onus is on the client to establish that client legal privilege attaches to the communication in issue: Grant v Downs (1976) 135 CLR 674 at 689. It is also the client who may waive that entitlement: Evidence Act, s 122.

49. Moshinsky J in PwC summarised the relevant principles for the application of legal professional privilege to email chains (at [175]):

Email chains

175. The application of the principles of legal professional privilege in the context of email chains was discussed by Thawley J in Kenquist Nominees at [19]. Relevantly for present purposes, I consider that the principles apply to email chains in the following way (referring to the latest email in time as the “latest email”):

(a) If the communication being the latest email was made for the dominant purpose of the giving or receiving of legal advice, then it may be that the email chain will be privileged because the earlier emails in the chain are to be regarded as copies of documents provided for the dominant purpose of the giving or receiving of legal advice.

(b) For example, if the dominant purpose of the communication being the latest email was the giving of legal advice by a lawyer, then it may be that the email chain will be privileged because the earlier emails in the chain are to be regarded as copies of documents furnished by the lawyer with the advice being the latest email: see Kenquist Nominees at [19(2)].

(c) By way of further example, if the dominant purpose of the communication being the latest email was the obtaining of legal advice from a lawyer, then the email chain may be privileged because the earlier emails are to be regarded as copies of communications provided to the lawyer for the dominant purpose of obtaining legal advice: see Kenquist Nominees at [19(3)].

(d) The same principles can apply to earlier emails in the chain. For example, it may be that the latest email in the chain is not privileged, but the penultimate email (in time) may be a communication made for the dominant purpose of the giving or receiving of legal advice, and the earlier emails are to be regarded as copy documents which have been provided for the same dominant purpose.

50. In respect to email attachments, in Commissioner, Australian Federal Police v Propend Finance (1997) 188 CLR 501, the High Court found that privilege attaches to a copy document which is provided by a client to a lawyer if the copy was made solely for the purpose of obtaining legal advice or solely for use in legal proceedings – however it does not attach to the original document. It follows that the same can be said for email attachments; Cargill Aust Ltd v Viterra Malt Pty Ltd (No 8) [2018] VSC 193 at [36] and [132] – [135]; Turner v Bayer Australia Ltd (privilege ruling) (2023) 70 VR 290 at [136].

51. However, If a client makes a copy of a non-privileged communication or document and sends it to a lawyer without a dominant purpose of obtaining legal advice (or for confidential use in litigation), the copy would not be privileged; Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 at [14].

52. In AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) (2006) 155 FCR 30 (AWB (No 5)) (at p 44), Young J summarised the general principles in relation to the determination of a legal professional privilege claim. The following are particularly relevant to this matter (references omitted):

…

(2) The purpose for which a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intention of the document’s maker, or of the person who authorised or procured it, is not necessarily conclusive. It may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication: see AWB v Cole at [110].

(3) The existence of legal professional privilege is not established merely by the use of verbal formula: Grant v Downs at 689 per Stephen, Mason and Murphy JJ. Nor is a claim of privilege established by mere assertion that privilege applies to particular communications or that communications are undertaken for the purpose of obtaining or giving ‘legal advice’: … If assertions of that kind are received in evidence in support of the privilege claim, their conclusionary nature can leave unclear what advice was really being sought. There will be cases in which a claim of privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed…

(4) Where communications take place between a client and his or her independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications... In [Kennedy v Wallace (2004) 208 ALR 424 at 442 [65] per Gyles J], Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.

…

(7) The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character: …

(8) Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like, whether or not they are actually provided to the client….

(9) Subject to meeting the dominant purpose test, legal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client’s legal adviser to enable him or her to advise: Stirling at 246. The privilege extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or not they are themselves actually communicated to the lawyer….

…

(12) The Court has power to examine documents over which legal professional privilege is claimed. Where there is a disputed claim, the High Court has said that the court should not be hesitant to exercise such a power: Esso; see also Grant v Downs at 689. If the power is exercised, the court will need to recognise that it does not have the benefit of submissions or evidence that might place the document in its proper context. The essential purpose of such an inspection is to determine whether, on its face, the nature and content of the document supports the claim for legal professional privilege.

53. Client legal professional privilege equally applies to confidential communications between government agencies and their salaried legal officers, provided that there existed, at the time of the confidential communication, a relationship of lawyer and client and the requirements of ss 118 and 119 are otherwise satisfied. As noted by Mason and Wilson JJ Waterford:

4 … [Whether], in any particular case, a relationship is such to give rise to the privilege is a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment'.

The Respondent’s submissions and evidence

54. It is unnecessary to redact the following summary of the evidence to exclude submissions made in closed session, because it does not reveal the content of any of the documents which have not been released and it reflects information which has already been disclosed in the document table. Each document is considered in more detail in the determination against each individual document below, and it has been necessary to redact some of that discussion in the interests of maintaining legal professional privilege, where it has been found to apply.

55. The Respondent contended that the confidential documents filed on 16 July 2024 (the documents in dispute) include communications directly between an in-house legal officer employed by the Respondent and internal clients. The documents in dispute fell into two categories namely:

1. communications that were created by a legal officer, in her capacity as a solicitor, for the purposes of providing legal advice to employees of the Respondent, including advice in relation to anticipated proceedings; and

2. communications, including forwarded email chains, and attached documents that were provided by employees of the Respondent to the legal officer for the purposes enabling the legal officer to provide legal advice in her capacity as a solicitor.

56. The Respondent submitted that a lawyer-client relationship existed between the legal officer and the other employees of the Respondent. The Respondent further submitted that the documents in dispute over which legal professional privilege was claimed were confidential in nature as they were communicated between the legal officer and internal clients, and were not intended to be distributed beyond those recipients. Aside from providing legal advice and services, the legal officer was not involved in the matters in respect of which she was providing advice. Furthermore, the Respondent noted that the legal officer’s position within Sydney Metro was entirely separate from the teams in which the internal clients were employed. The Respondent submitted that the legal officer was therefore acting in an independent capacity.

56. The Respondent submitted that the communications were created for the dominant purpose of either providing legal advice, or enabling the legal officer to provide legal advice for services, including in relation to anticipated legal proceedings arising out of the matters in respect of which advice was being provided. The Respondent reiterated that, where documents and email chains had been forwarded or otherwise provided to the legal officer, the purpose for that was to enable the legal officer to consider the material and subsequently provide legal advice.

57. The Respondent confirmed that prior to the making of the original decision, the General Counsel at Sydney Metro considered the documents in dispute and decided not to waive privilege claimed in respect of the documents. At the time of the Respondent’s submissions, the Respondent’s General Counsel had maintained the position not to waive privilege.

58. Since filing the documents in dispute, the Respondent had further considered the applicability of the legal professional privilege over certain documents. At the hearing and as confirmed in writing, the Respondent advised that it was releasing documents 43 (pages 31 – 38), 44 (pages 49 – 57), 45 (pages 76 – 83) and 51 administratively and also not pressing its legal professional privilege claim over documents 75, 103, 125, 126, 127, 128 and 134.

59. The Respondent provided an affidavit from Amy Fox dated 26 August 2024 setting out her legal qualifications, confirming that she holds a current practising certificate and attesting that the documents to which the Applicant had been denied access were legal advice that she had prepared and provided to internal clients at Sydney Metro in relation to matters involving the Applicant. The documents in dispute also contained material that was received by her from internal clients for the purposes of providing legal advice, in relation to matters involving the Applicant. Some of those matters were ongoing and related to matters which were the subject of current proceedings involving the Applicant and Sydney Metro:

9.   The documents in dispute are subject to legal professional privilege. They are my legal advice, and communications with legal clients providing information as part of seeking and obtaining legal advice.

10.   The documents in dispute are confidential, their distribution has been, and continues to be, limited to those internal clients who need access on a need to know basis.

61. Generally, the Respondent submitted that the documents which had been withheld from the Applicant were protected under legal professional privilege. The documents consisted of emails and relevant attachments for which the dominant purpose was the Respondent’s in-house lawyers providing legal advice to the Respondent (as the employer of the lawyer) regarding the Applicant’s Code of Conduct complaints. Although many of the original documents which were attachments themselves would not attract legal professional privilege, on their own they did not fall within the scope of the access application. They only fell within the scope of the application as attachments to the requests for legal advice and resulting email chains and, as attachments to the privileged emails, they were also privileged. Privilege in those documents had not been waived.

The Applicant’s submissions and evidence

62. The Applicant provided an affidavit dated 16 September 2024. The Applicant submitted that the documents which were released by the Respondent were documents sent to or from him or duplicates which had specifically been excluded from his access request.

63. The Applicant submitted that the Respondent had been engaged in various parliamentary hearings regarding Sydney Metro governance where additional legal reviews had been conducted on Sydney Metro and a determination had been made against Sydney Metro refuting Sydney Metro’s stance for all documents requested by the parliamentary hearing as being classified as coming under legal professional privilege. Further, the Applicant submitted that the Respondent was in breach of its own Policy and Procedure Privacy Management Plan in declining to provide him with his personnel files.

64. The Applicant outlined his career history with Sydney Metro and details of the complaints he had made under the TfNSW Code of Conduct.

65. The Applicant provided the following relevant evidence;

1. the letter of acknowledgement from the Respondent dated 18 January 2024 regarding his access request;

2. a notice of decision dated 24 April 2024;

3. A letter from the Respondent dated 6 February 2024 regarding the volume of the request and requesting an amendment to the terms of the access application;

4. A copy of a decision on an access request to iCare, dated 5 March 2024 and associated correspondence;

5. Receipts for payment of processing charges paid to the Respondent:

6. Sydney Metro Privacy Management Plan which sets out:

Everyone has the right to access the personal and or health information Sydney Metro holds about them. They also have the right to change their own personal and or health information Sydney Metro holds, for example, updating their contact details. However, if Sydney Metro thinks in the circumstances that it is not appropriate to amend the information then you can request a statement about the requested changes be attached to the information.

Sydney Metro is required to provide you with access to the personal and or health information it holds about you and allow you to amend this information without expense or excessive delay. …

4.2 Employees

Employees can access their personnel files by either making a request to Transport Shared Services (TSS) or by contacting HR Advisory …

Files about disciplinary matters and grievances are confidential and access is generally provided only to the staff member to whom the file relates. Generally, staff may inspect files under supervision and will also be able to take photocopies of material on their file.

7. A copy of a report under Standing Order 52 on disputed claim of privilege - Sydney metro governance by the Hon Keith Mason KC AC dated 16 February 2024. In his report, Mr Mason finds that none of the documents in the four boxes forming part of the return was privileged under Personal Information and PII (Public Interest Immunity) as claimed by Sydney Metro;

8. A copy of the report of the NSW Legislative Council Privileges Committee Consideration of disputed claim of privilege as referred by the Clerk under Standing Order 54 (March 2024) which ordered certain documents not to be privileged as a result of Mr Mason’s report.

66. In oral submissions, the Applicant noted that his attempts to obtain information regarding a recruitment process from the Respondent since March 2023 had been thwarted and he had no option but to pursue an access application under the GIPA Act. He should have been able to access his personal information under the Respondent’s Privacy Management Plan. The Applicant reiterated his concerns that the Respondent was withholding access to documents and causing delay in order to frustrate his ongoing anti-discrimination matter.

Has the Respondent established that the access decision is justified?

67. The extent of legal professional privilege under the GIPA Act has recently been considered by the Appeal Panel in Wollondilly Shire Council v Styles [2024] NSWCATAP 104. At [51] – [52] the Appeal Panel held:

51. Based on s 117 and s 118 of the Evidence Act, the elements of a claim for legal professional privilege in this case are that there is a confidential communication between a client and a lawyer for the dominant purpose of the lawyer providing legal advice to the client.

As the High Court said in Grant v Downs (1976) 135 CLR 674 at 689 “... in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence”.

68. Young J’s application of the caselaw to the facts in AWB (No 5) is also relevant here (at p 49):

56. … I am satisfied that Blakes, Minters and ABL were engaged professionally to provide legal advice and assistance within the scope of their respective retainers as described above. In each relevant context, I consider that it would be inappropriate and artificial to attempt to sever the factual investigations carried out by the lawyers from the legal advice they provided under their retainers. As I have said, a key purpose of those factual investigations was to enable Blakes, Minters and ABL to determine whether there was any evidence that AWB, or any of its employees, had made payments to Iraq in breach of the sanctions or engaged in any other wrongdoing in connection with its sale of wheat to Iraq. By that means, the three law firms placed themselves in a position to advise AWB as to the risks it confronted and the course of action it should take in relation to the investigations.

57. I do not see any reason why professional communications between AWB and its lawyers concerning the investigations by the IIC, the PSI, and the Commission should be incapable of attracting legal advice privilege. In these contexts, the concept of legal advice includes advice as to what AWB should prudently and sensibly do in connection with the relevant investigation. Advice of this kind is capable of attracting legal advice privilege, notwithstanding that a particular communication is part of a continuum and does itself contain any specific advice on matters of law or any specific request for such advice.

69. Ultimately it is a question of fact as to whether a professional relationship exists between the client employer and the in-house lawyer and whether the in-house lawyer was consulted in his or her professional capacity: see Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445, at [35] to [41]. Where advice is requested or given outside this professional relationship the information is not privileged.

70. On the basis of her affidavit and the contents of emails and file notes written by her and to her, I accept that a client lawyer relationship exists between the Respondent and its legal officer, Amy Fox. I also accept that the communications between Ms Fox and other employees of the Respondent were made under an express or implied obligation not to disclose their contents. In some cases, as noted in the document table, the emails are expressly marked “OFFICIAL: Sensitive – Legal”, “OFFICIAL: Sensitive – Personal”, “Subject to LPP” or ‘Legal and Privileged’. Whilst I have taken such markings into account in the assessment regarding the confidentiality of the communications, mere markings do not determine whether the dominant purpose test has been satisfied. The mere fact that an email is marked ‘privileged’ does not necessarily mean that privilege attaches to the information in that email chain, or to its attachments.

71. In PwC at [205] Moshinsky J noted that whether or not the Documents in Dispute were privileged was to be determined by reference to whether, as to each particular document, it constitutes or records a communication made for the dominant purpose of giving or obtaining legal advice. That question is to be determined by reference to the content of the document, its context, and the relevant evidence relating to it. The question cannot be determined on a global basis.

72. However I have considered the contents of each document and, in the context of the scope of the Applicant’s access request, the principles applying to most are sufficiently similar for the documents to fall into distinct categories. Although the determination in relation to each of the documents in categories 1, 2, and 3 cannot be released, I have set out a broad explanation of the factors I have taken into account in relation to each category.

73. Category 1: Emails and email chains leading up to emails which were created for the dominant purpose of seeking or providing legal advice from the Respondent’s lawyers regarding the Applicant’s Code of Conduct complaint and providing that advice. Many are marked “OFFICIAL: Sensitive – Legal” or “Legal and Privileged”. Whilst the markings are not definitive, they are relevant in the circumstances of the Applicant’s access request because they reflect the context of the advice and the confidential nature of the communications.

74. The disclosure of the information contained in the documents in category 1 (set out below) would result in disclosure of a confidential communication made between the client and a lawyer, or the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. Legal professional privilege attaches to the documents falling into category 1.

75. Under s 14(1) GIPA Act, there is conclusively presumed to be an overriding public interest against the disclosure of information which is the subject of legal professional privilege, and so the Tribunal is not required to perform the public interest test of balancing considerations under s 13 of the GIPA Act: Yee at [41].

76. Accordingly, as there is a conclusive public interest against those documents in category 1 being released, the Respondent’s decision not to release those documents is justified.

77. Those documents are: 40, 41, 42, 53, 54, 64, 65, 66, 67, 68, 69, 70, 71, 73, 74, 76, 77, 78, 79, 80, 81, 82, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 95, 96, 97, 98, 99, 100, 101, 102, 104, 105, 107, 108, 109, 110, 115, 116, 117, 118, 119, 120, 121, 122, 124, 130, 131, 132, 135, 138, 139, 140, 141, 142, 143, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203 and 204.

78. The determination against each document in Category 1 is set out below:

NOT FOR PUBLICATION Subparagraphs (1) – (116)

79. Category 2: Attachments to emails falling within category 1. The documents in category 2 are attachments to privileged communications and so are also privileged (see [50] above). Accordingly, as there is a conclusive public interest against those documents in category 2 being released, the Respondent’s decision not to release those documents is justified and its decision in relation to those documents will be affirmed.

80. The following documents fall within Category 2: 43, 44, 45, 46, 47, 48, 49, 50, 51, 55, 56, 57, 58, 59, 60, 61, 62, 63, 72, 111, 112, 113, 114, 123, 133, 136, 144, 145, 146, 147, 148, 149, 150, 151, 152 and 172.

81. I note that document 43 (pages 31- 38), document 44 (pages 49 – 57), document 45 (pages 76 – 83) and document 51 (pages 100 – 102) have been released administratively. Their inclusion in this category does not prevent the Respondent from taking that course in relation to those or any of the other documents. However legal professional privilege is still pressed over the remaining parts of documents 43, 44 and 45 and over document 51 so they have fallen into this category for determination.

82. The determination against each document in Category 2 is as follows:

NOT FOR PUBLICATION Subparagraphs (1) – (9)

83. Category 3: Email chains containing communications created for the dominant purpose of seeking or providing legal advice from the Respondent’s lawyers, but also containing other information which is not privileged, but in relation to which disclosure (in part or on whole) could reasonably be expected to give rise to one or more of the public interest considerations against disclosure in the Table to s 14(2) of the GIPA Act and, on balance, that public interest consideration against disclosure outweighs the public interest consideration in favour of disclosure.

84. The documents in category 3 are only partially privileged and the Respondent has not justified withholding the parts falling outside legal professional privilege. However, those parts cannot be released before a determination is made as to whether another public interest consideration in the Table in s 14 applies and/or they require third person consultation. It would be inappropriate for the Tribunal to undertake this task as it has not been addressed in the parties’ submissions and is likely to require third party consultation. However, it is prudent to give the Respondent an opportunity to do so.

85. The Respondent must reconsider those parts of the documents against the public interest considerations against disclosure in the Table in s 14 and then release the documents which do not fall within the public interest considerations against disclosure.

86. The following documents fall within category 3: 37, 38, 39, 52, 83, 94, 106 and 137.

87. The determination against each document in category 3 is as follows:

NOT FOR PUBLICATION Subparagraphs (1) – (8)

88. Category 4: Email chains not containing communications created for the dominant purpose of seeking or providing legal advice from the Respondent’s lawyers and with no other information which might fall under another public interest consideration in the Table in s 14 and/or require third person consultation.

89. The documents over which legal professional privilege was not pressed fall into this category. The Respondent has not maintained privilege over the following documents and the decision to refuse access has not been justified: 75, 103, 125, 126, 127, 128 and 134.

90. Category 5: Attachments to emails falling within category 4. Only document 129 falls in this category. This document is an attachment to document 125, over which privilege is not pressed. There is nothing in document 129 to suggest that its release would result in the disclosure of a confidential communication made between a client and a lawyer for the dominant purpose of the lawyer providing legal advice or that any other public interest considerations apply and the decision to refuse access has not been justified.

91. The documents in categories 4 and 5 are not privileged, do not disclose any other public interest considerations and the Respondent has not justified the decision to refuse access to them. They must be released.

What is the correct and preferable decision in all the circumstances in relation to the access decision?

92. The Respondent’s decision is affirmed in relation to the Category 1 and 2 documents.

93. In relation to the category 3 documents, it is set aside and remitted to the Respondent for reconsideration in accordance with the recommendations in relation to Category 3 documents in paragraph [87] and the GIPA Act.

94. In relation to the category 4 and 5 documents, it is set aside and substituted with a decision that the Applicant be granted access to that information within 20 business days after the date of this decision is made, if it has not already been provided.

The charges decision

95. Under section 64 of the GIPA Act, an agency may impose a processing charge for dealing with an access application.

64   Processing charge for dealing with access application

(1)  An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application.

Note.

The decision to impose a processing charge is reviewable under Part 5.

(2)  The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in:

(a)  dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or

(b)  providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access).

(3)  The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant.

(4)  Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application.

…

67   Waiver of processing charge for personal information application

If an access application is made for personal information about the applicant (the applicant being an individual), the agency cannot impose any processing charge for the first 20 hours of processing time for the application.

Note.

This does not limit an agency’s power to reduce, waive or refund processing charges under section 127.

96. Under s 67 of the GIPA Act, if an access application is made for personal information about the applicant (the applicant being an individual), the agency cannot impose any processing charge for the first 20 hours of processing time for the application.

97. Schedule 4 cl 3 to the GIPA Act defines Personal Information:

4 Personal information

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following—

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual’s name and non-personal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

98. Under s 68(1) of the GIPA Act, an agency may require an application to make an advance payment of a processing charge (as an advance deposit). Section 69 stipulates that the maximum advance deposit that can be required is 50% of the amount that the agency estimates to be the total processing charge for dealing with the application (ignoring any reduction in processing charge to which the applicant may be entitled.)

99. Section 127 of the GIPA Act provides that:

127   Waiver, reduction or refund of fees and charges

An agency is entitled to waive, reduce or refund any fee or charge payable or paid under this Act in any case that the agency thinks appropriate, subject to the regulations.

Note.

See section 51A concerning the effect of a waiver, reduction or refund of the fee for an access application.

Background

100. The Respondent decided to impose a processing charge of $780 under s 64(1) of the GIPA Act. It was not contested that the Applicant paid both the deposit and the outstanding $375 of the processing charge to the Respondent. The documents were provided to him on 3 July 2024 after payment of the processing charge.

101. Part 6 of the Delegate’s decision included a “Table of Processing Charges” detailing how time was spent processing his application and the applicable charges:

Action	Time	Cost
Consideration of the application (including identification of the most efficient way to conduct searches for records and requesting searches)	0.5 hours	$15.00
Searching for records (including compiling, assessing, recording and providing to the decision maker)	9.5 hours	$285.00
Consultation 2 parties consulted in accordance with section 54(2)	0.5 hours	$15.00
Providing access in response to the application and other functions Records reviewed to determine scope and public interest considerations for and against disclosure	10 hours	$300.00
Decision making (drafting the decision letter & preparing information for release)	5 hours	$150.00
Total time	26 hours	780.00
Total processing charges	$780.00
Discounting application fee and first hour or processing	-$30.00
Advance deposit paid	-$375.00
Balance as at 24 April 2024:	$375.00

The Respondent’s submissions

102. The Respondent submitted that its decision to impose a $780.00 processing charge was in accordance with the provisions of the GIPA Act, and its notice of requirement to pay the advance deposit was in accordance with sections 68 and 69 of the GIPA Act, noting that the charge of $375.00 was 50% on 5 March 2024.

103. The Respondent did not consider section 67 of the GIPA Act to be applicable, as the request was not solely for the Applicant's own personal information. Therefore the Respondent did not apply a waiver of the processing charge for the first 20 hours of processing time.

104. The Applicant had submitted that he had received a number of duplicate documents within the documents to which access had been granted, despite having excluded duplicate documents from the scope of his request. However, while attempts were made to extract duplicate documents or documents sent by the Applicant, to have undertaken a thorough review of the records for that purpose would have required manual extraction and additional processing time. The Respondent submitted that it was the time spent processing a request that determined the charge ultimately imposed. Even where duplicate documents had been excluded from the scope of a request, it was still necessary to review all documents within scope to determine whether duplicates existed. The Respondent submitted that a similar amount of time would be required to process a request, regardless of whether duplicates were excluded.

105. The Respondent submitted that once documents were identified, they needed to be reviewed as to whether they came within scope then for relevant exemptions. In relation to email chains, the whole chain needed to be included, for context and reduce processing charges. The processing time was commensurate with the scope of the request. More than 1000 pages had been identified and 10 hours of processing time was reasonable. The charges were appropriate and in line with the GIPA Act.

106. The Respondent provided an Affidavit from Jarrod Whitbourn, Director, Information Access within the Information Access Unit at Transport for NSW dated 24 October 2024. Mr Whitbourn also gave evidence at the hearing on 7 November 2024 regarding the processes undertaken by TfNSW in assessing access applications.

107. In summary, Mr Whitbourn’s evidence was to the effect that his team had been required to conduct searches using key terms and retrieve records to respond to the application, totalling 13.25 hours in searches. More than 300 records which were located were reviewed and assessed as to whether they were in the scope of the access application.

24. … While some attempt was made to extract from these records those which were duplicated or had been sent by the applicant, a thorough review of the records for this purpose would have required manual extraction and additional processing time.

108. At the hearing, Mr Whitbourn added that the search for the documents which came within the scope of the access request was significant. It was necessary to search widely for documents which came within the scope of each access request. It was not possible to simply assume that any past searches had uncovered all documents potentially coming within scope. Even if, as the Applicant posited, some documents had been kept in a central repository relevant to the Applicant’s ongoing matters, it was necessary to ensure that the correct searches were undertaken for every GIPA application. A search containing 1000 pages would rank in the top 1% of TfNSW access applications generally, and in the top 10% of Sydney Metro access applications. Other access applications might be larger in volume but processing time would be less due to better “findability” of the relevant documents.

The Applicant’s submissions

109. The Applicant submitted that he believed that the Respondent had imposed excessive charges in an attempt to discourage him from proceeding with his application. The majority of correspondence in relation to his GIPA application was file noted and filed in a central location which led to his conclusion that the charges were excessive and imposed in order to discourage him from pursuing his matters against the Respondent. The Respondent had also failed in their responsibilities by only releasing information which he had specifically excluded from his access request.

Has the Respondent established that the charges decision is justified?

110. Mr Whitbourn’s description of the methodology undertaken in searching for information which might come within the scope of an access request also supported the time spent searching for records. Although it was the Applicant’s experience in Sydney Metro that relevant information should be held in a central repository and so should not require much time to identify, Mr Whitbourn’s evidence that extensive searches were conducted for each access application to ensure that no information was overlooked is consistent with the requirements of the GIPA Act and supported by the documents themselves.

111. The Applicant now has the table of documents which was produced by the Respondent in accordance with Order 4 of the Tribunal’s orders of 10 October 2024 (the documents table), which gives a better understanding of the detail involved in the documents which were identified as coming within the scope of his request. However he has not seen the documents themselves (apart from those which have been released during the course of the proceedings) and so is unable to form a view as to their complexity.

112. In relation to the time taken to review the documents, as can be seen from the documents table and the discussion above regarding the access decision, the documents are varied and voluminous. At the hearing, Mr Whitbourn stated that the variation between the 13.25 hours in searches reflected in his affidavit and the 9.5 hours for which the Applicant had been charged probably reflected a discount having been applied. Having spent considerable time reviewing the documents, I am satisfied that 9.5 hours or even 13.25 hours is at the lower end of the time required properly to assess their contents.

113. The scope of the access application was far broader than merely comprising personal information about the Applicant and there was no basis on which to waive the fees for the first 20 hours under s 67 of the GIPA Act.

114. Processing charges are calculated on the basis of time. No charge is levied for volume or number of pages. I therefore also accept the explanation that excluding all duplicated documents would in fact have resulted in higher charges due to the extra processing time involved as reasonable and logical. Having considered the contents of the documents and the issues they have raised, as well as the evidence regarding the breadth of the searches undertaken, the processing time and charges are justified.

What is the correct and preferable decision in all the circumstances?

115. I am satisfied that the processing charges have not been elevated and the Respondent has justified the charges decision. As a result the correct and preferable decision is to affirm the charges decision.

Orders

116. The Tribunal makes the following orders:

1. The decision of the Respondent to refuse to provide access to information in full or in part in relation to the following documents is affirmed: 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 76, 77, 78, 79, 80, 81, 82, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 95, 96, 97, 98, 99, 100, 101, 102, 104, 105, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 130, 131, 132, 133, 135, 136, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203 and 204.

2. The decision of the Respondent to refuse to provide access to information in response to an access application in relation to the following documents is set aside and remitted to the Respondent for reconsideration in accordance with the recommendations in relation to Category 3 documents in this decision and the provisions of the GIPA Act within 30 business days after the date of this decision: 37, 38, 39, 52, 83, 94, 106 and 137.

3. The decision of the Respondent to refuse to provide access to information in response to an access application in relation to the following documents is set aside and, in substitution, a decision that the Applicant be granted access to that information within 20 business days after the date of this decision is made if it has not already been provided: 75, 103, 125, 126, 127, 128, 129 and 134.

4. The decision of the Respondent to impose a processing charge is affirmed.

5. Under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the sound recording and the transcript of the closed hearings (from 10:58 to 11:51 am on 10 October 2024 and 10:20am to 12:11pm; 12:11 pm to 12:45pm and 1:43 - 1:48pm on 7 November 2024) of these proceedings, and the paragraphs in this decision marked “NOT FOR PUBLICATION” is prohibited.

6. Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant or any other person apart from representatives of the Respondent, of the sound recording and the transcript of the closed hearings (from 10:58 to 11:51 am on 10 October 2024 and from 10:20am to 12:11pm; 12:11 pm to 12:45pm and 1:43 - 1:48pm on 7 November 2024) in these proceedings and the paragraphs in this decision marked “NOT FOR PUBLICATION” is prohibited.

7. Under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of any of the confidential documents contained in the bundle of confidential documents lodged by the Respondent paginated 1 - 1084 is prohibited.

8. Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant of any of the confidential documents contained in the bundle of confidential documents lodged by the Respondent paginated 1 - 1084 is prohibited, apart from those listed in order 2 (after reconsideration by the Respondent) and order 3, unless otherwise released administratively by the Respondent.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 06 January 2025