SL v University of Sydney

[2011] NSWADT 65

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	SL v University of Sydney [2011] NSWADT 65
Hearing dates:	22 September 2010
Decision date:	01 April 2011
Before:	K Fitzgerald, Judicial Member
Decision:	Decision under review is affirmed
Catchwords:	Access to personal information Legal professional privilege
Legislation Cited:	Privacy and Personal Information Protection Act 1998 Freedom of Information Act 1989 Government Information (Public Access) Act 2009
Cases Cited:	Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Chan v Department of Education and Training (GD) [2010] NSWADTAP 7 Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner [2002] HCA 49; (2002) 213 CLR 543 Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 Fitzpatrick v NSW Office of Liquor v Gaming [2010] NSW ADT 72 General Manager WorkCover Authority of NSW v Law Society NSW [2006] NSWCA 84 Howell v Macquarie University [2008] NSWCA 26 Waterford v Commonwealth [1987] HCA 25
Texts Cited:	Nil
Category:	Principal judgment
Parties:	SL (applicant) University of Sydney (respondent)
Representation:	In person (applicant) Kerry Rehn (respondent)
File Number(s):	093329
Publication restriction:	Section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 applies in relation to the identity of the applicant.

Judgment

1. This matter involves an application by SL, a PhD candidate, (the 'Applicant'), for the review of a decision of the University of Sydney (the 'University') that certain documents requested pursuant to an application under section 14 of the New South Wales Privacy and Personal Information Protection Act 1998 (the 'PPIP Act'), are exempt as being subject to legal professional privilege.

Background

1. Much of the background below was provided in correspondence by the University to the Tribunal and copied to the Applicant. The relevant factual background was not contested by the Applicant.

1. On 30 April 2003, the Applicant made an application under the Freedom of Information Act 1989 ('FOI Act') for access to his "personal file" ('2003 Request'). On 13 May 2003, the University wrote to the Applicant enclosing a determination relating to some 181 documents as well as copies of many of those documents. There were some redactions that were explained in the University's correspondence but no document was withheld in its entirety. Copies of some documents were not included as it was assumed that the Applicant would have copies of them.

1. On 5 October 2005 a further request was made by the Applicant for 'his file' under the FOI Act ('2005 Request'). On 15 December 2005 a package comprising a determination of the University; further copies of the documents provided in 2003 (including copies of those not previously provided) and approximately 100 additional documents, all but one relating to the period since the first request, were couriered to the Applicant's home by the University ('2005 Determination'). This material was returned as there was no secure place to leave the package at the Applicant's home. Attempts were made by the University to contact the Applicant and arrange delivery of the documents in January 2006 and he responded that he was away from Australia until the end of the month but made no further contact.

1. In January 2007 the Applicant again contacted the University seeking access to 'his file'. He attended the University archives, was provided with access to his file on 2 February 2007 and requested copies of certain documents. At that time he made inquiries about the documents provided in response to his 2005 Request and on 21 February 2007 the Applicant was provided with the 2005 Determination including the additional documents requested in February 2007.

1. In response to the 2005 Determination, the University claimed various documents were exempt due to legal professional privilege. The 2005 Determination was not challenged by the Applicant. The documents over which privilege was claimed dated up to and including 13 December 2005 are the same as those the subject matter of the current application.

1. By application dated 13 July 2009, the Applicant sought access under section 14 of PPIP Act ('Current Application') to documents relating to his PhD candidature, specifically:

"Copies of any and all Annual Progress Reports;

Copies of any and all examiner reports related to the first examination of my PhD along with copies of my comments on the foreshadowed decision not to award the PhD;

Copies of any and all examiner reports related to the second examination of my PhD after revising and resubmitting the thesis, along with copies of my comments on the foreshadowed decision not to award the PhD;

Copies of any and all recommendations, reports and other relevant commentary of my supervisor, associate supervisor, head of department, completed as part of the process of examination;

Copies of any and all documentation on file in relation to a 31 July 2007 appeal lodged against the fail outcome on PhD examination, including a copy of any response from the University;

Copies of any and all documentation relating to an allegation of plagiarism made against me as part of the examination process, including documentation detailing an investigation and outcome of then Deputy Vice Chancellor, Professor Merlin Crossley (sic)."

1. On 21 July 2009, a decision was made by the University to grant access to the non-exempt documents containing personal information about the Applicant which fell within the Current Application. This correspondence also informed the Applicant that no Annual Progress reports for 2000 and 2001 were held on his file as the relevant supervisor did not retain copies; copies had not been placed on the student file relating to the Applicant and that they had been stored electronically but were lost when an office computer was replaced.

1. The Applicant sought internal review of that decision and on 11 December 2009 the original decision was upheld. The University provided the Applicant further copies of documents previously provided as well as additional documents answering the request. In its correspondence to the Applicant, the University explained that a number of documents had been withheld on the basis that they are subject to legal professional privilege and the determination contained a schedule of some 60 exempt documents ('Exempt Documents') three of which were subsequently provided to the Applicant on 22 September 2010 and two of which are duplicates of earlier documents in the list.

Tribunal's Jurisdiction

1. Section 55 of the PPIP Act and section 37 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act ') give the Tribunal jurisdiction to review the conduct that is the subject matter of the complaint.

Legislative Framework

1. The Applicant sought access to personal information under section 14 of the PPIP Act and orders from the Tribunal pursuant to section 55 of that Act.

1. Section 14 provides as follows:

'Access to personal information held by agencies

A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.'

1. The crux of the Applicant's complaint to the Tribunal is that the University wrongly relied on legal professional privilege to exempt certain documents from access.

1. Relevantly section 20 (5) of the PIPA Act provides:

(5) Without limiting the generality of section 5, the provisions of the Government Information (Public Access) Act 2009 that impose conditions or limitations (however expressed) with respect to any matter referred to in section 13, 14 or 15 are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act.

1. The Government Information (Public Access) Act 2009 (successor to the FOI Act) commenced on 1 July 2010 after the Applicant's application for documents and to the Tribunal and so this decision refers to the Freedom of Information Act.

1. Clause 10(1) of Schedule 1 of the FOI Act provides:

10 Documents subject to legal professional privilege

(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document.

Legal Professional Privilege

1. The interpretation of the exemption has traditionally been governed by the common law principles of legal professional privilege, rather than the statutory provisions relating to client legal privilege in the New South Wales Evidence Act 1995 : see for example Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 , at [9] to [12]; Howell v Macquarie University [2008] NSWCA 26; General Manager WorkCover Authority of NSW v Law Society NSW [2006] NSWCA 84.

1. However, as noted in Fitzpatrick v NSW Office of Liquor v Gaming [2010] NSW ADT 72, since those decisions were made the Evidence Act 1995 has been amended by the Evidence Amendment Act 2007 which made substantial changes to the provisions dealing with client legal privilege, found in Division 1 of Part 3.10 , with effect from 1 January 2009.

1. Following reasoning set out in paragraphs 61-67, the Tribunal determined:

'Thus, consistently with the reasons of the Appeal Panel in Director General, Attorney General's Department v Cianfrano, the task of an officer of an agency, when considering an exemption under clause 10, is to is to make up his or her own mind, on the basis of such information as is available, about whether the matter contained in a document has characteristics that would make it privileged from production in legal proceedings on the ground of client legal privilege under Division 1 of Part 3.10 of the Evidence Act 1995 . (cf Howell v Macquarie University [2008] NSWCA 26 per Campbell JA at [54]). The same task confronts the Tribunal on review.'

1. That decision has not been considered on appeal. However Chan v Department of Education and Training (GD) [2010] NSWADTAP 7, an appeal panel decision, handed down in the months before Fitzpatrick , adopted the traditional approach (see paragraph 16). This decision adopts the traditional approach in accordance with the relevant appeal decisions. If incorrect the alternative approach does not change the result of this determination.

1. Legal professional privilege arises from a lawyer/client relationship and applies to "confidential communications" between the lawyer (as legal advisor) and the client where the dominant purpose of the communication is either to enable the legal advisor to give or the client to receive legal advice; or to be used in pending or contemplated proceedings. See Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 as affirmed in Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner [2002] HCA 49 ; (2002) 213 CLR 543.

1. The privilege extends to advice which is of a non-legal character where that non-legal advice is connected to the giving of legal advice or for contemplated or pending litigation and to copies of documents that are not privileged where the copy is made for the dominant purpose of obtaining legal advice or for use in pending or contemplated litigation ( see Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 509, 550, 597).

1. The privilege applies to confidential communications between government agencies and their salaried legal officers provided they have the necessary degree of independence (see Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 62 and 73).

1. As set out in Chan v Department of Education and Training (GD) [2010] NSWADTAP 7 :

'The agency carries the onus of proof in establishing that documents are exempt on the ground of legal professional privilege under s 61 of the FOI Act: 'the burden of establishing that the determination is justified lies on the agency'. As Graham J said in Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445: 'It is for a party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence, but it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The Court has power to examine the documents for itself, a power which has been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence [various authorities cited].'

It is necessary to establish that in-house legal staff had the requisite degree of independence to bring the affected documents within the purview of privilege, having regard to the principles laid down by the High Court in Waterford v The Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54. While Gibbs CJ in Attorney General (NT) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500 at 510 was inclined to the view that the privilege could only be claimed by a lawyer who has been admitted to practice, the law is now clear that the privilege does extend a situation where a non-qualified person, such as a law clerk, is giving advice subject to the supervision of a practitioner: see, for example, Glengallan Inv P/L & Ors v Arthur Andersen & Ors; Equuscorp P/L & Anor v Glengallan Inv P/L [2001] QCA 115 ; [2002] 1 Qd R 233 per Williams JA at [19]; see also, Southern Cross Commodities Pty Ltd (In Liq) v Crinis [1984] VR 697 (Young CJ).

1. The University provided evidence that was not challenged by the Applicant in relation to the facts claimed to give rise to the privilege exemption. See affidavits of Kerry Rehn of 14 and 29 September 2010.

1. As a result of that evidence it is clear that the legal practitioners involved possessed real independence in the giving of advice. They each held a practising certificate in New South Wales and were employed within the University's Office of General Counsel an independent professional service unit of the University or, in the case of Sarah Heesom after 1 May 2007, as an external legal advisor to the University. The lawyers within the Office of General Counsel are expected to comply with the standards of professional conduct required of the legal profession.

1. Staff of the Office of General Counsel at various times received requests for legal advice from University staff in connection with issues arising in respect of the Applicant's PhD candidature in the University's Faculty of Engineering.

1. There was no evidence to suggest a wide circulation of any of the documents as would be inconsistent with the confidentiality required for privilege or otherwise waive the protection.

1. The documents over which privilege is claimed have been reviewed and there is nothing within the content of them to remove them from the principles outlined above. Accordingly the exemption was properly claimed by the University in relation to the Exempt Documents. The fact that in the course of providing advice, the relevant lawyers had access to information about the Applicant does not change that analysis.

1. The Applicant also raised issues of natural justice arising from the fact that the Office of General Counsel is part of University management. It is standard practice for public sector agencies to have in-house lawyers assist them make decisions when responding to requests for information and mechanisms exist to challenge such decisions both internally and to the Tribunal. Particularly in light of the findings of independence described above this argument takes the matter no further.

Other issues raised by the Applicant

1. In written submissions the Applicant also alleged breach of sections 12, 16, 17, 18 and 19 of the PPIP Act however none of these provisions formed the basis of his request for internal review nor his application to the Tribunal.

1. The complaint was not varied at any time and the issues were not pursued at hearing. As stated in ZR v NSW Department of Education and Training (GD) [2009] NSWADTAP 69 at 50:

'The parameters of the matters that can be considered by the Tribunal are set by the internal review process. The scope of the internal review process is set by the original complaint to the agency, or the complaint as varied following consultation between the agency and the complainant. See generally, KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 at [10] ff; and Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44 at [18] .'

1. In any event that, in relation to sections 16, 17, 18 and 19, no detail was given as to the alleged breach and the sections were merely referred to. In relation to section 12, the Applicant alleges that the University is in breach as the Annual Progress Reports were lost without "justifiable excuse".

1. The University provided evidence, that was not contested (paragraph 11 of the Affidavit of Kerry Rehn of 29 September 2010), that the University has progressively strengthened its systems and practices since 2001 and has in place a Privacy Management Plan dealing specifically with retention and security of personal information; University Recordkeeping Manual; Information Security Policy and induction and other training programs for staff on information privacy and record keeping. Having regard to this evidence, the explanation that was provided to the Applicant and then to the Tribunal in relation to the two Annual Progress Reports, and the other material that has been provided to the Applicant in relation to his candidature, I am satisfied that it is unnecessary to make orders in relation to the Annual Progress Reports under section 55 of the PPIP Act.

1. The Applicant also pointed to the University's delay in providing the internal review but did not make application under section 53(6) of the PPIP Act.

1. The Applicant raised many issues going to appeal of his PhD candidature and notes breach of the PhD Postgraduate Handbook in his application to the Tribunal. Those are not matters over which the Tribunal has jurisdiction and is a matter to be pursued within the University appeal process.

Privacy Commission

1. It is the position of the University that many of the documents that are the subject of the current request had previously been given to the Applicant or had been considered and determined exempt under the FOI legislation on the basis of legal professional privilege.

1. The Privacy Commission representative raised a question of jurisdiction in respect of those Exempt Documents that were also the subject of the 2005 Determination and the parties were invited to make further submissions to the Tribunal in writing subsequent to the hearing. The University provided submissions to the effect that the Tribunal did not have jurisdiction to again consider those documents that had been the subject of the 2005 Determination. The Applicant did not file any further submissions.

1. In light of the determination as to legal professional privilege above, it is not necessary to further consider the question of jurisdiction.

Conclusion

1. For the reasons set out above, the University's decision not to provide access to the Exempt Documents is the correct and preferable decision.

Order

1. The decision under review is affirmed.

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Decision last updated: 01 April 2011