Sobczuk and Attorney-General's Department

[2003] AATA 423

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 423

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/799

GENERAL ADMINISTRATIVE DIVISION		)
Re		PEDRO SOBCZUK

Applicant

And ATTORNEY-GENERAL'S DEPARTMENT

Respondent

DECISION

Tribunal Senior Member KL Beddoe

Date9 May 2003 

PlaceBrisbane

Decision

The Tribunal sets aside the deemed refusal and decides:

(a)      the subsequent decision of the respondent in relation to documents concerning application for financial assistance is affirmed;

(b) relevant documents held by the Australian Government Solicitor are exempt documents within the terms of section 7(2) of the Freedom of Information Act 1982;

(c) alternatively, section 42 of the said Act applies to the documents referred to above at (b);

(d)      relevant documents relating to the sale of property by Aboriginal and Torres Strait Islander Commission are not exempt documents as conceded by the respondent; and

(e)      the matter is remitted to the respondent to give effect to the Tribunal’s decision 28 days from the date of decision.

....................(Sgd).....................

KL Beddoe
  Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – access to documents – exemptions – exempt persons, bodies and Departments – legal professional privilege – whether exemptions properly claimed – whether applicant should be given access to the documents

Freedom of Information Act 1982 ss 7(2), 42

REASONS FOR DECISION

9 May 2003  Senior Member KL Beddoe          

1.      The applicant has sought access to documents under the Freedom of Information Act 1982 (“the Act”).

2.      On 28 August 2000, I made an interim decision, for the reasons given orally at the hearing, and in particular because I was satisfied that the applicant had been granted access to all documents relating to his applications for financial assistance, as follows:

(a)that part of the decision of the respondent in relation to documents concerning applications for financial assistance is affirmed;

(b)relevant documents held by the Australian Government Solicitor are exempt documents within the terms of section 7(2) of the Freedom of Information Act 1982.

3.      Subsequent to the hearing the respondent discovered a file in its Perth Office concerning a sale of property by the Aboriginal and Torres Strait Islander Commission (“ATSIC”) to the Carnarvon Medical Service Aboriginal Corporation.

4.      ATSIC waived its privilege in relation to this file and the respondent granted access to the file by providing the applicant with a full copy of that file together with a schedule of documents.

5.      The applicant originally applied to the respondent for access to:

(a)all documents relating to the applicant and the “Carnarvon Aboriginal Medical Services Corporation” (sic) held by the respondent; and

(b)documents from 1996 including legal advice given to the Registrar of Aboriginal Corporations.

6.      That request apparently went astray and the respondent only became aware of the application at a later date.  The explanation of the respondent’s position is in the T document (at T5).

7.      In the event certain documents identified as containing legal advice to the Registrar of Aboriginal Corporations were subsequently released to the applicant after the Registrar waived privilege. 

8.      Exhibit 1, which is an affidavit by Christopher William Meaney, satisfies me that the respondent has conducted an effective search for all relevant documents.  I am also satisfied that these documents are those set out in the schedule of documents together with the documents of the Perth Office which were subsequently discovered as noted earlier.

9.      An affidavit of Anthony Pead, made on 6 October 2000, corroborates the evidence of Mr Meaney. That affidavit details further searches made after the Tribunal’s interim decision of 28 August 2000.

10.     An affidavit by Sarah Elisabeth Catherine Byrne, made on 12 October 2000, evidences further searches undertaken for relevant documents and satisfies me that all relevant documents have been discovered.

11.     Ms Byrne discovered three files in the respondent’s Perth office described as follows:

(a)      Carnarvon Medical Service – 1 file 96004260

(b)      Carnarvon Med Service (IHC) – 1 file 96007171

(c)       Sobczuk – 1 file 00015582.

12.     I am satisfied, on the basis of Ms Byrnes’ evidence, that file 96007171 is an in-house counsel file in respect of legal advice a Mr Macliver gave on issues arising on file 96004260 and consists of eight pages of bills or billing guides.

13.     I am also satisfied that file 96004260 concerns legal advice and assistance provided to the Registrar of Aboriginal Corporations in the course of the Australian Government Solicitor’s competitive commercial activities. Mr Glynn’s affidavit satisfies me this is the case.

14. File 00015582 was created in response to the applicant’s request under the Act and is therefore not relevant to the application for access.

15.     A further file was subsequently discovered by the Perth office and access has been allowed to that file (paragraph 3 refers).

16.     The applicant subsequently made written submissions which, in essence, contested the respondent’s claims that all relevant documents had been discovered.  Those submissions reflected a general dissatisfaction with the outcome of matters arising from his employment by the Carnarvon Medical Service Aboriginal Corporation. The Tribunal has made previous decisions in relation to other applications for review which deal more particularly with those matters.  Those matters are beyond the jurisdiction of the Tribunal in this matter.

17.     I am satisfied that the respondent has made extensive searches for relevant documents and that it is more likely than not that all relevant documents have been discovered.

18. In relation to the claim for legal professional privilege, that is, exemption within the terms of section 42 of the Act, I am satisfied that the exemption applies to the legal advice given to the Registrar of Aboriginal Corporations. That means that files 96004260 and 96007171 are exempt from access under the Act. In any event, sub-section 7(2) of the Act makes these documents exempt.

19.     I accept the respondent’s submission that the Australian Government Solicitor, although part of the respondent at the relevant time, operated on a commercial basis as lawyers to the Registrar of Aboriginal Corporations and that the Registrar paid commercial rates for this legal work.

20.     I will confirm the interim decision and add that the applicant be allowed access to the ATSIC documents as conceded by the respondent.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe

Signed:         Sarah Oliver
  Associate

Date of Hearing  28 August 2000
Date of Interim Decision           28 August 2000
Date of Final Decision               9 May 2003

The Applicant Appeared in Person  
Solicitor for the Respondent     Ms S Byrne, Australian Government Solicitor