Freedom of Information Act Exemptions for Legal Privilege

The Tribunal reviewed a decision by a Council delegate to refuse access to documents on the grounds of legal professional privilege. The Tribunal affirmed the refusal, except for a specific tax invoice, finding that the documents were exempt under the Freedom of Information Act 1989.

CITATION: [NAME] v General Manager, Burwood Council [2004] NSWADT 261 DIVISION: General Division APPLICANT PARTIES: [NAME] RESPONDENT General Manager, Burwood Council FILE NUMBER: 043006 HEARING DATES: 18/08/2004 SUBMISSIONS CLOSED: 09/08/2004 DATE OF DECISION: 11/12/2004

BEFORE: Higgins S - Judicial Member APPLICATION: access to documents - adequacy of search - access to documents - legal professional privilege - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - legal professional privilege MATTER FOR

DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Evidence Act 1995 Attorney General (NT) v [NAME] (1986) 161 CLR 475 [NAME] v Cheung [2001] NSWADT 18 Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner (2002) 213 CLR 543 [COMPANY] v Commissioner of Taxation (1999) 201 CLR 49 CASES CITED: Goldberg v Ng (1995) 185 CLR 83 Grant v Downs (1976) 135 CLR 674 [NAME] v General Manager, Hawkesbury City Council [2004] NSWADT 135 Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADT 40 Mann v Carnell (1999) 201 CLR 1 APPLICANT REPRESENTATION: [NAME], as agent RESPONDENT [NAME], solicitor ORDERS: 1.With the exception of the tax invoice dated 5 November 2003, the decision of the Respondent is affirmed; 2.The decision of the Respondent in respect of the tax invoice dated 5 November 2003 is set aside and in substitution thereof a decision that the applicant be provided with a copy of the tax invoice with the exempt material, as set out in this decision, being deleted; 3.No orders as to costs.

REASONS FOR

DECISION Background 1 This is an application by [NAME] seeking review of a decision by a delegate of the General Manager ("the General Manager") of Burwood Council ("the Council") to refuse her access to 4 documents on the grounds that they were exempt as being legally professionally privileged. 2 [NAME] made her FOI request in a letter dated 24 November 2003. That letter stated as follows: "My application relates to my own entire Personal Affairs and to all factual and all statistical material, and to all internal working documents in relation to this FOI application. In relation to all business affairs and all personal documents in the schedule set out below from 1 to 7 in relation to [NAME]'s property, which is defined as 53A and 53B [ADDRESS] [POSTCODE]. These documents are to include the following:

1. All phone call records.

2. All file notes.

3. All diary notes.

4. All fax transmission records.

5. All memo records, all email records and all bills of paper DTC". 3 On 3 December 2003, [NAME], a delegate of the General Manager prepared a written determination of [NAME]'s FOI request. In that determination, [NAME] stated that she had considered [NAME]'s application and had decided to photocopy the documents on Council's file No. 230/53A. She went on to state that some of the documents in that file contained information which identified complainants/third parties, and that these details had been deleted from the copies that were provided on the grounds that they were exempt under cl. 4(1)(a) and (b) of Schedule 1 of the Freedom of Information Act 1989 ("the FOI Act"). She also stated that there were documents which were the subject of legal professional privilege, and access to these documents were refused on the grounds of cl. 10 of Schedule 1 of the FOI Act. 4 On 16 December 2003, [NAME] made an application for internal review. That application was determined on 16 December 2003 by [NAME], another delegate of the General Manager. Mr [NAME] is determination was to uphold the original decision of [NAME]. 5 [NAME] lodged her application with the Tribunal on 6 January 2004. On 12 February 2004, [NAME] again wrote to [NAME] requesting: "…all documents from the last FOI to be brought up to the date to this FOI application in accordance with the FOI legislation. In addition, please supply all documents in relation to the council's costs in relation to [NAME] and 53/[ADDRESS]". 6 On 19 February 2004, [NAME] responded to [NAME]'s request for additional documents and stated that she had determined to provide her with a photocopy of the documents on the Council's file (230/53a) from the date of her last determination (i.e. 3 December 2003), with the exception of documents which were subject to legal professional privilege and were considered to be exempt in accordance with cl. 10 of Schedule 1 of the FOI Act. 7 The Tribunal has jurisdiction to hear and determine this application pursuant to s.53(1) and (3)(a) of the FOI Act and s.38 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). Hearing 8 The matter came before the Tribunal at planning meetings and directions hearings on 24 February, 20 April, 18 May, 17 June and 13 July 2004. The matter was heard on 18 August 2004. 9 At the initial planning meeting, [NAME], who acted as agent for [NAME], stated that the matters in issue were: (a) the manner in which the Council had provided [NAME] with copies of documents; (b) the adequacy of the Council's search for documents relevant to [NAME]'s FOI request; and (c) whether the documents for which privilege had been claimed were in fact privileged. 10 In respect of the manner in which [NAME] has been provided with access to documents, [NAME] explained that Council had failed to provide a schedule of documents which it had found came within the terms of [NAME]'s requests, and which identified those documents that had been released and not released. This had made it difficult for [NAME] to check what she had been given and what had been refused. In light of these concerns, the Council agreed to prepare a schedule of documents. 11 In respect of [NAME]'s concern about adequacy of the search, the Council undertook to make a further search to ascertain whether there were any other documents coming within [NAME]'s request. Issues 12 The issues in this application are whether there has been adequate search for documents coming within the terms of [NAME]'s FOI request, and whether the documents for which access has been refused are exempt on the grounds of legal professional privilege. Relevant legislation 13 The relevant legislation is that contained in the FOI Act. 14 Part 3 of the FOI Act makes provision for any person to make an application for access to documents held by a government agency or a Minister (s.16 and s.17, FOI Act). Where a person makes such an application the agency is required to determine whether access to the document is to be given or refused (s.24, FOI Act). Where the agency fails to determine an application within 21 days after receipt of the application, the agency is taken to have refused access to the documents requested for the purpose of an internal review (s.24(2) and s.34, FOI Act). 15 An agency is able to refuse access to a document only on specified grounds (s.25, FOI Act). One such ground is that the document is an "exempt document" (s.25(1)(a), FOI Act). 16 An "exempt document" includes a document referred to in one or more of the provisions in Schedule 1 of the FOI Act (s.6 FOI Act). In this application, the relevant exemptions in Schedule 1 are as follows: "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". 17 Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document where it is practicable to give access to a copy of the document from which the exempt matter is deleted and the FOI applicant wishes to be given such a copy. 18 Section 55 of the FOI Act provides that the Tribunal, when determining a review application is to ensure that it does not, in its reasons for its decision or otherwise, disclose any exempt matter. 19 Section 61 of the FOI Act provides that in proceedings under the Act, the burden of establishing that the agency's determination is justified lies on the agency. Evidence 20 At the hearing of the matter, [NAME], who appeared on behalf of the Council, relied on an affidavit sworn by [NAME] on 6 July 2004. She also made [NAME] available for cross-examination. In addition to this, [NAME] tendered into evidence copies of the relevant applications and determinations relating to [NAME]'s FOI request and a chronology of events between [NAME] and the Council. It would appear from this chronology of events that there is a dispute between [NAME] and the Council in relation to the ongoing use of the premises at 53A and [ADDRESS], which are owned by Mr and [NAME]. 21 In her affidavit, [NAME] said as follows: (a) after receiving [NAME]'s FOI request, on or about 24 November 2003 she located the Council's property file in relation to the premises. This was a file numbered 230/53a. At the same time she checked the Council's Development Application Register, but noted that there were no development files for the subject premises. She then copied the documents on file 230/53a, with the exception of a legal advice dated 5 November 2003. In addition to this, she deleted information from some documents which identified third parties, as she believed that this information was exempt (b) some time after 24 February 2004, she was advised by [NAME] that [NAME] was concerned about the adequacy of the search that had been undertaken by her and that the Tribunal had requested that she conduct a further search for relevant documents. In response to this request she again rechecked the Council's file. In undertaking this check, she confirmed that there were no development files for the subject premises. She also checked the files relating to 53, 53A, [ADDRESS], Croydon. Again, she could only locate one property file which was labelled [ADDRESS], Croydon and numbered 230/53a. She then prepared a schedule of all the documents on the property file and listed these in the order that they appeared on that file. On the schedule she marked those documents which had been provided to [NAME] and those which had third party name details deleted, and the document that had been withheld on the ground of being privileged. Attached to her affidavit is a copy of the schedule which lists 102 documents and identifies 3 documents as being exempt. These are (i) a document dated 7 January 2004 and described as being legal advice from the Council's solicitors (ii) a document dated 22 December 21003 which is described as a letter of instructions to the Council's solicitor requesting legal advice; and (iii) a document dated 5 November 2003 described as being legal advice from the Council's solicitor. Attached to this document is a tax invoice dated the same date for legal services provided to Council. In addition to this schedule, she also attached a schedule, prepared by her, of documents which were on the Council's Freedom of Information file (F.0360.000). In my opinion, the documents on that list are of no relevance to this particular application (c) on or about 11 March 2004, she provided [NAME] with a copy of the abovementioned schedules (d) on 1 April 2004, she received a further letter from [NAME] requesting the provision of material relating to all "rezoning applications in [ADDRESS]". She responded to this request on 6 April 2004, stating that in her opinion, [NAME]'s request would substantially and unreasonably divert the Council's resources away from the use by the Council in the exercise of its functions. 22 In her oral evidence, [NAME] said that she had used the Council's computerised record management system to locate documents that had been received by the Council which came within [NAME]'s request. Her search found that there was only one file, as identified in her affidavit, in relation to the property for which documents were sought. In addition to this she searched on the microfile system, which showed some earlier files. On an examination of the documents on these files, she found that copies of the documents on the microfile were also contained in the Council's existing property file and copies had already been provided to [NAME]. She also explained that all files created by the Council are allocated a unique reference number that identifies the property to which the documents in the file relate. She also explained that files are kept in a central filing system, and the file is retrieved when needed. She acknowledged that various officers would have used the file, and in this case she had made no inquiries of individual officers or the word processors who had accessed the file to ascertain whether there were any additional documents. 23 [NAME] tendered into evidence a letter dated 8 March 2004, written by him on behalf of [NAME] to the Council, making a further request for documents. This request goes well beyond what was initially requested and which is the subject of this application. It is clear from the contents of the letter that this request had been made as a result of having been given access to the documents that are the subject of the FOI request that is the subject of this application. 24 On 2 September 2004, [NAME] filed an affidavit, sworn on that day, by [NAME]. That affidavit had annexed to it 5 documents which [NAME] alleged came within her FOI request and which were not disclosed to her. The inference from this is that there has not been an adequate search. Reasons and decision 25 The role of the Tribunal is to determine whether the decision of the delegate of the General Manager is a correct and preferred decision, having regard to the relevant fact and the applicable law: see s.63 of the Administrative Decisions Tribunal Act 1997. 26 I have carefully considered all the material that is before the Tribunal and for the reasons set out below, in my opinion, the decision of the General Manager is the correct and preferred decision. Adequacy of search 27 On the basis of the evidence of [NAME], I am satisfied that there has been an adequate search for all documents in the possession of the Council which come within the terms of [NAME]'s FOI request dated 24 November 2003. That request expressly sought access to documents relating to the properties at 53A and [ADDRESS], Croydon. While the FOI Act places some obligation on an agency to assist applicants in their request for access to documents, there is no obligation on an agency to go beyond that which is requested (see s.19 FOI Act). 28 In my opinion, on the basis of the information provided by [NAME] in her FOI request of 24 November 2003, there has been an adequate search. The fact that [NAME], on receiving copies of these documents, has subsequently identified documents from other property files does not make the search an inadequate one. Indeed, the subsequent request for documents amounts to a new FOI request and I note that this is how the Council has dealt with such a request. 29 During cross-examination, [NAME] was asked whether she had searched the Meriton file, to which [NAME] responded no, as it only had documents relating to that particular development. This development was across the road from [NAME]'s property and [NAME] explained that Council held many files in respect of this development. In my opinion, having regard to the terms of [NAME]'s FOI request that is the subject of this application, and [NAME]'s explanation of Council's filing system, it was not necessary for her to conduct a search of the documents on the Meriton files. It is also noted that a separate FOI request has been made by [NAME] in this regard. 30 In my opinion, there was also no evidence to suggest that documents may be held by employees of Council who had previously retrieved Council's file of [NAME]'s property. In this regard [NAME] did not produce any evidence from which it could be inferred that there was a likelihood that such persons had relevant documents in their possession that were not already on the file. 31 In respect to the documents attached to [NAME]'s affidavit of 2 September 2003, in my opinion these documents, other than the development application which was signed by Mr and [NAME], are of no relevance to this application. Unfortunately, the development application was not shown to [NAME] during the course of the hearing, which is surprising as the document bears a date of 5 February 2003. There is nothing on this document to indicate that this application was in fact lodged with the Council, and [NAME] did not state in her affidavit that she had in fact lodged it.

Accordingly, I must reject this evidence as [NAME]'s uncontested evidence was that Council did not have a development file on the properties at 53A and [ADDRESS]. Furthermore, copy of the document filed with the Tribunal is of such poor quality it is not possible to see if in fact the application relates to these properties in any event. Legal Professional Privilege 32 The principles in relation to legal professional privilege under the common law and under the Evidence Act 1995 (NSW) are well established since the High Court decision in [COMPANY] v Commissioner of Taxation (1999) 201 CLR 49 as affirmed in Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner (2002) 213 CLR 543. 33 I recently dealt with these principles in [NAME] v General Manager, Hawkesbury City Council [2004] NSWADT 135, and they were also dealt with by the Appeal Panel in Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADT 40. The decision of the Appeal Panel is subject to appeal, however, until set aside, the Tribunal is bound by the principles enunciated by the Appeal Panel. In summary, these principles are as follows: (a) 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: (i) to enable the legal advisor to give or the client to receive legal advice; or (ii) to be used in pending or contemplated proceedings. In such cases, confidential communications with third parties (non-agent third party) may also be privileged if they are for use in such proceedings (see [NAME] supra at [37] and Law Society of NSW supra at [27]). (b) in respect of documents for which privilege is claimed, it must be shown that the document came into existence for one or more of the abovementioned purposes. (c) the privilege is that of the client, in this case, the Council. (d) the privilege is waived if the confidential communication is disclosed to a third party, either expressly or inadvertently (see Mann v Carnell (1999) 201 CLR 1; Goldberg v Ng (1995) 185 CLR 83 and Attorney General (NT) v [NAME] (1986) 161 CLR 475). 34 It is well established that the rationale for this privilege is that it promotes the public interest of assisting and enhancing the administration of justice by enabling the client to make full and frank disclosures to his/her lawyer for the purpose of obtaining legal advice or for the purpose of litigation (see Grant v Downs (1976) 135 CLR 674 at 685). 35 I have examined each of the documents for which the exemption of legal professional privilege has been claimed, and I am satisfied that they are exempt on the grounds of legal professional privilege. From the contents of the documents it is abundantly clear that they came into existence for the dominant, if not sole, purpose of obtaining or giving legal advice. 36 The next question is whether it would be practicable to delete the exempt material and provide [NAME] with a copy of the document with the exempt matter deleted pursuant to s.25(4) of the FOI Act. In my opinion, with the exception of the tax invoice dated 5 November 2003, it is not practicable to provide [NAME] with a copy of the documents with the exempt matter deleted. In relation to the tax invoice, in my opinion the description of the nature of the professional fees on this invoice are exempt, and it would be practicable to provide [NAME] with a copy of the invoice with this description deleted. Costs 37 In her submissions, which were filed after the hearing of this matter, [NAME] made an application for costs pursuant to s.88 of the Administrative Decisions Tribunal Act 1997. As pointed out by [NAME], that section gives the Tribunal a discretion to award costs in relation to proceedings before it, but only if it is "satisfied that there are special circumstances" warranting such an award. 38 In this case, [NAME] submitted that the circumstances of this application gave rise to "special circumstances" for the following reasons: (a) [NAME]'s request for review of the legal professional privilege exemption was completely without substance and represented a frivolous and vexatious application. In this regard [NAME] pointed out that at two planning meetings, Council had advised the applicant of the purpose for which the exempt documents had been brought into existence, and despite this, at the hearing, [NAME] failed to lead any evidence in relation to the review of the claim for legal professional privilege. Furthermore, the authorities which were referred to by [NAME] during the final submissions as being precedent for the release of documents the subject of legal professional privilege did not on subsequent examination of these authorities in fact support that which he had asserted. This had caused additional delays in finalising the proceedings and a necessity for further submissions. 39 As pointed out in [NAME] v Cheung [2001] NSWADT 18 at 14: "The circumstances which would or would not 'warrant an award of costs' cannot be exhaustively listed. However, where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or unsubstantial procedural or substantive applications, an award of costs may be warranted". 40 As mentioned above, this matter was dealt with at planning meetings on several occasions. The objective of such planning meetings is to identify with greater clarity the matters, which are in issue between the parties. Another purpose is to endeavour to have the parties consider a resolution of their differences in order to avoid unnecessary costs and time in having a full hearing. 41 In this case, I am very mindful of the fact that [NAME] was not legally represented and that she chose to nominate [NAME] as her agent, who is also not legally trained. I am also mindful of the fact that the onus rested on the Council to establish that there had been an adequate search and that the exemption relied on by Council did in fact apply. 42 In this case, Council endeavoured to meet that onus by providing [NAME] with a schedule of documents that it had identified as coming within her request and explaining the circumstances in which the exempt documents came into existence. The affidavit of [NAME] was further evidence filed by Council in support of their contention that there had been an adequate search. His material was filed well before the matter was set down for hearing. However, in my opinion, [NAME] was entitled to test the evidence of [NAME], which [NAME] attempted to do at the hearing. The fact that he was not able to elucidate evidence from [NAME] that there were other files, which contained documents relating to [NAME]'s property does not mean that [NAME]'s insistence for a hearing was vexatious or frivolous. 43 In respect to [NAME]'s challenge to the Council's claim for exemption, this is a difficult area, as FOI applicants do not have any knowledge of the contents of the document. However, in this case I agree with [NAME] that [NAME] was given sufficient information well before the hearing as to the authors and recipients of these documents and the basis on which they came into existence. This information was sufficient for [NAME] to be satisfied, at a prima facie level, that they were privileged and that Council's claim for exemption was correctly made. 44 For the reasons stated above, while [NAME]'s application for costs has some merit, in my opinion, on balance, having regard to all the circumstances, I am not satisfied that this application gives rise to "special circumstances" warranting an order for costs. 45 The Tribunal Orders:

1. With the exception of the tax invoice dated 5 November 2003, the decision of the Respondent is affirmed.

2. The decision of the Respondent in respect of the tax invoice dated 5 November 2003 is set aside and in substitution thereof a decision that the Applicant be provided with a copy of the tax invoice with the exempt material, as set out in this decision, being deleted.

3. No orders as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.