Freedom of Information Request Deemed Invalid Due to Legal Privilege

The Tribunal affirmed the Land Council's refusal to provide documents on the basis of legal professional privilege and internal working document status, rejecting the claimant's request for access to documents under the Freedom of Information Act 1989.

CITATION: [NAME] v [NAME] [2010] NSWADT 55

DIVISION: [NAME]

APPLICANT [NAME] PARTIES: RESPONDENT [NAME] NUMBER: 083371

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 14 December 2009

DATE OF DECISION: 24 February 2010

BEFORE: [NAME] Member

CATCHWORDS: Freedom of Information - Access to documents – invalid request - legal professional privilege

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989

Administrative Decisions Tribunal Appeal Panel v Director-[NAME], Department of Commerce & Ors [2008] NSWCA 140 [NAME] v [NAME] [2010] NSWADT 45 In [NAME] v ACT Health [2005] ACTAAT 22 CASES CITED: [NAME] v [NAME] (No 2) [2004] NSWADT 185 Re [NAME] and University of Canberra (1995) 38 ALD 457 Waite v Hornsby Shire Council [2010] NSWADT 47 [NAME] v [NAME] Department of Education and Training [2009] NSWADTAP 73

APPLICANT In person REPRESENTATION: RESPONDENT P [NAME], solicitor

ORDERS: The decision is affirmed. Each party is to pay its own costs in the proceedings.

REASONS FOR DECISION

1 By letter dated 7 November 2008, the Applicant applied to the [NAME] ("the Land Council") pursuant to the Freedom of Information Act 1989 ("the FOI Act"). His application was as follows: I act for myself and [COMPANY] ([COMPANY]) Under the Freedom of Information Act 1989 ([NAME]) I request the following documents held or controlled by [NAME] ([NAME]):

1. All documents which [NAME] and/or [NAME] have prepared and/or helped prepare and/or have communicated which refer to me and/or [COMPANY] and/or [NAME] and/or [NAME] are mentioned.

2. All documents which contain information as to why it was necessary or appropriate to wind up the activities of any of the following organisations: [COMPANY]; and [COMPANY].

4. All documents which contain information as to what the financial impact has been of the decisions to wind up the activities of any of the following organisations: [COMPANY]; and [COMPANY].

4. All documents which contain information which is relevant to the statement by the [NAME] in the most recent Annual Report of [NAME] that state 'The provision of misleading and/or deliberate untruthful advice by consultants" I have the full concurrence and agreement of the principal of [COMPANY], [NAME] in making this request. In particular, [NAME] has directed me to communicate that he waives all issues of privacy and/or confidentiality in relation to the response by [NAME] to this request. 2 The Land Council did not make a determination of the request within the 21-day period allowed by section 18(3) of the FOI Act and accordingly by virtue of section 24(2) of the FOI Act the request is deemed to have been refused.

3 On 2 December 2008 the Applicant requested an internal review of the deemed refusal. By letter dated 12 December 2008 the Land Council's solicitor, [NAME], advised the Applicant that his request was refused. [NAME] advised that the refusal was on the basis that (i) the requested documents are subject to legal professional privilege; (ii) they are internal working documents of the Land Council; (iii) the work involved in dealing with the application would, if carried out, substantially and unreasonably divert the resources of the Land Council and its Solicitors, away from their use by the Land Council in the exercise of its functions; and (iv) the Applicants motives in seeking the documents.

4 [NAME] is not an officer of the Land Council and therefore his letter of 12 December 2008 cannot constitute a determination of the internal review request. In any event, it is common ground that the Land Council is a small agency and that all FOI determinations are made by its Chief Executive Officer. By virtue of section 34(3)(b) of the FOI Act the Applicant was therefore not entitled to seek an internal review of the deemed refusal. However, he was entitled to apply to the Tribunal for review of the Land Council's deemed refusal to [NAME] his request.

5 It seems that the Applicant has clients who were Directors of [COMPANY]. There is clearly a history of animosity between the parties and it appears that each has engaged in litigation concerning the other. [NAME] raised issues concerning those matters as relevant to the Applicants motives in making his request in this matter. The Applicant has denied any improper motive or that he has engaged in any abuse of process.

6 On 13 December 2008 the Applicant applied to the Tribunal seeking external review of the Land Council's determination. In response to the Land Council's assertions regarding the width of his request and the work that would be involved in dealing with it, the Applicant subsequently narrowed his request as follows. On 12 February 2009 he refined his request as:

1. All documents which [NAME] and/or [NAME] have communicated which refer to me and/or [NAME] which are in any way derogatory of me and/or [NAME]. I exclude from this request all court documents; and all correspondence with me or my law firm or [NAME]. By court documents, I include the contents of and exhibits to all affidavits which I have been served; and 2. All documents which contain information which might support the statement by the [NAME] in the most recent Annual Report of DLGLC that "the misleading and/or deliberate untruthful advice" had been provided by consultants. I use documents in its widest sense under the [NAME] Act. On 10 February, [NAME] argued that [NAME] might hold documents about the subject matter other than qua former Administrator of the [NAME]. Of course, the FOI Act only extends to [NAME] in certain respects. Our requests are made in that light. 7 The 12 February 2009 request was again modified on 30 March 2009. On 15 May 2009 he again clarified the request as: The following documents (in its widest sense) held or controlled by [NAME] ([NAME]): 1. all documents which [NAME] and/or [NAME] have communicated which impute that [NAME] or I may have: a. acted dishonestly b. been misleading or deceptive c. overcharged d. lied (whether or not an oath) and/or e, acted disgracefully 2. all documents which [NAME] and/or [NAME] have communicated which impute that I may have abused the process of the courts or been derelict in my duty as a solicitor Excluded from 1 and 2 are (a) Any pleadings or other Court documents, including drafts of any such documents. (b) Any affidavits, including any exhibits to affidavits, used in Court proceedings, including any drafts of any such documents. (c) Any transcript or Court exhibits arising from Court proceedings. (d) [ADDRESS] book, or other material used in Court proceedings that is in common between the partied. (e) Any correspondence or documents sent to or received from [NAME] or [NAME], 2. Any documents which contain information which is relevant to the statement by the [NAME] in the most recent Annual Report of [NAME] that state 'the provision of misleading and/or deliberate untruthful advice by consultants". 8 On 3 August 2009 he again clarified the request as: [NAME] and I (the Applicants) seek the following documents (defining "document" in its widest sense) held or controlled by [NAME] ([NAME]): 1. all documents which [NAME] and/or [NAME] have communicated which impute that [NAME] or I may have: a. acted dishonestly b. been misleading or deceptive c. overcharged d. lied (whether or not on oath) and/or e. acted disgracefully 2. all documents which [NAME] and/or [NAME] have communicated which impute that I may have abused the process of the courts or been derelict in my duty as a solicitor Excluded from 1 and 2 are (a) Any pleadings or other Court documents, including drafts of any such documents. (b) Any affidavits. Including any exhibits to affidavits, used in Court proceedings, including any drafts of any such documents. (c) Any transcript or Court exhibits arising from Court proceedings. (d) [ADDRESS] book, or other material used in Court proceedings that is in common between the partied. (e) Any correspondence or documents sent to or received from [NAME] or [NAME].

2. All documents which contain information which is relevant to the statement by the [NAME] in the most recent Annual Report of [NAME] that state ""the provision of misleading and/or deliberate untruthful advice by consultants". Applicable legislation 9 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with that Act.

10 Section 17 of the FOI Act relevantly provides: 17 Applications for access to agencies' documents An application for access to an agency's document: (a) shall be in writing, and (b) shall specify that it is made under this Act, and (c) shall be accompanied by such application fee as the agency may determine, and (d) shall contain such information as is reasonably necessary to enable the document to be identified, and ... 11 Section 25(1) of the FOI Act provides, in part, that an agency may refuse access to a document if it is an exempt document. Section 25(l)(a) of the FOI Act provides that an agency may refuse access to a document if it is an exempt document in accordance with one or more of the grounds of exemptions referred to in Schedule 1.

12 The onus is on the agency to satisfy the Tribunal that its decision was justified: section 61 of the FOI Act.

13 Clause 10 of Schedule 1 to the FOI Act relevantly 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.

14 In most cases, section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") deals with question of costs which arise for determination from and after 1 January 2009. On that date a new criterion for awarding costs under section 88 came into force by virtue of amendments contained in the Administrative Decisions Tribunal Amendment Act 2008. This replaced the previous requirement that the Tribunal find 'special circumstances' warranting an award of costs. This amended form of section 88 is the relevant legislation in the present proceedings, notwithstanding that the proceedings were commenced prior to the commencement of the amendments.

15 Section 88 is in the following terms: 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. The Land Council's case 16 The Land Council relies on the Affidavit of [NAME] sworn 16 September 2009. [NAME] has not sought to test any of the matters of fact sworn to in the Affidavit. The Affidavit sets out the Land Council's response on each category of documents in the revised application.

17 In his affidavit, [NAME] informed the Tribunal that no documents exist that fall within the scope of the revised FOI application, except in relation to overcharging. The Land Council asserts that all documents discussing overcharging as do exist are discussions between [NAME] as solicitor for the Land Council, Counsel acting for the Land Council, and the Land Council, concerning litigation presently being conducted, and litigation being considered. [NAME] submits that all such communications are privileged and as such are exempt from production to [NAME].

18 [NAME] provided detailed information with respect to issues that are the subject of current proceedings before the Supreme Court. With respect to paragraph 1 of the request i.e. "all documents which [NAME] and/or [NAME] have communicated which impute that …" [NAME] submits that it is not for the Land Council to decide what is, is not, might be, or might not be, imputed by documents. He says that as such, the request in calling for that type of judgement is incorrectly framed as an FOI request.

19 In regard to the copy of a letter dated 4 December 2008 from [NAME] to the Chief Executive Officer, [COMPANY] ("the Novell letter"), [NAME] asserted that [NAME] already has the document, he knows he has it and that [NAME] knows that he has it. He asserts that [NAME] does not need to make an FOI application about it.

20 [NAME] asserted that inquiries have failed to reveal any documents held by the Land Council with respect to the request for documents that contain information that is relevant to the statement by the Chairperson in the Annual Report. He submits that it seems likely that the information contained in the report was as a result of that opinion being shared by members in the oral tradition in which Aboriginal persons communicate, rather than being sourced in any document.

21 [NAME] submits that the application should be dismissed with costs. The Applicant's case 22 The Applicant relies on his own submissions and evidence in support of his application. He submitted that he has a legal right to the documents he has requested unless there is a relevant exemption. The starting point for agencies is that information must be disclosed on request, unless an exemption applies.

23 He asserts that his FOI request was a valid request and that the Land Council is not entitled to reject a request for documents, which impute certain matters. He says that the FOI Act only requires an application to contain such information as is reasonably necessary to enable the requested document to be identified. The duty of the agency is to identify documents that are covered by the request. He relies the Novell letter, which he asserts is held by the Land Council, as an example of the type of documents he is seeking. He contends that the Land Council is required by the FOI Act to produce any other such documents, unless they are exempt. He says that the Land Council has not contended that it is unable to identify documents which are covered by the request; nor that any lawful exemption applies.

24 With respect to [NAME]' assertion that it is not for the Land Council to decide what is, is not, might be or might not be, imputed by documents, the Applicant says that the FOI Act requires that the Land Council decide what documents are within the scope of a reasonable interpretation of the terms of his FOI application.

25 With respect to the Land Council's assertion that some documents may properly be the subject of legal professional privilege, he submits that those documents need to be identified, and the claim tested.

26 With respect to the Land Council's assertion that it does not hold any other documents that are within the scope of his request, the applicant has submitted that the Land Council is obliged by FOI Act to produce not only documents that it physically holds but also documents that it legally controls. He argues that documents that [NAME] dealt with as Administrator of the Land Council are in that category.

Discussion 27 As noted, the Land Council is deemed to have refused the request. The issue in these proceedings is whether that deemed refusal is the correct and preferable decision.

28 The Land Council has asserted that part of the FOI request is not a valid request for the purposes of section 17 of the FOI Act because it requires the Land Council to form a judgement as to something that can be inferred from a document.

29 The requirement in section 17(d) of the FOI Act that the application "shall contain such information as is reasonably necessary to enable the document to be identified" was discussed in [NAME] v [NAME] (No 2) [2004] NSWADT 185. Judicial Member Britton commented at [34]–[35]: It is not open to an agency confronted by an application that on its face is unclear to merely throw up its hands and deny possession of the relevant documents. The agency is required to assist this process of identification (s 19(1)). While s 19(1) does not apply to this request, as the [agency] did not refuse to accept [the] application, it demonstrates that the parliament's intention in relation to FOI requests is that agencies facilitate the process rather than obstructing it. … While an agency is required to take reasonable steps to assist an applicant to identify the requested document, this obligation does not extend to second-guessing that the applicant is in fact requesting a different document to that described.

30 In the present case, on the instigation of the Land Council the Applicant has revised his request a number of times. In my view the requirement that an agency assist the process of identification has been satisfied.

31 In [NAME] v ACT Health [2005] ACTAAT 22, the ACT Administrative Appeals Tribunal considered how an agency should interpret an FOI request where its scope is unclear. [NAME] noted at [43] that: a request under the FOI Act is not to be interpreted with the same degree of precision as one would approach a piece of legislation or even a set of pleadings. In determining what is relevant to the request, regard must be had to the words of it. It is also to be considered in context and not in isolation. Part of the context is formed by the events leading to the request.

32 In Re [NAME] and University of Canberra (1995) 38 ALD 457 the Commonwealth Administrative Appeals Tribunal considered whether a request complied with comparable requirements under section 15 of the Commonwealth Freedom of Information Act 1982. The Applicant had requested "exam papers; a random sample of other student responses to that exam; the exam stencil; any other documentation used in the assessment of that unit." At paragraph [21] Deputy President McMahon found that the request for "a random sample" did not comply with the requirements of section 15 as it was a request for a selection of documents brought about as a result of some judgment exercised by the Respondent and it was not within the scope of section 15 to require any agency to undertake such a task. (20) The only matter to be determined, therefore, is whether the applicant is entitled to access to "a random sample of other student responses to that exam". ... (21) In my view, this request does not comply with the requirements of s 15. One of those requirements is that the applicant is to provide such information concerning the document is reasonably necessary to enable a responsible officer of the agency to identify it. A request for a random sample is a request for a selection of documents brought about as a result of some judgment exercised by the respondent. In my view, it is not within the scope of s 15 to require any agency to undertake such a task.

… (24) The respondent should not have to guess at the meaning of the terms of any request. Section 24(6) prohibits a refusal to [NAME] access on the ground that the request for the document does not comply with s 15(2)(b), that is to say that the request does not provide such information as is reasonably necessary to identify the document, unless the agency has given the applicant a written notice stating an intention to refuse access and makes appropriate arrangements for consultation.

33 Notwithstanding the revision of the request, part of the request remains in a form that requires the agency to exercise a subjective value judgment in identifying relevant documents. In my view, section 17 of the FOI Act does to require any agency to undertake such a task. It follows that the aspect of the request that requires that exercise of judgment is not a valid request. For that reason, that aspect of the deemed decision should be affirmed.

Clause 10 exemption 34 Clause 10(1) of Schedule 1 of the FOI Act provides that 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. Judicial Member Higgins most recently summarised the relevant case law in Waite v Hornsby Shire Council [2010] NSWADT 47 as follows: 15 It is not disputed that legal professional privilege is a common law right in that it is 'a rule of substantive law which enables a person to resist the giving of information or the production of documents to a third party which would reveal confidential communications between the person 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': see [NAME] (2002) 213 CLR 543; [2002] HCA 49 (at [9]) per [NAME], Gaudron, Gummow and Hayne JJ; see also [NAME] Manager, WorkCover Authority of [NAME] v [COMPANY] of [NAME] [2006] NSWCA 84 at [67] and [COMPANY] v Commissioner of Taxation (1999) 201 CLR 49. 16 In WorkCover Authority at [68] [NAME] explained the rationale the privilege as follows: '68. The rationale of legal professional privilege is "that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline": [NAME] v [NAME] (at 685); Attorney-[NAME] (NT) v [NAME] (at 487); see also Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 per [NAME] (at 74), per Deane J (at 114), per [NAME] (at 128).' 17 At [73] [NAME] said: '73. Once it is established that the legal practitioner was acting in the requisite capacity, a confidential communication will attract privilege even if it contains extraneous matter as long as it was prepared for the dominant purpose of giving legal advice.' 18 Any privilege that does attach to a confidential communication is that of the client, who can expressly or by implication waive that privilege: see [NAME] v Secretary to the Department of Justice [2008] HCA 37 at [45] and [NAME] (1999) 201 CLR 1. Once a waiver of the confidential communication is established the client no longer has a right to resist a claim for production on the grounds of legal professional privilege. 19 [NAME] (1979) 36 FLR 244 at pp. 245 – 246 [NAME] provided a summary of circumstances where legal professional privilege will extend to a document. These circumstances (omitting citations) included the following: (a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. (b) …

(c) …

(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. …

20 Whether information in a document is privileged is ultimately a question of fact. In Howell v Macquarie University [2008] NSWCA 26 at [48] Campbell JA said the clause 10 exemption, 'should be construed without any prior inclination to construe it narrowly, nor any prior inclination to construe it broadly'. At [54], His Honour went on to explain how the Tribunal was to assess the evidence where an agency relies on the clause 10 exemption: 'The task of the Tribunal, in reviewing a claim of legal professional privilege made by an agency, is to make up its own mind, on the basis of such information as it has available to it, about whether the matter contained in a document has the characteristics that would make it privileged from production in legal proceedings on the ground of legal professional privilege.'

35 In the present case, the Land Council relies on the evidence of [NAME] that the only documents that the Land Council holds that fall within the scope of the FOI request are discussions between [NAME] as solicitor for the Land Council, Counsel acting for the Land Council, and the Land Council, concerning litigation presently being conducted, and litigation being considered. The Land Council is a small agency with limited resources and few staff who could provide evidence. In the circumstances, I accept the evidence of its solicitor as asserting the claim on behalf of his client. I am satisfied that all such communications are exempt from production pursuant to Clause 10 of Schedule 1 to the FOI Act. For that reason, that aspect of the deemed decision should be affirmed.

36 [NAME] asserts that the Land Council does not hold any other documents that that fall within the scope of the FOI request. In [NAME] v [NAME] Department of Education and Training [2009] NSWADTAP 73, the Appeal Panel did not accept an assertion made by the agency in the course of proceedings that documents responsive to the request did not exist; and remitted the request for reconsideration. The Appeal Panel said in that case: '28 In our view the Commerce case is not to be read as requiring the Tribunal to decline jurisdiction simply on the basis of an assertion by an agency in submissions that it has no documents responsive to a request. Something more is required – at the least, the making of an official statement in the formal response to the request to that effect that is credible, or, preferably, the formal giving of a s 28(1)(b) notice.'

37 In the present case, I accept [NAME]'s evidence that the only documents that the Land Council holds that fall within the scope of the FOI request are those asserted to be exempt pursuant to Clause 10 of Schedule 1 to the FOI Act.

38 The Applicant asserts that the Land Council holds other documents that fall within the scope of his FOI request and that it has failed to identify them. In Administrative Decisions Tribunal Appeal Panel v Director-[NAME], Department of Commerce & Ors [2008] NSWCA 140 the Court of Appeal determined that the jurisdiction of the Tribunal conferred by section 53 of the FOI Act does not extend to the review of the adequacy of searches undertaken by an agency. In my view, the Court of Appeal decision makes it clear that the Tribunal does not have the jurisdiction to order the Land Council to undertake the further search that the Applicant is seeking.

39 It follows, in my view, that the correct and preferable decision is that the deemed decision should be affirmed.

Whether an order for costs should be made 40 [NAME] has sought an order for costs in favour of the Land Council. [NAME] contends that the Applicant has brought his FOI requests as a ploy to distract the Land Council from other proceedings. He says that the present application is no less than a complete abuse of process.

41 In response to a similar assertion in another matter involving the Land Council ([NAME] v [NAME] [2010] NSWADT 45) I commented: 27 Notwithstanding that the Land Council is a small agency with limited resources, the Applicant has correctly asserted that he is entitled to make FOI requests and to expect that the Land Council will determine those requests. If it fails to do so he is entitled to commence proceedings in this Tribunal. In my view the Land Council's argument that he should not have commenced the proceedings, in circumstances where it had failed to respond to either his initial FOI request or his internal review request, is untenable.

42 In that matter the Applicant had submitted that if the Land Council had taken the time to process his requests expeditiously or even acknowledge that they would consider his requests, then there would not have been a need for him to make his applications to the Tribunal. In my view the same situation arises in this matter. These proceedings could have been avoided had the Land Council responded to the Applicant's FOI request in the time permitted by the FOI Act.

43 Given the Land Council's failure to respond to the Applicant's FOI request it was almost inevitable that proceedings would be commenced in the Tribunal. Notwithstanding that the Applicant has been unsuccessful, I am not satisfied that the claim had no tenable basis in fact or law as required by section 88(1A)(c). Nor do I consider that the Applicant conducted the proceedings vexatiously. I am unable to identify any other relevant factor pursuant to section 88(1A)(e) which would make it fair to order that the Applicant pay the Land Council's costs. In my view, the Land Council's application for costs should be dismissed.

Order 1. The decision is affirmed. 2. Each party is to pay its own costs in the proceedings.

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.