Choy v Willoughby City Council

CATCHWORDS: Whether documents in the possession of a third party are held by an agency. The principles pertaining to documents in the possession of a solicitor retained by an agency for the purposes of litigation. Legal Professional privilege exemption.

LEGISLATION CITED : Freedom of Information Act 1989, s.6(e)

CASES CITED: Waite v Hornsby Shire Council [2007] NSWADT 265 Ganley v Northern Sydney Central Coast Area Health Service [2009] NSWADT 161

APPLICANT In person REPRESENTATION: RESPONDENT C Bolger, barrister

The decision under review is set aside and in lieu thereof the following orders are made: 1. As to the two documents numbered 3 and 4 in annexure D to exhibit R4, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 and are not exempt documents and therefore the applicant is granted access to them pursuant to the Act ORDERS: 2. As to the two documents contained in annexures B and C to exhibit R4, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 and are not exempt documents and therefore the applicant is granted access to them pursuant to the Act 3. As to the seven documents contained in exhibit R3, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 but are each exempt documents by reason that they are subject to legal professional privilege and therefore the applicant is not granted access to them pursuant to the Act 4. The respondent is to give access to the four documents referred to in orders 1 and 2 forthwith, but not before the expiry of the appeal period 5. The documents contained in exhibit R3 are not to be disclosed without further order of the Tribunal.

1 The applicant commenced these proceedings seeking access to documents under the Freedom of Information Act 1989 (the Act). Initially access was sought to certain documents pertaining to a particular development application (in relation to land) that the Respondent had under consideration. A significant number of documents most likely were involved initially as the development application, after the normal administrative process, became the subject of litigation. In this regard it is sufficient to note that, at the end of the day, the respondent in essence declined to grant access to documents falling within the application which were contained in files in the possession of the respondent's solicitors, and not in any files which were maintained by the respondent. The parties have taken steps to identify documents that are truly in issue and to meet a procedural complexity and this has necessarily led to some intricacy in formulating these reasons. Consequently, a little time must be spent in explaining these developments.

2 During interlocutory stages, the respondent provided two lists of documents that were said to list the documents in issue. The first list (exhibit R1) noted 2 documents that were said not to be held by the agency. The second list (exhibit R2) noted 09 documents that were also said not to be held by the agency and which, in any event, were subject to claims of legal professional privilege. Exhibit R2 in fact notes 10 documents but two of them (numbers 1 and 4) are the same. However, by the time of hearing the parties had varied and limited the scope of the application. First, exhibit R1 was initially expanded to 4 documents (see annexure D to exhibit R4). However, two of these 4 documents (documents 3 and 4), as discussed further hereunder, are contained on a Court file and the respondent clearly has access to them, being one of the litigants. Access to them ought to be granted, there being no exemption claim. This leaves only documents numbered 1 and 2 in annexure D to exhibit R4 in issue in these proceedings. Documents 1 and 2 are in evidence as annexures B and C to exhibit R4. Secondly, exhibit R2 was reduced to 07 documents. These 07 documents are listed in annexure E to exhibit R4 and copies of these 07 documents are contained in exhibit R3. The parties are to be commended for their endeavours in this regard.

3 Consequently, these proceedings are only effectively concerned with, firstly, documents 1 and 2 in annexure D to exhibit R4, the issue being whether they are held by the respondent, given that they are located on the solicitor's file only, and secondly, documents 1 to 7 in annexure E to exhibit R4, the issues being whether they are documents held by the respondent and whether they are subject to legal professional privilege. It is only these 9 documents that require any substantive consideration.

4 During the interlocutory stages the parties adopted a pragmatic approach to resolve a procedural issue. The Tribunal would of course need to peruse copies of the documents for purpose of determining the respondent's second argument. However, the respondent was not in a position to file copies of the relevant documents, given its position that it did not have possession nor control of them. However, it undertook to request its solicitors to search its records to determine whether they held any documents falling within the applicant's request under the Act and, if so, make copies of the documents available for filing so that both of the respondent's arguments could be heard and determined at the same time. This avoided the need to have a second hearing should the Tribunal determine that the respondent in fact did have control of these documents. The search and its results are described in exhibits R3 and R4. Copies of relevant documents located in the solicitor's files on search, that is, documents falling within the scope of the applicant's request under the Act, have been made available and filed. These documents comprise annexures B and C to exhibit R4 (being 2 documents, there being no privilege claim with respect to them) and exhibit R3 (as to the remaining 7 documents). However, this has been done upon the express basis that the respondent would not thereby lose its entitlement to advance its first argument. The applicant accepted this course. Consequently, the fact that the respondent has been able to arrange for the filing of copies of the nine documents has not thereby put the respondent in the position that it has control of, nor an immediate right of access to, the documents for the purposes of the Act. This aspect should be put to one side when determining this issue.

5 The Act provides for access to be given, subject to exceptions, to documents held by an agency which, by definition, includes documents to which the agency has an immediate right of access and documents which are in the possession of, or under the control of, an officer of the agency (s.6(e)). It is common ground that the respondent does not have physical possession of any of these documents, the issue being whether it never the less has immediate rights of access to them. This is a question of mixed fact and law and much will depend upon the circumstances. Documents in the possession of an agency's solicitor may well be documents to which an agency has the immediate right of access (Waite v Hornsby Shire Council [2007] NSWADT 265). However, the precise nature of the documents and the relationship between the agency and the third party in possession must be considered, as not all documents in the possession of the third party, even though they may have some nexus with the agency, will necessarily be documents to which the agency has an immediate right of access (Ganley v Northern Sydney Central Coast Area Health Service [2009] NSWADT 161).

6 The decisions in Waite and Ganley applied the same test, but with different outcomes. The question in both was whether the agency had an immediate right of access to the documents in question but the circumstances pertaining to each matter were such that the outcomes differed. Waite involved documents in the possession of an agency's solicitors whereas the documents in Ganley were in the possession of a third party which had been commissioned to conduct a review on behalf of the agency. In Ganley's case the terms of the commission did not require the third party to make the documents in question available to the agency. Of course, in the circumstances being considered, there will always be some nexus between the documents held by the third party and the affairs of the agency: this necessarily follows from the fact that the agency will have obviously commissioned the third party to do something on behalf of the agency. However, as Ganley shows, this will not always suffice to bring about the situation where it can be said that the agency has an immediate right of access to particular documents. Where a term of the arrangement between the agency and the third party is that the agency does not require access to the documents in question, this will suffice to demonstrate the absence of an immediate right to access, following the decision in Ganley. On the other hand, where a solicitor holds documents containing instructions which pertain directly to the retainer given to the solicitors by the agency this may well suffice to give rise to an immediate right of access, there being no express reservation to the contrary, as was the case in Waite. Consequently, the authorities show that consideration must be given in each case to the nature of the relationship between the agency and the third party, the terms of the arrangement between them, the nature of the documents in issue and the circumstances in which those document have been brought into existence.

7 In the matter at hand, the relevant relationship is that of solicitor and client. The solicitor was retained for the purpose of litigation in which the respondent was involved. Whilst the retainer itself is not in evidence, there is no suggestion that there is any express term limiting the respondent's access to documents held by the solicitor. However, rules 8.5.1 and 8.5.2 of the Solicitor's Rules are material in the circumstances in that they provide that a client is entitled to documents (held by a solicitor) which have been prepared for the client, or predominantly for the purposes of the client, at the client's cost as well as documents from others which have been obtained on behalf of the client and are intended for that client's use. The implication though is that documents held by a solicitor that do not fall within these two rules, without anything more, are not documents to which a client is entitled. It is of course quite possible that documents on a file maintained by a solicitor pursuant to a retainer could relate to matters pertaining to the management of that file, for example, rather than to the affairs of the client. The respondent's submissions clearly engage this distinction (see paragraphs 42 to 47 thereof). However, the critical question lies not with the distinction itself, but in determining how the distinction is to be employed with respect to particular documents. Much will, of course, turn on the nature of the nine documents in question, the nature of the information they contain and the circumstances in which, and purpose for which, they were brought into existence. Little assistance is gained from simply identifying a document as being a file note or internal memorandum as this does not take the analysis far enough. As discussed above, the documents effectively in issue are the 2 documents comprising annexure B and annexure C to exhibit R4 and the 7 documents contained in exhibit R3. It is only these nine documents that require examination.

8 Annexure D to exhibit R4 in fact lists four documents, none of which are subject to an exemption claim based on legal professional privilege. The only issue is whether the respondent holds these documents for the purposes of the Act. As noted above, two of these documents, numbers 3 and 4, are located on litigation files maintained by the Court which heard the proceedings. They were filed in that Court at the direction of the respondent. The respondent, qua litigant, would be able to obtain access to these documents and therefore has an immediate right of access to them. They require no further consideration, there being no exemption claim, and the applicant ought to be granted access to them. The respondent does not contend otherwise (respondent's submissions dated 02.07.10 paragraph 47). However, documents 1 and 2 are still effectively in issue on this point.

9 Document number 1 listed in annexure D, being of 6 folios, is annexure B to exhibit R4. That document records a communication from a third party to the respondent's solicitors which is forwarded by the solicitors to the respondent with additional comment. The communication from the third party discusses issues concerning the litigation then on foot. The communication from the solicitors comments, by way of advice, on one of these issues and suggests administrative arrangements. Clearly the communication from the third party was obtained on behalf of the respondent and contained information which the solicitors, in the normal course, were obliged to forward to the respondent for its consideration. The communication from the solicitors to the respondent is advice which pertains directly to the respondent's conduct of the litigation and cannot be characterised as a communication for the solicitor's own purposes. Both communications occurred in circumstances that make them central to acts done in the course of the solicitor's retainer. These factors suffice to confer upon the respondent a right of immediate access to document number 1.

10 Document number 2 listed in annexure D, being of 3 folios, is annexure C to exhibit R4. That document records a communication from the solicitors to the respondent as well as a draft statement that was attached to the communication. It also records part of document 1 discussed above. Clearly, this document is one to which the respondent has an immediate right of access for the same reasons as given above in relation to document number 1.

11 Consequently, both documents 1 and 2 are documents held by the respondent by reason of the fact that it has an immediate right of access to them. The applicant should be granted access to these two documents under the Act, given that the respondent accepts that any privilege claim has been waived in relation to these two documents (see annexure D to exhibit R4).

12 Exhibit R3 contains the remaining seven documents requiring a determination. The applicant has not had access to any of these documents and they have been filed as annexures to a confidential affidavit which the applicant also has not seen. The respondent argues that it does not have an immediate right of access to any of these documents as they are located only on its solicitor's files. Also all these documents are claimed to be exempt as they are covered by legal professional privilege. Consequently, for these two reasons the Tribunal needs to be circumspect in its reasons concerning these documents.

13 These two grounds may be considered together as the nature of the documents and the circumstances in which they came into being are relevant to both. Where a solicitor is retained to conduct litigation on behalf of a client, and the litigation is on foot, the solicitor will invariably need to provide the client with advice from time to time and to obtain instructions from the client as to how the litigation, in view of such advice, will be conducted. Should the occasion warrant, the solicitor will need to obtain information from third parties, refer the information to the client and advise as to its legal significance. As matters develop there may be a need to revise earlier advice and instructions. Documents will need to be prepared for use in the Court proceedings and decisions taken as to how to employ information obtained in the course of these proceedings. All seven documents record matters falling within one or more of the types of activities just enumerated. Also, all seven documents are clearly documents obtained on behalf of, or for the purposes of, the respondent or are documents which record issues or advice in relation to the Court proceedings. The documents show this to be the case ex facie. Two consequences flow from this. Firstly, all seven documents are clearly documents to which the respondent would have an entitlement to under the Solicitor's rules. It cannot be said that they merely contain information, or were brought into being, for the solicitor's own purposes. Consequently, they are documents to which the respondent has a right of immediate access and therefore they are held by the respondent for the purposes of the Act. Secondly, they are documents to which the legal professional privilege exemption applies, at least as to part of each of the documents. In view of this access cannot be granted to the applicant, there being no general discretionary principles that may be considered when this exemption is in play: the legislation does not confer any such discretion and the general law does not contain any principle that permits documents covered by the privilege to be made available to a member of the public, even one who has a bona fide interest in the contents of such documents.

14 Whilst there are parts of several of these documents that do not fall within legal professional privilege, for example communications arranging for conferences simpliciter, access with excision of the exempt material is not apposite here. It is clear that what the applicant is seeking is information contained in documents which could assist in explaining why the respondent did not press certain issues in the subject Court proceedings and excision of exempt material would simply provide him with information in which he has no interest. Consequently, it cannot be found that the applicant would wish access to redacted versions of these documents where the information he is really interested in has been excised.

15 To give effect to these findings it is necessary to set aside the respondent's decision and make new orders in lieu. The following orders are made:

1. As to the two documents numbered 3 and 4 in annexure D to exhibit R4, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 and are not exempt documents and therefore the applicant is granted access to them pursuant to the Act.
2. As to the two documents contained in annexures B and C to exhibit R4, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 and are not exempt documents and therefore the applicant is granted access to them pursuant to the Act.
3. As to the seven documents contained in exhibit R3, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 but are each exempt documents by reason that they are subject to legal professional privilege and therefore the applicant is not granted access to them pursuant to the Act.
4. The respondent is to give access to the four documents referred to in orders 1 and 2 forthwith, but not before the expiry of the appeal period.
5. The documents contained in exhibit R3 are not to be disclosed without further order of the Tribunal

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.