Community Resource Network v NSW Department of Justice

Issues

1. There are several issues for determination, they are: 1. Whether there is an overriding public interest against disclosure of certain information 2. Whether the Respondent conducted reasonable searches for information 3. Whether the Respondent's decision in respect of the scope of item 3 in the amended access application is a reviewable decision.

The Application

1. On 12 August 2020, the Applicant made an application to the Respondent for access to certain information. On 9 September 2020 the Respondent, having initially accepted the application as valid, advised the Applicant that it was invalid. The Applicant sought review of that decision by the Information and Privacy Commission (IPC). On 20 October 2020 the IPC upheld the decision of the Respondent that elements of the application were invalid.
2. On 2 July 2021, pursuant to an order of the Tribunal, the parties engaged in a telephone discussion to establish the scope of a valid access application. Over the following two months there were further exchanges concerning the content of a valid access application. Finally, on 13 August 2021, the Respondent provided the Applicant, by email, with a proposed amended scope of the access application. On the same day, the Applicant replied, by email, agreeing to that proposed scope of the application.
3. The amended application listed 6 items to be accessed: 1. A copy of information the Respondent holds in relation to a named person during a specified period 2. Records of communication relating to that named person and 13 separate organisations during a specified period 3. Copies of any audit or review conducted by the Respondent during a specified period and any outcomes from same 4. Information relating to the appointment of Kittu Randhawa and any Performance Improvement Plan 5. A copy of the complaint lodged to the Australian Charities and Not-for-profit Commission 6. Information relating to the reasons for not renewing the contract.

Jurisdiction

1. I am satisfied that the Respondent's decision to refuse access to information in response to the Applicant's access application is a decision which is reviewable by the Tribunal pursuant to s80(d) of the Government Information (Public Access) Act 2009 (the GIPA Act). Further, I am satisfied that the Tribunal has jurisdiction to conduct this review pursuant to s 100 of the GIPA Act, read with ss 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and s 9 of the Administrative Decisions Review Act (NSW) 1997. The Respondent bears the burden of establishing that its decision to refuse access is justified: s 105(1) of the GIPA Act.

Material before the Tribunal

1. The Respondent relied on the following material: 1. A confidential affidavit of David Whyte dated 23 June 2022. 2. An open affidavit of David Whyte dated 23 June 2022 3. A confidential bundle of documents, containing the documents that were refused subject to the claims of legal professional privilege and overriding public interest against disclosure. 4. An open affidavit of Peter Bazzo dated 23 June 2022 5. An open bundle of documents that were released to the Applicant with redactions pursuant to the claims of privilege and public interest. 6. Written submissions
2. The Applicant relied on written submissions and on documents attached to those submissions.

Legislation

1. Section 5 of the Government Information (Public Access) Act 2009 (the GIPA Act) establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. The Respondent variously relies on clauses 1(d), 1(f), 1(g), 3(a) and 3(b) of the Table to section 14(2) and on clause 5 of Schedule 1 of the GIPA Act, to refuse certain information to the Applicant.

Consideration and Findings - Legal Privilege

1. The relevant information, refused or redacted, is summarised in a schedule of documents prepared by the Respondent pursuant to an order of the Tribunal made on 11 April 2022. That schedule lists 182 pages of documents and the specific GIPA Act clauses applied to each of them. There is a considerable degree of overlap, in that several clauses of the GIPA Act are referred to for refusal or redaction of much of that information.
2. It is convenient to commence my consideration with the first reason stated in the Respondent's 22 October 2021 decision which is clause 5 of Schedule 1 which is concerned with privilege. Section 14(1) of the GIPA Act stipulates it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Sch 1 to the GIPA Act. Relevantly, Clause 5(1) of Sch 1 provides: It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
3. The clause refers to legal professional privilege (LPP) and uses the phrase "client legal privilege", that phrase is used in the Evidence Act 1995 (NSW) (Evidence Act). There remains an unresolved issue as to the appropriate test for privilege - that is s 122 of the Evidence Act or the common law position set out in Mann v Carnell (1999) 201 CLR 1. In Transport for NSW v Robinson [2018] NSWCATAP 123 at [43], the issue was raised before the Appeal Panel and the Appeal Panel determined in that case that it was not necessary to decide the issue.
4. I am satisfied that in this case the application of common law principles would not produce a different result in this matter and have considered the matter according to the test in the Evidence Act.
5. Section 118 of the Evidence Act deals with privilege in the context of the provision of legal advice and litigation and relevantly provides: 1. Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of - 1. a confidential communication made between the client and a lawyer, or 2. a confidential communication made between 2 or more lawyers acting for the client, or 3. the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
6. Section 117 of the Evidence Act contains the following relevant definitions: client includes the following: 1. a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), 2. an employee or agent of a client, 3. an employer of a lawyer if the employer is: 1. the Commonwealth or a State or Territory, or 2. a body established by a law of the Commonwealth or a State or Territory, … confidential communication means a communication made in such circumstances that, when it was made: 1. the person who made it, or 2. the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: 1. the person who prepared it, or 2. the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. …
7. In Jackson v University of New South Wales [2019] NSWCATAD 224, the Tribunal provided the following summary of the position where the client is a government agency and the lawyer is employed by that agency: 105. Ultimately it is a question of fact as to whether a professional relationship exists between the client employer and the in-house lawyer and whether the in-house lawyer was consulted in his or her professional capacity: see and Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445, at [35] to [41]. Where advice is requested or given out-side this professional relationship the information is not privileged. 106. Even where a client-lawyer professional relationship is found to exist, this does not mean that every communication between the lawyer (including the employed legal practitioner) and the client (including a government agency) is thereby privileged. It is only those communications or documents that are confidential and made or prepared for the 'dominant purpose' of the lawyer (in his or her professional capacity) providing legal (professional) advice to the client, or for the dominant purpose of the client being provided with professional legal services relating to litigation.
8. The expression "dominant purpose" was considered in Archer Capital 4A Pty Ltd v Sage Group plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384 at [11], Wigney J stated: A dominant purpose is a reference to "the ruling, prevailing, or most influential purpose": Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416. It is a purpose that predominates over other purposes; the prevailing or paramount purpose: AWB Ltd v Cole (2006) 152 FCR 382 (AWB) at [105]-[106]. The purpose for which a document is brought into existence is a question of fact that must be determined objectively, however evidence of the subjective purpose will be relevant and often decisive: Esso at [172]; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]. An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Pratt) at [35].
9. The LPP claim relates to the documents listed in the 11 April 2022 schedule as: Document Numbers 14, 15, 20, 27, 31 and 32. They are made up of pages 104-106,115-116, 162 and 172-182 of the total bundle of documents.
10. The Applicant submits, in respect of the LPP issue: "The refusal of release is a cover up of the actions of DCJ officers and the legal privilege is a ruse…protecting officers that have acted in a manner which indicates maladministration, corrupt conduct and seeking benefit for their allies in sector organisations". I have not been able to identify any evidence in the material provided by the Applicant that supports these allegations. I have read the specific documents at length and in detail. They contain communications between Department officers and lawyers, both internal and external. It is clear on the face of the records and from the context in which they were created, that they are intended to be confidential in nature and they contain, or are for the dominant purpose of providing, legal advice to the Department.
11. I find that the documents page numbered 104-106,115-116, 162 and 172-182 of the total bundle of documents are subject to privilege, within the meaning of cl 5(1) of Sch 1 of the GIPA Act. The communications are between various lawyers and members of the Department who I am satisfied are 'clients' within the definition in the Evidence Act. On their face, the documents appear to be prepared for the dominant purpose of the lawyers providing legal advice to the Department.
12. Disclosure of the documents to the Applicant would reveal the matters that the legal advice was required to address. In my view, such disclosure would be "privileged from production" for the purposes of cl 5(1) of sch 5 to the GIPA Act. There is nothing to suggest that the privilege has been waived. Indeed, Mr Whyte in his confidential affidavit expressly states, in his capacity as Manager of Prudential Oversight for the Department, that he does not waive privilege. It follows that the claim based on legal professional privilege has been made out and there is a conclusive presumption of an overriding public interest against disclosure of the information in those documents.
13. I have considered the factors in favour of disclosure. In light of the above matters, I find that the Respondent made the correct and preferable decision when it refused access to the documents on the basis that they were subject to an overriding public interest against disclosure as privileged information.

Consideration and Findings - Other Grounds

1. The Respondent's other grounds for refusal/redaction are listed in the Table to section 14 of the GIPA Act. They are section 14 cl 1(d)(f)(g) and section 14 cl 3(a)(b). I will consider these clauses in the order in which they appear in the Respondent's original decision.
2. The first of these is cl 1(d). This clause is concerned with 'Responsible and Effective Government'. It states, "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to…prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions".
3. The information refused under this sub-clause is identified in the 11 April 2022 schedule of documents. The Respondent submits this material was provided on a confidential basis to facilitate an investigation and that its release would significantly impact upon the willingness of members of the public to assist or participate in investigations as assurances of confidentiality would be of little effect. In Robinson v Department of Health [2002] NSWADT 222 it was held that "the effective performance of an agency's investigative functions depended to a large extent on the cooperation of those who had relevant information. If information obtained confidentially is provided to an Applicant…then that disclosure could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of the agency's functions".
4. The confidential affidavit of Mr Whyte describes the nature of the information and the confidential basis on which it was obtained and the manner in which it facilitates the agency's functions.
5. On this issue, the Applicant submits, in part, "The notion that the release of these documents would compromise the supply of confidential information to the agency is a false representation. The supply of information which is malicious to then be used by the agency to result in the unjustified removal of funding to CRN, is more likely to create a public and sector outrage - the non-disclosure is an attempt by the agency to cover up their own maladministration, potentially corrupt conduct and corporate bullying". I have not been able to identify evidence, in the material provided by the Applicant, to support these allegations.
6. I accept the sworn evidence of Mr Whyte. It is clear that the information was provided on a confidential basis. It is clear from that evidence that the confidential provision of such information by members of the public significantly assists the Respondent to ensure the integrity of its programs. I accept that the information facilitated the exercise of the agency's investigative function, and that disclosure could reasonably be expected to prejudice the future supply of such information by members of the public. I have considered the factors in favour of disclosure. I find that the information was properly refused pursuant to s.14 cl 1(d).
7. The next ground, cl 1(f), states: "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to…prejudice the effective exercise by an agency of the agency's functions".
8. The Respondent submits that for this sub-clause the agency has two relevant functions namely, "to monitor, license, investigate and audit external service providers" and "to ensure that it is able to manage complaints related to funded non-government agencies in a fair, timely and consistent manner". The Respondent submits that its investigations rely on information often from members of the public and that disclosure could reasonably be expected to "inhibit or prevent members of the public from coming forward in the future with crucial and relevant information" and that this would negatively affect the Respondent's ability to gather evidence for its investigation function.
9. The Applicant submits, in part: "The effective exercise of the agency is therefore limited to the relationship between CRN and DCJ (formerly Family & Community Services) and could not reasonably be considered to impact the Department as a whole…Matters that are outside the contractual relationship…cannot be considered to compromise the effective exercise of the agency".
10. In Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80, the Tribunal held "the test is not whether a particular person whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in the future, but whether the agency would be able to obtain such information in future".
11. I have read the relevant information in detail and at length. I note and accept the relevant evidence of Mr Whyte. The Applicant has not pointed to any evidence or information to controvert the Respondent's evidence. The contractual argument put by the Applicant is not relevant to this issue.
12. I am satisfied on the evidence that disclosure of this information could reasonably be expected to negatively affect the ability of the Respondent to perform its functions. I have considered the factors in favour of disclosure. I find those factors are outweighed by the public interest against disclosure.
13. The next ground is cl 1(g) which states: "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to…found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence".
14. The Respondent relies on the evidence of Mr Whyte and on the departmental policy documents that cover contract management procedures, both of which state that complaints are managed confidentially "taking care not to disclose identifying details of the complainant". The Respondent submits "the records are of a sensitive nature in that they deal with a complaint made by a member of the public".
15. The Applicant submits: "Where people have made it a public matter of deprecating CRN - how would the agency be breaching a confidence?...the agency is covering up its own maladministration, breach of policies, failure in due diligence, lack of process all in the intent to corporately bully a very small NGO…It would be legitimate to consider the agency may breach a confidence if in fact the information was part of their role in the first place and should come to them. This was malicious information and damaging which the agency could have managed fairly and delegated appropriately, however chose to use it for nefarious purposes".
16. I have not been able to identify evidence of the claimed maladministration, lack of process or due diligence, bullying or nefarious purposes, in the material provided by the Applicant, which supports these allegations. Nor is there any evidence of any public statement or disclosure of information by any person that would detract from the obligation of confidentiality owed by the Respondent to any complainants.
17. I accept the sworn evidence of Mr Whyte and I am satisfied the information was obtained in confidence, the agency requires such information to be treated confidentially and the disclosure of the information could reasonably be expected to…found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.
18. I have considered the factors in favour of disclosure. I find those factors are outweighed by the public interest against disclosure of this information.
19. The next ground is in cl 3 of the Table which deals with "Individual rights, judicial processes and natural justice". Sub-clause 3(a) states: "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to…reveal an individual's personal information". Personal information is relevantly defined in Schedule 4 of the GIPA Act as "information or opinion…about an individual…whose identity is apparent or can reasonably be ascertained from the information or opinion". The Information Commissioner's Guidelines describe personal information as including a person's name, personal address and contact details, such as an email address or telephone number.
20. The Respondent submits that the redacted information is personal information as individuals are able to be identified from the information or their identities are reasonably apparent from the information. It includes names, contact details and other information of their personal circumstances. The disclosure of that information to the public at large renders individuals identifiable or contactable by other persons including persons unknown to the individuals to whom the information relates.
21. The Applicant submits "…all of these people have made their grievances public…their actions are therefore open…their identities are not personal or private given their actions of revealing themselves…".
22. I have read the redacted information in detail and at length. I accept the evidence of Mr Whyte as to how this information was obtained and treated in confidence. I am satisfied that it contains the names and contact details of people or that their identities can be ascertained from the information. I am satisfied the redacted material is personal information and that disclosure of the material could reasonably be expected to disclose an individual's personal information.
23. I have considered the factors in favour of disclosure. I find those factors are outweighed by the public interest against disclosure of this information.
24. The next ground is cl 3(b) which states: "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to…contravene an information protection principle under the Privacy and Personal Information Protection Act 1988" (the PPIP Act).
25. Section 18(1) of the PPIP Act states: "A public sector agency that holds personal information must not disclose the information to a person…Unless (a) the disclosure is directly related to the purpose for which the information was collected and the agency…has no reason to believe that the individual concerned would object to the disclosure". There are some exceptions to s. 18(1) but none that is relevant to this application.
26. The Respondent submits the disclosure of the refused information would be a breach of this legislation. The Respondent submits a significant factor against disclosure is that the Department is not able to impose any conditions upon the use or disclosure of information when it provides access to an Applicant. Thus, release of the information would in effect be "disclosure to the world at large". The Respondent submits disclosure of that information could result in negative consequences for those persons being disclosed to the public at large. The Respondent submits therefore there is a strong public interest in fulfilling its obligations under the PPIP Act.
27. The Applicant submits "These individuals have done all this on work time, in their working roles using work resources - funded in full or part by DCJ…This is in effect misappropriation by these people and their identities are not personal or private given their actions of revealing themselves in multiple ways".
28. The Applicant sets out, in its written submission, under the heading "3. Information is of a personal or private nature" several ways in which "these people have made their grievances public". I have read the material provided by the Applicant. The Applicant has identified one person by name and it may be that other identities can be ascertained.
29. However, the fact remains that cl 3(b) is designed to protect personal information. The Respondent submits and I accept there is a strong public interest in fulfilling its obligations under the PPIP Act. On the material before me there is no reason to conclude that disclosure of this personal information would be directly related to the purpose for which it was collected. Release of the information would contravene an information protection principle.
30. I have considered the factors in favour of disclosure. I find those factors are outweighed by the public interest against disclosure of this information.

Adequacy of searches

1. The Applicant submits the Respondent conducted inadequate searches when compiling the information sought or simply concealed relevant documents. The Applicant's 6 May 2022 submission states under the heading 'records' in reference to Item 1 of the amended scope of application, "In the change of scope Department advised 0 documents, CRN records evidence documents exist in correspondence with CRN, therefore more would be considered reasonable". The submission goes on to list other claimed inadequacies in the information provided. For example, paragraph 4 states "Actions taken against CRN, correspondence to CRN at the time, would necessitate there be an audit trail. There are no documents in the bundle released". There are similar statements in the following paragraphs and in the 14 March 2022 application for review. I will not restate them as the common theme is a supposition that such documents must exist and have not been released.
2. The Respondent submits it undertook reasonable inquiries within its business areas and relies on the sworn evidence of Mr Whyte and Mr Peter Bazzo, the acting manager of the Department's Open Government, Information and Privacy Unit, to support this claim. In his affidavit Mr Bazzo describes the search process undertaken and concludes, at paragraph 33, "I have independently reviewed the searches conducted, including the relevant OneTRIM containers, as well as the various email correspondences relevant to the searches. I am of the view that the searches conducted are appropriate, reasonable, and complete".
3. The evidence shows the Respondent is a major government agency with modern and comprehensive information storage and processing systems. Two senior managers of the Department have given sworn evidence that thorough searches were conducted for relevant information. The Applicant relies on supposition as to the existence of other records. I accept the evidence of Mr Whyte and Mr Bazzo. I am satisfied the searches conducted were appropriate, reasonable, and complete.

Scope of item 3 in the amended access application

1. The third issue (paragraph 8 above) is whether the Respondent's decision in respect of the scope of item 3 in the amended access application is a reviewable decision.
2. The Applicant contends item 3 of the amended scope of application was a summary of items 4, 5 and 6 of the original application, and that is a reviewable decision under the GIPA Act.
3. The Respondent submits that items 4, 5 and 6 fall outside the scope of the application, relying on the Applicant's written agreement of 13 August 2021 as to the amended scope and is therefore not a reviewable decision.
4. Section 80 of the GIPA Act sets out the decisions which are reviewable by the Tribunal under s. 100. That list of decisions does not include a decision of the agency that the information is 'out of scope' - see Frost v Commissioner of Police [202] NSWCATAD 62.
5. On 13 August the Applicant confirmed by email her agreement with the amended scope of her application as provided by the agency after discussion with her.
6. In these circumstances, I accept the Respondent's submission and find that items 4, 5 and 6 of the original application fall outside the scope of the access application and that decision is not reviewable by the Tribunal.

Conclusion

1. The Applicant's submissions contain many allegations of maladministration, lack of process or due diligence, bullying or nefarious purposes and corruption on the part of agency officials. I have been unable to find evidence in the material provided by the Applicant which supports these claims. In Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95, the Tribunal held at [62]: Proceedings under the GIPA Act are concerned with the provision of government records: not information held in people's heads and not information that is not found in a record. To attempt to use proceedings under the GIPA act to review the conduct of government agencies and their officers or staff, amounts to the use of those proceedings for a collateral purpose. Attempts to use review proceedings in the tribunal for a collateral purpose are to be rejected: Crewdson v Central Sydney AHS [2002] NSWCA 345; GA v the University of Sydney [2009] NSWADT 230.
2. I do not accept the various collateral claims of impropriety and other misconduct alleged by the Applicant against the Respondent.
3. I note the Information Privacy Commissioner (IPC) was advised of this application for review and in fact conducted an external review of the matter at the Applicant's request in February 2022. The IPC advised the Tribunal on 5 April 2022 that it did not seek to appear in these proceedings, and I note that the IPC made no recommendations in its own review.

Order 1. The Tribunal affirms the Respondent's decision of 22 October 2021 to refuse access to some information and to release some information as set out in the 11 April 2022 schedule of documents.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 14 November 2022