Curtin v Lord Howe Island Board - [2017] NSWCATAD 86 - NSWCATAD 2016 case summary — Zoe

NSWNSWCATAD

Curtin v Lord Howe Island Board

[2017] NSWCATAD 86

NCAT Administrative and Equal Opportunity|2016-11-04

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Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2016-11-04

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

reasons for decision

In February 2016, the Applicant, Mr Curtin, applied to the Lord Howe Island Board ("the Board") under the Government Information (Public Access) Act 2009 ("the GIPA Act") requesting access to information held by the Board. In his access application Mr Curtin sought the following information: All Board records relating to complaints, grievances, investigations, allegations and entries to the lease in perpetuity which relate to me, are about me, or involve my property, including all records of entry to leasehold land compliant with LHIB Procedure for Access to Leasehold Land s2(3).
Mr Curtin explained that the scope of the request included: records such as photographs and videotapes along with the documented approvals to record, and approvals for the destruction of photos, videos and other records, The records applied for include but are not limited to the following allegations known to me plus alt others yet to be disclosed" by the LHI Board, and those I may not recall:
Mr Curtin also provided a number of examples of the information that he was seeking.
The Board's Manager Business & Corporate Services, Bill Monks, wrote to Mr Curtin and requested payment of an advance deposit in relation to the estimated processing charges to provide access to the information. Mr Monks advised: Processing charges Processing charges are payable to provide access to the information. The application fee you have paid will count towards these charges. It is estimated that it will take a total of seven person-hours to deal with your application, at a rate of $30.00 per hour. The $30.00 application fee that you have already paid counts towards the first hour of processing. Therefore you are required to pay a further $180.00. The processing charge for work already undertaken in dealing with the application is $30.00. Advance deposit for payment of processing charge You are required to make an advance payment of 50 per cent of the total processing charge of $210.00; that is, a further $75.00 in addition to the application fee already paid. The date by which the advance deposit must be paid is 23 March 2016. …

In regard to the withheld information Ms Holloway advised: In regard to the information referred to in paragraph 3.1.2.1 above, as advised in the notice of determination dated 23 June 2016, I have applied the public interest test in relation to the information in question and, on balance, I determined that the public interest considerations against disclosure outweigh the public interest considerations in favour of release. Section 14 of the Act sets out the public interest considerations against disclosure. Section 14(2) provides that the public interest considerations listed in the Table to section 14 are public interest considerations that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest consideration against disclosure of government information. Of relevance to the information in question are items 1(d), 1(e), 1(f) and 1(h), and item 2(b) of the Table namely, that the disclosure of the information could: • prejudice the supply to the Board of confidential information that facilitates the effective exercise of its functions (1(d)) • prejudice the effective exercise by the Board of its functions (1 (f)) • prejudice the conduct, effectiveness or integrity of investigations conducted by or on behalf of the Board by revealing its conduct or results (1 (h)) • prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (2(b)). The information in question comprises • information provided to the Board by members of the public • information that was developed by staff of the Board as part of its investigative processes into alleged contraventions of the Lord Howe Island Regulation and/or National Parks legislation The Lord Howe Island Act 1953 (LHI Act) governs the functions and responsibilities of the Board. Section 5 of the LHI Act sets out the Board's charter which includes the following: (e) to manage, protect, restore, enhance and conserve the Island's environment in a manner that is consistent with and promotes the principles of ecologically sustainable development set out in section 6 (2) of the Protection of the Environment Administration Act 1991, (f) to manage, protect, restore, enhance and conserve: (i) vacant Crown lands, and (ii) lands reserved or dedicated under section 19 or 19A (including, in particular, the Lord Howe Island Permanent Park Preserve), in a manner that recognises the World Heritage values in respect of which the Island is inscribed on the World Heritage List referred to in the United Nations Convention Concerning the Protection of the World Cultural and Natural Heritage, Section 11 of the LHI Act sets out the general functions of the Board which includes the following: (3) The Board shall, subject to any other Act in force relating to the protection or conservation of fisheries, fauna or flora, take all practicable measures to protect and conserve the fisheries, fauna and flora of the Island. Section 12 of the LHI Act provides that the Board may "exercise and discharge any powers, authorities, duties and functions which the Board may be authorised or required to exercise and discharge by the regulations." (s. 12(h)) Pursuant to the LHI Act and the LHI Regulation the Board is, amongst other things, authorised to issue penalty notices for and/or prosecute breaches of the LHI Act and LHI Regulation. In fulfilling these functions the Board may undertake investigations into alleged breaches of the LHI Act or LHI Regulation to determine if there is sufficient evidence to prosecute the alleged offence. Officers of the Board are also authorised by the Office of Environment and Heritage to exercise all the functions of an authorised officer under chapter 7 (except Part 7.6) of the Protection of the Environment Operations Act 1997; for the purpose of the following Acts and any regulations made under those acts: Marine Parks Act 1997; National Parks and Wildlife Act 1974; Threatened Species Conservation Act 1995; Wilderness Act 1987 (together National Parks Legislation).They are also appointed to exercise all the powers of an impounding officer under the Impounding Act 1993 and Regulation and to exercise the functions of a class 2 enforcement officer as prescribed by the Protection of the Environment (General) Regulation. Investigation into possible breaches of the LHI Act and LHI Regulation and National Parks Legislation are an important function of the Board. The importance of this function is emphasised when taking into account the context in which it is exercised, that is the unique World Heritage Listed natural environment of Lord Howe Island. Information provided to the Board by members of the public is an important source of intelligence that is utilised by the Board in undertaking these functions. Lord Howe Island has a very small residential population (approximately 350 people). Generally members of the public, who provide information about possible breaches of the LHI Act and Regulation or possible breaches of National Parks legislation, do so with the expectation that it will be kept confidential and that their name will not be revealed. If such information is released to an applicant under the GIPA Act then it is expected that members of the Lord Howe Island community would be reluctant to provide the Board with such information and accordingly disclosure could reasonably be expected to have a substantial adverse effect on the effective performance of the Board of its functions. Similarly release of the information would prejudice the Board's deliberative processes as staff would feel constrained from writing down their advice if they felt that it would be released for public scrutiny. This would have a significant adverse impact by inhibiting staff in the conduct of investigations into alleged breaches of the LHI Act and LHI Regulation. It is important that officers should be able to write down their advice or deliberations regarding possible courses of actions when considering the most appropriate action to take in relation to alleged breaches of the LHI Act or Regulation or possible breaches of National Parks legislation. If such information is released officers would feel constrained to write such advice down which would have an adverse impact on the effective operations of the Board. Particularly it may compromise the integrity of investigations being undertaken by the Board. Release of evidence could reveal to one witness the evidence of another and so expose the evidence to challenge, and release of a possible course of action may compromise the investigation by enabling it to be subverted. In regard to the information referred to in paragraph 3.1.3.2 above, as advised in the notice of determination dated 23 June 2016, I have applied the public interest test in relation to the information in question and, on balance, I have determined that the public interest considerations against disclosure outweigh the public interest considerations in favour of release. Section 14(1) of the Act provides that there is an overriding public interest against disclosure of any of the government information described in schedule 1. Of relevance to the information in question is clause 5 of schedule 1 which provides that 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 privilege exists has waived the privilege. The information in question comprises briefs of evidence, witness statements, correspondence and legal advice that was prepared for the dominant purpose of obtaining legal advice for the Board and providing legal advice to the Board. I am satisfied that the information in question comprises information that would be privileged from production in legal proceedings on the ground of client legal privilege. The Board does not wish to waive that privilege. In regard to the information referred to in paragraph 3.1.4.1 above, I have applied the public interest test in relation to the information that has been redacted from the documents in question and, on balance, I have determined that the public interest considerations against disclosure outweigh the public interest considerations in favour of release. Section 14 of the Act sets out the public interest considerations against disclosure. Section 14(2) provides that the public interest considerations listed in the Table to section 14 are public interest considerations that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest consideration against disclosure of government information. Of relevance to the information in question is item 3(e) of the Table namely, that the disclosure of the information could reveal false or unsubstantiated allegations about a person that are defamatory. I am satisfied that the information in question could be defamatory as it could be considered to be disparaging and potentially injure a person's reputation. Accordingly I have determined that the public interest considerations against disclosure outweigh the public interest considerations in favour of release. In regard to the information referred to in paragraph 3.1.4.2 above, I have applied the public interest test in relation to the information that has been redacted from the document in question and, on balance, I have determined that the public interest considerations against disclosure outweigh the public interest considerations in favour of release. Section 14 of the Act sets out the public interest considerations against disclosure. Section 14(2) provides that the public interest considerations listed in the Table to section 14 are public interest considerations that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest consideration against disclosure of government information. Of relevance to the information in question is item 3(a) of the Table namely, that the disclosure of the information could reveal an individual's personal information. I am satisfied that the information in question is an individual's personal information and as such the public interest considerations against disclosure outweigh the public interest considerations in favour of release.

[3]

Mr Bower's evidence

Mr Bower is the Board's Manager Environment/World Heritage. He reports to the Office of Environment and Heritage ("OEH") located in Sydney. He is authorised to issue and serve penalty notices if it appears that a person has committed a prescribed offence against the Lord Howe Island Act 1953 ("the LHI Act") or the Lord Howe Island Regulation 2014 ("the LHI Regulations").
He is also authorised under the Protection of the Environment Operations Act 1997 for the purpose of the Marine Estate Management Act 2014, National Parks and Wildlife Act 1974, Threatened Species Conservation Act 1995 and the Wilderness Act 1987. He is authorised to determine whether there has been compliance with or contravention of national parks legislation; obtain information or records for purposes connected with the administration of national parks legislation; and generally administer national parks legislation.
He undertakes investigations into possible breaches of the LHI Act and/or national parks legislation. As part of the conduct of those investigations he speaks to witnesses, records statements, and gathers evidence. He and other authorised staff may take photographs or video footage of evidence.
Photographs that are relevant to active investigations are stored on the Board's secure shared computer drives or on an external hard drive. His evidence is that Mr Curtin has been given the photographs that are relevant to this application.
Mr Bower has requested that some records that are within the scope of Mr Curtin's access application not be released. He is of the opinion that if that information were released outside of the Board and the OEH it would inhibit the proper exercise of investigations.
He stated that in an investigation decisions have to be made regarding the information received. At times, information received has to be communicated to others so that lines of further inquiry can be ruled in and out. Sometimes he may need to take advice on aspects of the information. He routinely communicates formally and informally, orally and via email with his colleagues regarding the conduct of an investigation. Due to his remote location he usually communicates via email. An email may include information about investigation steps under consideration, opinions on the veracity of evidence and conclusions reached about a matter.
He stated that information is sometimes provided informally by other staff members or members of the public. There is an expectation that the information will be kept confidential. Not all of this material can be acted upon. Sometimes it is necessary to follow lines of inquiry. Sometimes, records are created and retained even if the material is not subsequently the subject of a prosecution action. The release of information relating to the conduct of an investigation could hamper future investigations.
Mr Bower stated that he would be extremely reluctant to reduce information that he receives to writing if the investigation material is to be released. It would likely change his working practices in relation to investigations. He also stated that he would expect that his colleagues would also change their working practices. If the practices of the investigations team altered then this would also hamper the Board's deliberative processes.
He believes that the release of information regarding investigations could compromise and prejudice current and future investigations by revealing evidence and possibly alerting suspects. Matters which would be best kept confidential until such time as the material can be acted upon would become public knowledge prejudicing the due administration of the legislation that applies to the Island. He also believes that the release could compromise the integrity of evidence by revealing evidence of one witness to another.
He also believes that people on the Island and the mainland would be reluctant to provide information in the future if investigation material is released. Lord Howe Island is a very small community. Consequently, it is usually possible to identify the source of information from the facts related and the circumstances in which the record came to be created even when personal information is redacted.
Mr Bower stated that the records identified as documents numbered 19, 28, 30, 33, 34, 41, 41 A, 47 - 55 inclusive, 57, 58, 79 - 84 inclusive, 86 - 88 inclusive, 90, 91, 92 (in part), 95 to 99 inclusive in the schedule to the Notice of Determination for this application are communications, reports, briefs of evidence, witness statements and legal advice that have come into existence for the dominant purpose of obtaining legal advice.

[4]

Ms Holloway's evidence

Ms Holloway provided two affidavits and also gave evidence at the hearing.
As noted above, Ms Holloway re-determined the access application. She gave evidence in regard to the approach that she took in that re-determination. She interpreted the request to include any records held by the Board relating to complaints, allegations or grievances about Mr Curtin and investigations relating to him or his property.
She excluded records relating to the negotiation of conditions of development applications that she did not consider to be related to complaints, grievances or investigations. She also excluded records relating to entries made by employees of the Board onto the Applicant's property at the request of the leaseholders.
She limited her searches to those records that came into existence after the last of Mr Curtin's applications to the Board for access to records on 29 September 2008 and prior to 15 February 2016 - the date that the Board received the access application. She noted that Mr Curtin disputed that the scope of the access application should be time limited in this way.
Ms Holloway provided copies of correspondence between the parties relating to the access application. She notes that Mr Curtin provided some documents as examples of information that he believes fall within the scope of the application- for example publications and minutes of meetings. She stated that she does not regard those types of information as within the scope of the access application as they do not constitute a complaint, grievance, investigations, or allegation about Mr Curtin or his property.
Ms Holloway outlined the searches that she directed to be undertaken of the Board's records. These included searches of the Board's paper files, electronic records, central logs, individual staff members' emails, and hand written notes of individual staff members. Key staff members were also interviewed.
She noted that in the course of the searches it became apparent that some of the Board's video records that were stored on an external computer hard drive have been lost due to a computer malfunction. The Board sent the computer hard drive to an expert to see if it was possible for those records to be retrieved. No relevant records were recovered from that process.

[5]

Mr Curtin's evidence

Mr Curtin lodged his access application after receiving notice from the Board of an investigation that it had conducted into allegations that he had breached the LHI Regulations by mowing native vegetation ("the mowing incident"). He is concerned about the powers of the Board and the administration of the LHI Regulations. He contends that the Regulations are in large part unmanageable and the Board's targeted attempts to administer the Regulations results in the waste of public funds. He expressed concern in regard to the Board's practice in determining matters without regard for the principles of natural justice and procedural fairness.
In regard to the scope of his access application Mr Curtin indicated that the information that he is seeking in regard to the mowing incident would include the entire contents of the Board's File and associated records including:

the 'written complaint to the Board';
records of the 'investigation' conducted by the Board;
any supporting information or justification for the Board's position that 'a defence to this offence is not available';
any record of a Board member's direction to the Board's staff to prosecute this issue;
Mr Curtin's correspondence with the Board on this specific legal issue;
any other relevant records documents and correspondence, including photographic and video records and published material referring to the matter.

In correspondence between Mr Curtin and Ms Spivey, Mr Curtin expressed the view that there must be a register of complaints and grievances and also that there should be a register of approvals for entry onto perpetual leases that is 'compliant with LHIB Procedure for Access to Leasehold Land'. He asserted that this is particularly relevant when the entry of leases is pursuant to anonymous complaints and grievances to the Board.
He sought access to records for his own property in order to be able to ensure that the Board is complying with its own policies, and is acting in compliance with its legal powers. His access application is to assess whether the Board is compliant with its obligation to 'keep full and accurate records of its activities' in relation to the lease over a relatively short period of time. He also wishes to shine a light on the Board's public administration - to assess whether the Board is compliant with its obligation to ensure that, in the exercise of its 'regulatory powers, authorities, duties and functions, it acts consistently and without bias'.

[10]

Clause 5 of Schedule 1 to the GIPA Act

The Board also contends that some of the withheld information falls within the criteria of Clause 5 of Schedule 1 to the GIPA Act and it is to be conclusively presumed that there is an overriding public interest against disclosure of that information.
The Board has withheld a significant amount of information on the basis that the information would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege). The Board asserts this claim in relation to the records identified as documents numbered 19, 28, 30, 33, 34, 41, 41 A, 47 - 55 inclusive, 57, 58, 79 - 84 inclusive, 86 - 88 inclusive, 90, 91, 92 (in part), 95 to 99 inclusive in the schedule to the Notice of Determination. The Board asserts that these documents are communications, reports, briefs of evidence, witness statements and legal advice that have come into existence for the dominant purpose of obtaining legal advice
This claim is to be assessed by applying the provisions concerning client legal privilege under the Evidence Act 1995: see AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at paragraph [20].
Clause 5 of Schedule 1 to the GIPA Act provides: 5 Legal professional privilege (1) 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. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
Section 118 of the Evidence Act 1995 provides: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) 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. "
The term "client" is defined in section 117(1) of the Evidence Act to include: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, ...
The term "confidential communication" is defined to mean: a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) 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.
The onus is on the Board to establish its claim. Senior Member Lucy discussed the necessary evidence to establish a claim under Clause 5 of Schedule 1 to the GIPA Act in her decision in CCB v Department of Education and Communities [2015] NSWCATAD 145 from paragraph [70]: "70. The respondent has not addressed the application of s 118 of the Evidence Act, or the definitions applying to that provision, in any detail in its submissions. Other than the information provided in its submissions, the respondent has not provided any evidence or other factual material to establish its claim of client legal privilege. 71. There is a question of whether the respondent needs to establish that the advice of the in-house lawyer was independent in order to succeed in its privilege claim. 72. At common law, legal professional privilege attaches to advice from an in-house lawyer only if it can be shown that the in-house lawyer is independent. There must be demonstrated a "professional relationship which secures to the advice an independent character notwithstanding the employment" (Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, Mason and Wilson JJ at 62). 73. Section 118 of the Evidence Act does not, on its face, require a client to establish that the client's lawyer was independent. There is no requirement to consider the lawyer's independence when determining whether he or she is a "lawyer" or whether the recipient of the advice is his or her "client." A government lawyer who is an "Australian lawyer" is a lawyer, and the lawyer's employer (being the State) is a client, by operation of s 117 of the Evidence Act. 74. It is then necessary to consider whether all the elements of s 118 apply to an in-house government lawyer where there is no evidence of the lawyer's independence. In Commonwealth v Vance [2005] ACTCA 35; (2006) 158 ACTR 47, Gray, Connolly and Tamberlin JJ commented in the context of considering the application of advice privilege under the Evidence Act 1995 (Cth) that, where a "lawyer is employed, real questions as to the nature of their role and duty may arise" (at [25]). Their Honours said at [24]: "where client legal privilege is claimed over documents produced by an in-house lawyer, particularly when that in-house lawyer is employed in government service, the question is whether the document would meet the statutory test of being a confidential document, that is to say, was it prepared in such circumstances that the person who prepared it was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law." 75. Thus, without evidence of a government lawyer's independence, it may not be possible to find that the document or communication was a "confidential document" or "confidential communication" within s 118 of the Evidence Act. It is also possible that, if it is not established that a lawyer has the requisite independence, the advice would not properly be described as "legal advice." Other cases supporting the proposition that it is necessary to show that an in-house lawyer is independent include Banksia Mortgages Ltd v Croker [2010] NSWSC 535, Schmidt J at [19]-[26]; Rilstone v BP Australia Pty Ltd [2007] FCA 1557, Besanko J; Re Philip Morris Limited and Prime Minister [2011] AATA 556, Forgie DP esp at [98]-[100]; and Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10 at [83]. 76. There was no evidence in this case as to the independence of otherwise of the principal legal officer concerned. The respondent has an onus to establish that its decision not to provide access to the information over which it claims privilege is justified. It is not open to me to infer that the legal officer was independent without evidence to that effect (Vance v McCormack (2004) 154 ACTR 12, Crispin J at 25-26). 77. Without evidence as to the principal legal officer's independence, or as to the confidentiality of the communication in question, I cannot be satisfied that the communication was made in such circumstances that, when it was made the principal legal officer "was under an express or implied obligation not to disclose its contents." Nor can I be satisfied, in the absence of evidence, that the school principal was under such an obligation. 78. If I am wrong and the communication recorded in the principal's diary was a confidential communication, the respondent has not persuaded me that it was made for the dominant purpose of providing legal advice to the client (being the State). Legal advice is a relatively broad concept: see Law v Wollondilly Shire Council [2013] NSWADT 203 at [83]. The respondent submitted that an inference should be drawn that the communication was made for the dominant purpose of providing legal advice. In my view, such an inference cannot properly be drawn from the words in question. 79. The respondent has not discharged its onus of establishing that the information would be privileged from production in legal proceedings on the ground of client legal privilege and that there is therefore a conclusive presumption of an overriding public interest against disclosure of it pursuant to s 14(1) of and cl 5(1) of Sch 1 to the GIPA Act. 80. Accordingly, I set aside its decision refusing access to that information and substitute a decision to provide access to the information.
If the agency's privilege is established, the agency is also required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of Clause 5 of Schedule 1 to the GIPA Act. Ms Holloway has stated that the Board does not wish to waive privilege.
In Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group PLC (No 2) [2013] FCA 1098 ("Archer Capital 4A Pty Ltd") Wigney J stated at paragraphs [10] - [15]: 10. A communication or document will be privileged if it was made or brought into existence for the dominant purpose of obtaining or providing legal advice (the advice limb), or to conduct or aid in the conduct of litigation in reasonable prospect (the litigation limb): Esso at [35], [61]; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9]. ... 11. A dominant purpose is a reference to "the ruling, prevailing, or most influential purpose": Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (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] FCA 571; (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] FCAFC 122; (2004) 136 FCR 357 (Pratt) at [35]. 12. The concept of legal advice in the context of the advice limb is fairly broad. It goes beyond formal advice as to the law, and extends to professional advice as to what a party should prudently or sensibly do in a relevant legal context, but does not extend to advice that is purely factual or commercial: Balabel v Air India (1988) Ch 317 at 323, 330 (Balabel); DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151 (DSE) at [45]; AWB at [100]. 13. The party claiming privilege bears the onus of proving that the communication was made, or the document created, for the dominant purpose of giving or obtaining legal advice or aiding in the conduct of litigation or prospective litigation. It is not sufficient for a party to merely assert a claim for privilege; the party claiming privilege must establish the facts that provide the basis for the claim: National Crime Authority v S (1991) 29 FCR 203 at 211; Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 (Kennedy) at [13]-[17]. The existence of privilege is not established by mere verbal formula, even if unchallenged: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 (Grant) at 689. 14. It may be necessary for there to be evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed: Kennedy at [12]-[17]. The Court has the power to examine documents in respect of which a claim is made, and should not hesitate to exercise that power where the claim is challenged: Grant at 689. 15. The relevant principles in relation to privilege in respect of communications to or from a third party, privilege under the advice limb where the relevant lawyer is an "in-house" lawyer and waiver are addressed later in the specific context of the three categories of communications subject to challenge.
The burden is on the Board to establish a lawyer-client relationship, that the communication was confidential and the dominant purpose of the communication. In AIN v Medical Council of New South Wales [2015] NSWCATAP 241. The Appeal Panel stated at paragraph [25]: 25. … the Tribunal can only make findings of fact on the basis of evidence or, more broadly, on the basis of the "relevant factual material" before it (Administrative Decisions Review Act 1997 (NSW), s 63(1)). Where an agency claims that certain information would be privileged from production in legal proceedings on the ground of client legal privilege, it has the onus of establishing this (see GIPA Act, s 105 and Sch 1, cl 5). This means it is required to establish the factual matters necessary to found a claim under s 118 or s 119 of the Evidence Act, including that relevant persons are a client and a lawyer, that a document or communication is confidential and that the dominant purpose for which a communication was made or a document was prepared is one contemplated by the provision relied upon. Whilst some of these matters can, in some cases, be found in or inferred from the document the subject of the privilege claim, it is almost always necessary to provide some evidence relevant to the privilege claim before it can be concluded that s 118 or s 119 applies. It is not uncommon in GIPA Act proceedings for an agency to underestimate the need for evidence to establish privilege. That occurred, to some extent, in this case.
The evidence in relation to the advice is that given by Ms Holloway. She stated: In relation to the documents that the Board has claimed legal privilege over I say that the Board relies on legal advice from the Office of Environment and Heritage (OEH) in relation to matters under investigation concerning breaches of legislation administered by OEH. The documents in the bundle are documents that came into existence for the purpose of investigating breaches of such legislation. To further OEH's consideration of the matters in relation to the taking of legal action the material was referred to OEH for advice which was transmitted to the Board. Since 2013 legal responsibility for the Board has been transferred by the NSW Government to the Office of Local Government (OLG). In relation to matters of administration the Board has since 2013 taken legal advice from OLG in relation to matters concerning the administration of the Island. The documents in the bundle relating to advice from OLG came into existence for the purpose of obtaining legal advice.
Mr Bower stated: It is routine for me to consult both formally and informally with my peers in OEH regarding the conduct of an investigation to seek opinions regarding process and technical matters including the applicable legal provisions relevant to an investigation. Due to my remote location I usually communicate via the email. … I also understand that in the searches for records responding to Mr Curtin's GIPA application certain records have been identified being the documents numbered 19, 28, 30, 33, 34, 41, 41 A, 47 - 55 inclusive, 57, 58, 79 - 84 inclusive, 86 - 88 inclusive, 90, 91, 92 (in part), 95 to 99 inclusive in the schedule to the Notice of Determination for this application. These documents are comprised of communications, reports, briefs of evidence, witness statements and legal advice that have come into existence for the dominant purpose of obtaining legal advice.
Clearly, Ms Holloway has asserted that the communication was produced for the dominant purpose of providing legal advice. However, her evidence does not identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed. Nor does it address the confidentiality of the advice or who produced it.
It is clear from Mr Bower's evidence that he shares information with other officers. It is not clear whether this sharing extends to information over which legal privilege is claimed and whether or not any confidential communications have been shared. If that has been the case, the extent to which the communications have been shared is unclear. He has asserted that a number of the withheld communications were produced for the dominant purpose of providing legal advice. However, his evidence does not identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed. Nor does it address the confidentiality of the advice or who produced it.
As was noted in Archer Capital 4A Pty Ltd, it is not sufficient for a party to merely assert a claim for privilege; the party claiming privilege must establish the facts that provide the basis for the claim. The Board's evidence does not meet this requirement.
Several of the withheld documents appear to have originated from an individual who is identified as a Legal Officer. These documents appear on their face to be in the nature of legal advice however I have no basis on which I can determine whether the author holds a practising certificate as a legal practitioner or whether the necessary client and lawyer relationship or the necessary confidentiality of the communications existed.
In the case of some documents it appears that the document has been copied to numerous people. This raises doubt in regard to the issue of the confidentiality of the communication. There is no evidence in regard to the relationship with the recipients of the communications or the circumstances in which they have received the communication or whether it was treated confidentially. I am unable to infer otherwise from the face of the documents.
I am unable to infer from the available evidence that the necessary requirements are met in this case. Accordingly I am not persuaded that the conclusive presumption in Clause 5 of Schedule 1 to the GIPA Act is established.

[11]

Clause 1(d) of the table to section 14

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. The Board contends that this applies to the withheld documents identified in the schedule to the redetermination as documents numbered 26, 28, 33, 34, 36, 56, 58, and 59.
In Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 Deputy President Higgins considered a number of the public interest considerations against disclosure and decisions that had dealt with the applicable factors in that case. In regard to Clause 1(d) of the Table to section 14 she stated: 63. Clause 1(d) prejudice supply of confidential information In Camilleri at [27] to [33], the Appeal Panel considered the operation of the public interest consideration against disclosure in cl 1(d) of the table of subs 14(2) of the GIPA Act and said the following: 27 The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). ... 28 In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said: 58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872: `The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...' 29 This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. ... 30 ... 31 In this case the Tribunal was required to form an opinion on whether disclosure of the information could reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (cl 1(d)); or, ... 32 ... 33 In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. ... 64. As outlined above, for the cl 1(d) public interest consideration to apply, the information in issue must not only be 'confidential information', it must also be information that facilitates the effective exercise of that agency's functions. 65. The Tribunal has accepted that the word 'prejudice', in the context of the public interest considerations against disclosure, is to be given its ordinary meaning, namely: 'to cause detriment or disadvantage': see Hurst (supra) at [60], McLennan v University of New England [2013] NSWADT 113 at [38] and Sobh v Victoria Police (1993) 1 VR 41.
It is not necessary that the decision-maker be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.
In this matter, the Board relies on the opinions expressed by Mr Bower in regard to the consequences that could reasonably be expected if the withheld information is disclosed. However, while Mr Bower's experience is not in doubt, he is not an independent witness and should not be treated as such. This has implications for the weight that can be given to Mr Bower's opinions.
In my recent decision in Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71 I commented at some length on the need for caution in regard to the weight to be given to opinions. By their nature the opinions are speculative in that future predictions are necessarily involved. The experience of the witnesses who expressed the relevant opinions is a significance factor. Greater weight will be given to the opinions of witnesses with significant experience that is both historical and current and where the witness is able to speak as both giver and receiver of the type of information under consideration.
Mr Bower has direct knowledge of how complaints are handled and investigated. There is no basis on which that evidence should not be accepted. He expressed concern about how the release of the withheld information could result in a need to change the way investigations are carried out. However, he has not provided evidence to explain why that change would not be a positive change. His assumption is the officers of the Board would respond by conducting their investigations in a less transparent manner but it is not clear why a positive response would not be possible.
Mr Curtin's concern is that in a small community the secrecy involved in the existing procedures encourages domestic disputes and that not all complaints are legitimate. He argues that more transparency would discourage malicious and frivolous complaints it would promote accountability within the Board. There seems to be merit in that argument.
This view is consistent with those expressed by Deputy President Hennessy in Thompson & Ardill v The Lord Howe Island Board [2003] NSWADT 193. Thompson & Ardill concerned an application to the Administrative Decisions Tribunal under the now repealed Freedom of Information Act 1989. Deputy President Hennessy dealt with a request to the Board for access to records of a meeting between two Lord Howe Island residents and officers of the Board. The recording dealt with objections to a development application and contained information provided in confidence. In determining that the record should be released Deputy President noted: 31 However disclosure would serve the public interest purposes of the legislation because it would promote transparency of the agency's processes and accountability for their decision-making. A policy of "open access" to objections to development applications discourages the lodging of submissions in bad faith or the making of malicious or gratuitous comments about the person seeking approval. To the extent that the recording contains complaints about Mr Prout's behaviour, it is in the public interest that he be made aware of the substance of those complaints, even if they are not new.
I agree with Mr Bower's opinion that disclosure of the withheld information could reasonably be expected prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. However, I note that some of the information was provided by officers of the agency and that it is probably that those officers would continue to provide information of this kind.
I am generally satisfied that this public interest consideration against disclosure is established. It should be given reasonable weight. However, in the circumstances this needs to be weighed against the factors in favour of release of the information.

[16]

Clause 3(a) of the table to section 14

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. The Board contends that this applies to the withheld information in document 46.
The term 'personal information' is defined in Clause 4 of Schedule 4 of the GIPA Act as: 4 Personal information (1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
I accept that document 46 contains the name and phone number of an individual other than Mr Curtin as well as the names of persons who appear to be either officers of the Board or others engaged in the exercise of public functions.
I am satisfied that disclosure of document 46 could reasonably be expected to reveal an individual's personal information and therefore this public interest consideration against disclosure is established. However, I would give it minimal weight insofar as it concerns the identity of officers of the Board. Greater weight should be given to the information of the other individual.
I note that the cover page to document 28 contains personal information of a witness including date of birth and home contact details. This is apparent from the face of the document however the Board has not asserted that clause 3(a) applies to that document. Nevertheless, it is my view that the Board should reconsider its determination in regard to that document.

[18]

The weighing process

The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise is a question of fact and degree, requiring the weighing of competing matters.
Section 12 of the GIPA Act sets out examples of general public interest consideration in favour of disclosing government information. I have set out above a number of factors that I consider are relevant in this matter.
Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure.
The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act. In the circumstances of this matter I have found that the considerations in clause 5 of schedule 1 do not apply. Therefore, the public interest considerations against disclosure listed in the Table to section 14 are the only considerations that may be taken into account.
The identified considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the asserted effect. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure. Therefore, the requested information must be released unless there is an overriding public interest against disclosure.
I have noted above my view regarding the need for caution when considering opinions as to possible outcomes from the release of information. In this matter, for the most part, I have not accepted Mr Bower's evidence as sufficient to establish that disclosure of the withheld information could reasonably be expected to have the identified outcome.
In any event, the mere fact that disclosure of the withheld information could reasonably be expected to lead to the identified outcome is not sufficient to allow the consideration against disclosure to override the presumption in favour of disclosure. It is necessary to determine what weight should be given to the various criteria having regard to the general terms of the GIPA Act, and the presumption in favour of disclosure.
In regard to Clause 1(d) of the Table to section 14, I have expressed the view that the consideration against disclosure of the information should be given reasonable weight. In regard to other factors I expressed the view that the consideration against disclosure of the information should only be given minimal weight.
I have set out above a number of benefits that I consider could result from the disclosure of the withheld information. These are essentially related to greater transparency and accountability and discouragement of malicious or frivolous complaints.
I note that the balance is always weighted in favour of disclosure. In the circumstances of this matter, I am not satisfied that the Clause 1(d) consideration against disclosure is sufficient to override the considerations in favour of release. In my view, the benefits that might flow from disclosure of the information outweigh the considerations against disclosure that the Board has identified.
I have formed the same view in regard to all of the other asserted considerations against disclosure with the exception of Clause 3(a).
As I have noted above, I accept that document 46 contains the name and phone number of an individual other than Mr Curtin. I am not satisfied that the considerations in favour of release are such that that personal information should be released. In that regard the decision should be affirmed.
It appears that the Board may have overlooked information contained in the cover page to document 28. In regard to that information, which appears to be personal information, it is my view that the matter should be remitted for the Board for re-consideration. It is open to Mr Curtin to indicate whether he seeks the cover page information. If he does not seek the information, he should advise both the Board and the Tribunal. If he does so, there will be no need for the re-determination. If Mr Curtin wishes to pursue the matter following the redetermination, the matter will need to be listed for further case conference.

Curtin v Lord Howe Island Board

At a glance

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Judgment (21 paragraphs)

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Legislation Cited (2)

Cases Cited (29)

Cited By (2)