Curtin v Vice-Chancellor, University of New South Wales

REASONS FOR DECISION 1 This decision deals with one aspect of an application for access to documents made under the Freedom of Information Act 1989 (FOI Act). 2 The applicant is a former staff member of the University of New South Wales. (The applicant's name has not been anonymised in these reasons, at his request.) 3 He worked for many years in a business entity of the University called 'The Educational Testing Centre' (ETC) ultimately holding a senior position (Position Title: Manager Planning and Budget & Services Manager). The ETC designed examinations and schools competitions for use by clients such as State Education Departments and tertiary institutions. The ETC's operations were the subject of a management review in 2002 and 2003 by the University, leading to its restructure. The applicant actively questioned the probity and soundness of the decision-making process leading to the restructure, and in particular disputed the conduct of the General Manager of the ETC, Dr Alan Bowen-James. The ETC is a division of a company, NewSouth Global (NSG), the commercial arm of the University and a controlled entity of the University. The restructure of the ETC proceeded, and, after some consideration, the applicant decided to accept a termination package. 4 He made some complaints in a manner and form intended to obtain the benefit of the protected disclosures legislation (the Protected Disclosures Act 1994). In pressing his claims in relation to the restructure, and his concerns over what he saw as corrupt conduct in the decision-making process, he regularly dealt with the Equity and Diversity Unit of the administration of the University. This Unit deals with issues to do with the treatment of staff and employees of the University. 5 He applied on 31 August 2004 to the University for 'the contents of the Equity and Diversity file on myself', and indicated on the relevant form that the access request was for 'personal' documents as distinct from 'non-personal documents'. 6 The applicant had asked to be allowed to work from home around January 2003 on the ground of disability. 7 In a letter accompanying the application he said: 'I am again seeking information which was withheld from me during my time of employment there [i.e. ETC] … and the E & D notes of meetings where I was subject to discussion, and notes from other sources such as phone calls. I am interested in the information going from E & D to UNSW, NSG or ETC employees and from the employees to E & D. Jude Stoddart did for example have meetings with Rob Wendon, Alan Bowen-James, Maria Ferrara and others, about a work from home application I lodged in Nov 2002. The timeframe of the request is from Nov 2002 until Nov 2003 i.e. 13 months. As E & D have files based on individuals it should be administratively straightforward.' 8 The University's FOI officer replied by determination dated 12 October 2004 and listed 113 documents in the schedule of documents belonging to the period 16 December 2002 to 5 September 2003. The response was the subject of prior consultation with the applicant, and he indicated that he did not require access to a number of the documents. Of the balance 32 were released in full. Three were withheld in full, all on the basis that the documents were governed by legal professional privilege. 9 He requested internal review by letter dated 9 November 2004. He referred in that regard to a previous FOI response from Professor Ingleson, Deputy Vice-Chancellor. He not only contested the failure to release the three documents, but also claimed that the FOI determination had not identified all documents falling within the scope of his request. He referred in particular to a letter from him dated 21 May 2003 to Jude Stoddart, Director, Equity and Diversity which had not been shown in the schedule of documents as evidence of such an omission. 10 In her internal review determination dated 18 November 2004, the responsible officer (the Executive Officer (Policy), Division of the Deputy Vice-Chancellor (Academic)) said that this letter had not been seen as relating to the request as it dealt with 'management and operational issues' relating to the ETC 'rather than particular individual issues concerning yourself'. 11 The internal review determination then referred to the three documents withheld, and the nature of those documents: 'They comprise communication between a client [Jude Stoddart as Director] and a lawyer [Carol Kirby, the University Solicitor] which is confidential in nature and brought into existence for the dominant purpose of enabling the client to obtain, and the lawyer to give, legal advice. In-house lawyers are a type of lawyer to which privilege relates for the purposes of the FOI Act.' 12 By letter dated 18 November 2004 to the University FOI officer, the applicant referred to a number of documents belonging to the period 14 September 2003 to 24 October 2003 which he said were missing from the documents referred to in the schedule of documents. 13 In his application to the Tribunal dated 24 November 2004 for review of the determination the applicant gave three reasons for his application: (i) 'information withheld clause 10 - legal professional privilege'; (ii) 'incomplete information released'; and (iii) '21 May 03 letter from the applicant withheld 'concerns management and operational issues'. 14 At the first planning meeting (15 December 2004) held by the Tribunal the University noted that it had read the applicant's request as referring to the Equity and Diversity action on his request to work from home, and had identified documents from that file. In light of correspondence between the applicant and the University during November 2004 the University now thought that he might be seeking the 'Protected Disclosures' file. 15 In any event the parties agreed that the Tribunal should proceed to determine the claim as it related to the three documents withheld on the ground of legal professional privilege. Directions for submissions were given, and at a further planning meeting on 2 March 2005, it was agreed that the decision would be made on the papers: see Administrative Decisions Tribunal Act 1997, s 76. 16 The above background has been given to minimise the need for repetition in relation to any future determinations in relation to this and other applications for review lodged by the applicant in connection with his dispute with the University over its decisions relating to the ETC and affecting him. Legal Professional Privilege 17 Under the FOI Act an agency is entitled to treat a document as exempt 'if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege'. As to the scope of application of legal professional privilege under Australian law see the Evidence Act 1995 and Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49. The Tribunal has dealt in numerous decisions with the question of kind of material protected from release by the privilege, and the public policy justifications for the protection; see recently, Law Society of New South Wales v General Manager, Workcover Authority of New South Wales [2004] NSWADTAP 40. 18 In particular, legal professional privilege can be invoked by a client in respect of confidential communications made by or to a legal adviser if they were made for the dominant purpose of obtaining or giving legal advice or for use in legal proceedings. 19 In this instance the Tribunal has scrutinised the three documents in issue. The FOI Act directs the Tribunal to ensure that in giving its reasons for determination it does not disclose any exempt matter: s 55. Consequently the reasons which follow are constrained. The documents in issue are Documents 4, 5 and 6 in the Schedule of Documents. 20 Document 4 bearing date 16 January 2003. This is a request for advice from the Director, Equity and Diversity. The Director sought advice on the contents of a draft reply to the applicant relating to his request for approval to work from home. The Tribunal is satisfied that this document is covered by legal professional privilege. Clearly the advice was being sought from the University Solicitor in her professional capacity in relation to an application from a member of staff (the applicant's application to work from home) that had to be resolved lawfully; and in accordance in particular with laws that seek to protect the rights of those who may have disabilities. 21 Document 5 bearing date 15 January 2003 but clearly later in time than Document 4. This document is a reply to Document 4 and included the applicant's communication giving rise to the draft reply. Clearly this communication forms part of the advice relationship and is protected. 22 Document 6 bearing date 16 January 2003. This is the detailed advice furnished by the University Solicitor. It consists of legal advice. 23 In his submissions to the Tribunal filed 7 February 2005 replying to the University's submissions, the applicant said that he asked the Director, Equity and Diversity in December 2002 for assistance as to the practices and procedures for resolution of the dispute he had with the General Manager of the ETC, Dr Bowen-James. He asserted that without his knowledge, Ms Stoddart passed on confidential information to the University Solicitor (Carol Kirby) 'seeking advice on the alleged misconduct of Dr Bowen-James'. He referred to the letter he had sent to Ms Stoddart, and claimed if there was a lawyer-client relationship the relationship was not between Ms Stoddart and Ms Kirby but between him and Ms Kirby. 24 It is plain that Ms Kirby was engaged in advising Ms Stoddart. It is perfectly conventional for in-house solicitors to advise the management of the organization for which they work in connection with potentially contentious dealings that may give rise to legal liabilities for the organisation, whether they concern persons internal to the organization such as employees or persons external to the organization such as contractors. The University Solicitor was acting in that capacity; her advice had the necessary quality of professional independence (see, e.g. Southern Equities Corporation (in liquidation) v Arthur Andersen & Co (No 6) [2001] SASC 398) including a reporting line independent of the general business of the University to the Deputy Vice-Chancellor (Academic). The Director, Equity and Diversity, though working within the one overall organisation, was dealing with the University Solicitor on an appropriate client-lawyer basis. There is no substance to the applicant's submission as to the nature of the lawyer-client relationship. 25 The agency's determination as it relates to Documents 4, 5 and 6 is satisfactory. Order 1. Respondent's determination that Documents 4, 5 and 6 exempt on the basis of legal professional privilege affirmed. 2. Application to be relisted for further planning meeting.