Ganley v Northern Sydney Central Coast Area Health Service

Personal affairs 9 The Applicant submitted that much of the material contained in the Kilkeary Report was material relating to her personal affairs. The Applicant also sought to rely upon provisions of the Privacy and Personal Information Protection Act 1998 (PPIP Act). The Tribunal does not have jurisdiction to review the Respondent's conduct under the PPIP Act, in the absence of an application made under the PPIP Act. Section 55 of the PPIP Act gives the Tribunal power to review the agency's conduct where the complainant is dissatisfied with the findings of an internal review or the action taken by the agency in relation to the application for review under the PPIP Act. The present application relates only to the Applicant's FOI application. 10 Accordingly, I consider only the personal affairs exemption in Schedule 1 of the FOI Act. Clause 6 provides: 6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made. 11 The term "personal affairs" is not defined in the FOI Act but in its context it has been held to mean "the composite collection of activities personal to the individual concerned": Commissioner of Police v District Court of New South Wales (Perrin's case) (1993) 31 NSWLR 606 per Kirby P at 625. In Perrin's case at p 625 Kirby P (as he then was) decided that the disclosure of the names of police officers and employees involved in the preparation of reports as part of their official duties within the NSW Police, was not information concerning the "personal affairs" of those officers and employees. Rather it related to the affairs of the Department. 12 In Chief Executive Officer, State Rail Authority v Woods [2003] NSWADTAP 25, the Appeal Panel decided at [26] that where a document deals with the conduct or performance of an employee as part of the exercise of management responsibilities, the document does not concern the "personal affairs" of the author. The Panel distinguished the situation where an employee complains to management about the conduct of another employee. In that case the complaint would concern the "personal affairs" of the complainant. In TW v TX [2005] NSWADT 262, the Tribunal said at [19]: This means that if an employee is complaining in their personal capacity about the conduct of another employee, the information will generally concern the complainant's personal affairs. On the other hand, if a supervisor, manager or investigator produces a document in the course of exercising supervisory, management or investigation responsibilities, the information in that document, so far as it relates to them, will not generally concern their personal affairs. 13 In TW v TX the Tribunal distinguished between information given by supervisory staff as part of their work duties and information that was given in their personal capacities, relating to an investigation into bullying, intimidation and poor work performance. 14 Similarly in P v Greater Western Area Health Service [2007] NSWADTAP 57 at [22], the Appeal Panel held that information provided by an agency's employee for the purpose of possible disciplinary action may concern the personal affairs of the employee making the statement. 15 In the present case, the Kilkeary Report contains the "personal affairs" of the Applicant, that is, information provided by the Applicant for the purpose of the investigation and report: P v Greater Western Area Health Service. The Applicant also contended that the Kilkeary Report contains personal affairs about other employees of the AHS. It should also be noted that the Kilkeary Report contains personal information about the third party, who is the access applicant in the present case. In Callejo and Dept of Immigration and Citizenship, Re (2010) 51 AAR 308; [2010] AATA 244, Deputy President Forgie discussed the difficulties involved in interpreting section 41(2) of the Commonwealth Freedom of Information Act (the parallel provision to clause 6) when the document contains personal affairs about more than one person. She referred to the complexity involved where the personal information takes the form of an opinion expressed about a person or a recounting of activities in which a person has been involved, the expression of the opinion or the recounting of the activities may be regarded as personal information about both the person recounting and the person who is the object of the recounting: at [68]. Forgie DP then said (footnotes omitted): [68] … It may be that the personal information about each person can be separated. At times, however, shared circumstances may mean that personal information about one is necessarily personal information about the other. In those circumstances, it may not be possible to separate the two. [69] In Re Anderson and Australian Federal Police 84. (Anderson) Deputy President Hall considered a decision made by the Australian Federal Police (AFP) following Mr Anderson's request for access and documents related to him. Mr Anderson had become a member of the Ananada Marga and argued that anything that related to that organisation or its members related to him as well. Deputy President Hall rejected his argument but recognised that Mr Anderson's personal affairs might be inextricably interwoven with the personal affairs of others, including other members of the Ananda Marga. He gave particular attention to the way in which the personal affairs might be unravelled and when disclosure was unreasonable. [70] As to the unravelling, Deputy President Hall formulated a test to assist him in deciding whether information relating to one person can be information relating to another. He said: Where information involving the applicant and another person or persons is interwoven, the test that I have applied in deciding whether the information relating to the third party can also fairly be described as information relating to the applicant is to ask whether the quality or completeness of the information relating to the applicant is diminished or impaired by deleting the reference to the third party's affairs. If it is not diminished or impaired, the probabilities are that the information with respect to the third party does not also relate to the applicant. A claim of exemption under section 41(1) may then need to be considered."85. [71] Deputy President Hall had already referred to the difficulties in interpreting ss 41(1) and (2) saying: As a matter of logic, this loop back to section 41(1) creates difficulties. However, it is my view that in deciding what constitutes the 'personal affairs' of the person seeking access it is appropriate to have regard to the extent to which the applicant's affairs are inextricably interwoven with the affairs of other persons. There will be circumstances where disclosure of the third party's affairs as part of the applicant's affairs may well involve an 'unreasonable disclosure' within the meaning of section 41(1). In such a case, a claim of exemption under section 41(1) is appropriately mounted. However, where it is clear that, by reason of the relationship or interaction between the parties, the information is such that it would in any event be known to the applicant and its disclosure to the applicant as matter relating to him would not be likely to be objected to, nothing is to be achieved by mounting claims of exemption. It seems to me to be consistent with the object and purpose of the Act for such information to be disclosed. No question of invasion of privacy would be involved in those circumstances."86. [72] This passage appears to suggest that the "difficulties" created by the "loop back" to section 41(1) in section 41(2) is overcome by considering whether disclosure of the third party's personal affairs would be unreasonable. That this is indeed the suggestion is confirmed when the Deputy President goes on to consider whether disclosure to Mr Anderson of personal information relating to other persons would be an unreasonable disclosure of personal information relating to those persons. He said: Finally, the important principle to keep in mind is that, by virtue of section 41, information of such a nature that its disclosure under the Act would involve an unreasonable disclosure of the personal affairs of a person is accessible only by that person (or a person acting with his authority) exercising his personal right of access to that information. It is not accessible by a person exercising the general right of access created by section 11 (see also the discussion in I and EA [Re Anderson and Department of Immigration and Ethnic Affairs (1986) 11 ALN N233]. Thus, in the present case, I do not believe that it could be said to involve the unreasonable disclosure of the personal affairs of Messrs Alister and Dunn to disclose to Mr Anderson a document relating to his own affairs which also reveals that those two men were charged and convicted, jointly with Mr Anderson, of conspiracy to murder. Equally, in my view, it cannot constitute unreasonable disclosure of the personal affairs of a third person to disclose to Mr Anderson a document recording what Mr Anderson said about a third person or recording what was said to the third person in the presence of Mr Anderson. On the other hand, it is, prima facie, an unreasonable disclosure of the personal affairs of a person for the police to disclose a document recording criminal charges and convictions against that person to anyone other than the person concerned. Indeed, the release of any information with respect to persons recorded on police files could be potentially embarrassing or damaging to those persons: see Kahn and Australian Federal Police (1985) 7 ALN N 190; cf Re Hall and Australian Federal Police (unreported, No V85/3, 30 January 1986). The more prejudicial the information, the greater the likelihood that its disclosure would be unreasonable. In some cases the mere fact that the information emanates from police files may carry an implication that the person has come under unfavourable police attention. Information of this sort is not information that, in normal circumstances a person would be content to have released to anyone who may seek it … "87. [73] Mr Horan urged me to adopt Deputy President Hall's interpretation and to set aside my own in McKinnon and Powell v Department of Immigration and Ethnic Affairs88. (McKinnon and Powell). In that case, I adopted Deputy President Hall's test in deciding whether personal information relating to a third party can also fairly be described as personal information relating to the person requesting access. Mr Powell had asked the Department of Immigration and Ethnic Affairs (DIEA) for access to certain documents. His wife, Mrs Powell, and Mrs McKinnon sought review of DIEA's decision to grant him access to letters that each of them had written notifying that they had withdrawn their sponsorship of Mr Powell in his application for a visa to enter Australia. [74] I found that the removal of the telephone numbers of Mrs McKinnon and Mrs Powell from the letters did not detract from the personal information relating to Mr Powell. Otherwise, much of the personal information about Mr and Mrs Powell was inextricably interwoven and related to their lives together. I concluded: It is only in relation to the general comments of Mrs McKinnon and of their addresses and telephone numbers that I must consider whether disclosure would be unreasonable. The remaining information concerns the personal affairs of both Mrs Powell and Mr Powell whether that information is in Mrs Powell's letters or in Mrs McKinnon's As the personal information cannot be separated and as the effect of section 41(2) is that a claim for exemption cannot be successful in relation to a document containing personal information about Mr Powell, the documents cannot be exempt under section 41 in relation to that information. The effect of section 41(2) is that it is not appropriate to consider whether disclosure to Mr Powell of personal information about himself would be unreasonable."89. [75] My approach to section 41(2) in McKinnon and Powell where I could not disentangle much of the personal information about Mr and Mrs Powell is quite different from that in Anderson. Deputy President Hall did not suggest that he could not disentangle the personal information. Rather, it was a case in which the personal information of others was known to the applicant requesting access to the documents containing it.90. That will often be the case but it is possible to imagine cases in which it will not be known. While it is a difference between the cases, I feel that it would be disingenuous to distinguish the two cases on that basis for the approaches are quite different. I am not wedded to my approach in McKinnon and Powell and will consider the matter again from first principles. [76] The difference between Anderson and McKinnon and Powell is also one that is found between the latter case and Re Carter and Department of Health (ACT) 91. (Carter). Carter concerned a document prepared by a qualified social worker of the Child at Risk Assessment Centre at the Woden Valley Hospital regarding children. Mr Carter was the children's maternal grandfather and the children's mother had alleged that he had sexually abused her as a child and that he had also sexually abused one of her friend's, referred to as "X". Mr Carter sought access to the document under the Freedom of Information Act 1989 (ACT) (ACTFOI) in order to identify the friend's identity so that he could clear himself of the allegation. The report was prepared on a court order and sent to the Community Advocate and the Family Services Branch. The social worker informed those whom she interviewed of these facts. Mr Carter already knew much of the information and also knew that the children's father had made allegations of sexual abuse against him. [77] Professor Curtis said: 20. On one view, the information in question concerns the personal affairs of 3 persons. One is the father of the children, in that it relates to a (presumably) private conversation he had with 'X'. The second is 'X', in that it relates to an allegation that she had been sexually abused. The third is the applicant himself, in that it contains an allegation that he has sexually abused 'X'. Assuming, for the purpose of analysis, that the information is information concerning the personal affairs of those 3 persons, the issue is whether it is exempt from disclosure under section 41 of the FOI Act. To the extent that the information relates to Mr Carter, it is not exempt under that section. The section expressly provides that it does not apply only because the information concerned is information relating to the personal affairs of the applicant. Where, as in the present case, the information also relates to the personal affairs of others, what has to be considered is whether disclosure to the applicant would be an unreasonable disclosure of the personal affairs of those others. 21. In this case, the identity of the applicant is significant. If the person seeking access were someone else, it may well be that, depending on the circumstances, access should be denied on the ground that there would be an unreasonable disclosure of the personal affairs of Mr Carter. Because Mr Carter is the applicant, that ground is not available to deny access. In seeking access, Mr Carter is seeking to exercise a right of access which is personal to him and which is not available to a member of the general public. Thus the issue whether the giving of access would be an unreasonable disclosure of the personal affairs of the children's father or of 'X' must be determined on the basis that the giving of access would be a disclosure to Mr Carter and not to a member of the general public; Re Anderson and Australian Federal Police (1986) 11 ALD 355."92. [78] There is no suggestion in this case that the personal information relating to the three persons could not be separated. Indeed, the contrary would appear to have been the case for Professor Curtis has considered issues relating to the grant of access to Mr Carter to his own personal information and the grant of access to him to personal information relating to the children's father and to X. The personal information could not be separated in that way in McKinnon and Powell. 16 As the Kilkeary Report contains personal affairs of the Applicant, the third party and other co-workers, it is prima facie exempt material. It would be impossible to disentangle the personal affairs of the Applicant from those of the third party. The Kilkeary Report is an investigation into the third party's conduct based on the Applicant's complaints. However, the second part of the personal affairs exemption test is that the disclosure of the information would be unreasonable. 17 In Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43, it was held that a number of matters may be relevant to that question, such as the views of the third parties (i.e. the persons to whom the information relates); the nature and extent of the prejudice to the third parties if the information is disclosed; and whether the disclosure would serve the public interest purposes of the FOI Act. In Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429, it was held that what was "unreasonable" was to be judged by public interest considerations, including the public interest that information concerning a person's personal, business or professional affairs were excepted from the general right of public access to information held by government agencies. 18 In Chief Executive Officer, State Rail Authority v Woods (No 2) [2003] NSWADTAP 39 and Keriakes v State Rail Authority [2003] NSWADT 191, the disclosure of names of workers on a petition complaining about a co-worker was held to be unreasonable, because of the possibility of harassment and victimisation of the signatories, and inhibition of the flow of information to the agency. The situation is quite different in the present case, where the Kilkeary Report constitutes an investigation into the Applicant's grievances with a co-worker, the third party. It is clear from the Report itself that the third party was given an opportunity to respond to the allegations by the Applicant. 19 In Re Anderson and Australian Federal Police [1986] AATA 79; (1986) 11 ALD 355, Hall DP reasoned, especially at 367, that, where the personal information of an applicant is inextricably interwoven with the personal information of others, section 41(2) cannot operate, as it might have done in this case had access been granted, to subvert the operation of section 41(1). The Deputy President said in that context, at [49]: There will be circumstances where disclosure of the third party's affairs as part of the applicant's affairs may well involve an "unreasonable disclosure" within the meaning of section 41(1). In such a case, a claim of exemption under section 41(1) is appropriately mounted. However, where it is clear that, by reason of the relationship or interaction between the parties, the information is such that it would in any event be known to the applicant, and its disclosure to the applicant as matter relating to him would not be likely to be objected to, nothing is to be achieved by mounting claims of exemption. It seems to me to be consistent with the object and purpose of the Act for such information to be disclosed. No question of invasion of privacy would be involved in those circumstances. 20 The documents that will be released to the third party are pages 1 - 194 of the Kilkeary Report and the attachments that relate to that part of the report. That part of the Report relate solely to the investigation and review of findings relating to a grievance lodged by the Applicant against the third party. 21 In my view, the public interest test favours release of the Kilkeary Report to the third party who is already aware of the allegations and should have received a copy as a matter of fairness. 22 The AHS has agreed that the attachments to the Kilkeary Report that contain the medical information should be excluded from production to the third party. The medical information in the Report and attachments is exempt from release: Department of Social Security v Dyrenfurth (1988) 15 ALD 232.

Documents containing confidential material 23 Clause 13 of Schedule 1 of the FOI Act provides: 13 Documents containing confidential material A document is an exempt document: (a) if it contains matter the disclosure of which would found an action for breach of confidence, or (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest. 24 In Re B and Brisbane North Regional Health Authority (1993) 1 QAR 279 it was held that the words "for an action of breach of confidence in the Queensland FOI Act should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action: (i) a cause of action for breach of an obligation of confidence; (ii) a cause of action for breach of a contractual obligation of confidence; (iii) a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence. It was further held that the test of exemption was to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff in respect of information held by the agency to which the relevant FOI application was made. 25 Re B has been followed by this Tribunal in Eyes v Wyong Shire Council [1999] NSWADT 139 and Public Service Assn and Professional Officers Assn, Amalgamated Union of NSW v Premier's Department [2002] NSWADT 277 for the purposes of clause 13(a). 26 Four elements necessary to be proven by a plaintiff in an action for breach of confidence were listed by Gummow J in Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) (1987) 14 FCR 434: (i) to identify with specificity, and not merely in global terms, that which is said to be information in question; (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of that information. 27 An additional criterion was included by Gummow J in Smith Klein French Laboratories (Aust) Ltd v Department of Community Services and Health (1990) 22 FCR 73, that it is necessary for the detriment to be occasioned to the original confider of the confidential information. 28 Because the Applicant was unable to articulate with any specificity rather than in global terms, that which is said to be information obtained in confidence, a claim based on clause 13(a) must fail. 29 Documents exempt by clause 13(b), must be such that they:

• would disclose information obtained in confidence,
• could reasonably be expected to prejudice the future supply of information, and
• would, on balance, be contrary to the public interest. 30 The Applicant relied primarily upon two matters in relation to this aspect of her case. Firstly, she relied upon the undertakings Mr Kilkeary provided to her, which she contends relate to the attachments to the Kilkeary Report. Secondly, she relied upon the Tribunal's decision in Ganley v Northern Sydney Central Coast Area Health Service [2009] NSWADT 161 ("the 2009 Ganley decision"), where the Tribunal determined that the Applicant's application for the release of the witness statements of those who provided information to Mr Kilkeary and Mr Kilkeary's handwritten notes be refused, on the basis that the witness statements were provided in confidence. The Tribunal accepted the evidence of Mr Kilkeary that he had assured the witnesses involved that the interviews were conducted on a confidential basis and he would not disclose anything he was told by the interviewees without their express permission. Deputy President Handley said: 64 The exemption conferred by cl 13(b) applies if three requirements are satisfied. First, the information must be obtained in confidence. Second, disclosure of that information could reasonably be expected to prejudice the future supply of such information to the Government or to an agency. In McGuinness v Bathurst Regional Council [2005] NSWADT 152 ('McGuinness'), at [8], Deputy President Hennessy said: "Whether or not disclosure could reasonably be expected to prejudice the future supply of such information does not necessarily depend on whether the informant herself could reasonably be expected to refuse to supply such information in the future. While that evidence is relevant, the Tribunal must answer a broader question, that is whether disclosure could reasonably be expected to prejudice the future supply of such information from a substantial number of the sources available or likely to be available to [the agency] ... (Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 341)." 65 The third requirement is that the disclosure would, on balance, be contrary to the public interest. I note that in WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, at [151], the NSW Court of Appeal, referring to the objects of the FOI Act set out in section 5(2)(a) and (b), recognised that the right to be given access to documents held by an agency is subject to such restrictions as are reasonably necessary for the proper administration of the Government: "Determining whether documents should be disclosed involves balancing those two matters. Thus, ... testing whether disclosure of documents would be contrary to the public interest requires the decision-maker 'to weigh the public interest in citizens being informed of the processes of their Government and its agencies on the one hand against the public interest in the proper working of Government and its agencies on the other': Harris v Australian Broadcasting Corporation [(1983) 78 FLR 236] (at 246)." 31 The Tribunal found all three of the requirements for exemption pursuant to clause 13(b) were made out in relation to the witness statements of those who provided information to Mr Kilkeary and Mr Kilkeary's handwritten notes. The Applicant submitted that the same considerations apply in respect of the whole of the Kilkeary Report. 32 The Kilkeary Undertakings. Mr Kilkeary provided a confidential statement to the Tribunal dated 2 December 2009, in which he denies that the undertakings dated 20 March 2006 and 12 July 2007 were made in relation to the documents attached to his Report. He stated that he kept the two folders of documents to which the undertakings relate. Mr Kilkeary said other than policy documents included in those documents which are publicly available, he did not refer in the text of the Kilkeary Report, by attachment, to any of those documents. Mr Kilkeary also provided copies to the Tribunal of the documents to which the undertakings relate. I accept Mr Kilkeary's evidence that the undertakings did not relate to the whole of the Report, but to the specific information which was provided to the Tribunal and was not included in the Report. 33 Nevertheless, it appears from the 2009 Ganley decision that the witnesses were promised confidentiality by Mr Kilkeary in relation to the information they provided him. On the other hand, it appears that Mr Kilkeary promised that he would not disclose anything he was told by the interviewees without their express permission. On that basis, I accept that it was Mr Kilkeary's intention that the Kilkeary Report would only contain material that the interviewees consented to include in it. 34 I am also satisfied that the information that the Applicant provided to Mr Kilkeary was given to him in confidence. I note however that the Applicant would have known that Mr Kilkeary would provide a report to the AHS and that at least some aspects of the information that she was providing would be incorporated in that report. In those circumstances it would not be reasonable to expect that any promise of confidentiality by Mr Kilkeary would be in regard to the totality of the information provided. 35 Nevertheless, I accept that the first limb of clause 13(b) is satisfied. 36 As has previously been noted, the exemption conferred by clause 13(b) only applies if the three requirements are satisfied. 37 I have already indicated above that it is my view that the public interest favours release of the Kilkeary Report to the third party. It is therefore unnecessary to consider whether disclosure of the information could reasonably be expected to prejudice the future supply of such information to the Government or to an agency. Nevertheless, I will briefly consider the issue. 38 As has been noted above, release of witness statements and other handwritten notes held by Mr Kilkeary was refused in the 2009 Ganley decision. That material is not included in the material that has been sought in the present matter. I am not satisfied that the release of the Kilkeary Report to the third party would prejudice the future supply of such information by the individuals who provided information to Mr Kilkeary. Nor am I satisfied that the release of the Kilkeary Report to the third party would prevent the Applicant supplying such information in the future. Whilst I accept that the Applicant is concerned about the investigation process and other issues relating to the Kilkeary Report, I do not accept that those concerns would prevent her from raising similar issues in the future. 39 In the circumstances, I am not satisfied that the second and third limbs of clause 13(b) are made out.

Documents subject to legal professional privilege 40 Clause 10 of Schedule 1 of the FOI Act provides: 10 Documents subject to legal professional privilege (1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege. (2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document. 41 In WorkCover Authority (NSW) v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84, the Court of Appeal said (at [67]): Legal professional privilege is a rule of substantive law which enables a person to resist the giving of information or the production of documents to a third party which would reveal confidential communications between the person and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings: Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67. 42 In Saggers v Attorney General's Department [2005] NSWADT 193, the Tribunal's President adopted Lockhart J's description of the categories of documents to which legal professional privilege applies in Trade Practices Commission v Sterling (1979) 36 FLR 244 at [21]: (a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. (b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. (c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. (d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. (e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. (f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. (g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.' 43 The Court of Appeal in WorkCover Authority at [86] approved of the Appeal Panel's analysis where it held that "as long as the overall environment is one of legal advice the courts will allow the privilege to cover broader advice which is of a non-legal character, and will protect documents of an administrative character connected to the giving of the legal advice". 44 In order to qualify as legal professional privilege, a lawyer must make a communication in their professional capacity. In the present case, the Applicant has not articulated any basis upon which she could claim the Kilkeary Report contains information subject to legal professional privilege. Mr Kilkeary is not a lawyer and was not engaged by the Applicant to provide legal advice to her in relation to her allegations against the third party.

Internal working documents 45 Clause 9 of Schedule 1 of the FOI Act provides: 9 Internal working documents (1) A document is an exempt document if it contains matter the disclosure of which: (a) would disclose: (i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or (ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and (b) would, on balance, be contrary to the public interest. (2) A document is not an exempt document by virtue of this clause if it merely consists of: (a) matter that appears in an agency's policy document, or (b) factual or statistical material. 46 The purpose of the exemption is to protect documents concerning the decision-making and policy-making functions of an agency, if their disclosure would be contrary to the public interest. The protection is afforded where effective administration would be impeded by the loss of confidentiality. If a final decision has been made, there will need to be clear and compelling reasons as to why it is contrary to the public interest to release such documents: see The NSW FOI Manual at 13.1.30. 47 The Applicant has suggested that the Kilkeary Report is exempt from disclosure under the FOI Act because it constitutes an internal working document for the purposes of clause 9. The Respondent submitted that the documents which the Applicant contends should be subject to the internal working documents exemption do not constitute documents that would disclose opinion, advice, recommendation, consultation or deliberation in the course of the functions of the AHS. 48 The elements of the internal working documents exemption are that the document must: -disclose an opinion, advice or recommendation; or any consultation or deliberation that has taken place

• in the course of, or for the purpose of, the decision making functions of an agency and
• would, on balance be contrary to the public interest. 49 In the present case it is clear that the Kilkeary Report contains recommendations to the AHS. The final requirement of Clause 9(1) is that disclosure would, on balance, be contrary to the public interest. Public interest is not defined in the FOI Act, but section 59A is relevant. That section states that: For the purpose of determining under this Act whether the disclosure of a document would be contrary to the public interest it is irrelevant that the disclosure may: a) cause embarrassment to the Government or a loss of confidence in the Government, or b) cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason. 50 In Latham v Director General, Department of Community Services [2000] NSWADT 58 (upheld on appeal [2000] NSWADTAP 21), the Tribunal said: 51 The public policy underlying the internal working documents exception is that it is legitimate to preserve the secrecy of recommendations and deliberations among public servants so as to protect the "integrity and viability of the decision-making process." (See Re Murtagh and Commissioner of Taxation [1984] AATA 249; (1984) 6 ALD 112 at 123.) However, as I concluded in Bennett -v- Vice Chancellor, University of New England [2000] NSWADT 8 "protecting the viability of the decision-making process" without more, is too vague a concept to be considered a legitimate public interest. 52 When considering whether disclosure would be contrary to the public interest appropriate weight must be accorded to the public interest objects of the legislation. In the New South Wales context, one of the objects of the FOI Act is to "obtain access to information held by Government" (s 5(1)(a)). The Act seeks to achieve this by means which include "conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government" (s 5(2)(b)). 53 In this case Mr Latham has an interest, as a member of the public, in having access to documents which concern him to enable him to understand the basis and reasoning of the decisions which relate to him and to evaluate the conduct of the agency in relation to that decision making process. 51 In Latham Mr Latham sought access to an Investigation Report relating investigations to determine whether any disciplinary or other action should be taken against him by his employer. In the present case, there is a public interest in the third party having access to the Kilkeary Report to enable her to understand the basis and reasoning of the decisions the agency made. In my view, the asserted clause 9 exemption is not made out.

Conclusion 52 In my view, none of the exemptions that the Applicant has asserted have been made out. It follows that the decision The application relates to a decision to release parts of the Kilkeary Report to the third party should be affirmed.

Decision The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. 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: 19 January 2011