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[2002] NSWCA 320
Court of Appeal (NSW)
2006-08-25
Original judgment source is linked above.
CITATION: Howell v Macquarie University [2007] NSWADT 95
APPLICANT PARTIES: Sally Clare Howell RESPONDENT Macquarie University
BEFORE: Montgomery S - Judicial Member
CATCHWORDS: access to documents - business affairs - access to documents - confidential material - access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs
Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1982 (Cth) Ombudsman Act 1974
Attorney General's Department v Cockcroft (1986) 64 ALR 97 Cianfrano v Director-General, New South Wales Treasury [2005] NSW ADT 7 Commissioner of Police v The District Court of NSW (1993) 31 NSWLR 606 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 Director-General of the Department of Fair Trading v Vasey Housing Association NSW [2002] NSWCA 320 Druett v Director General, Department of Community Services (No 2) [2004] NSWADT 269 Howell v Macquarie University [2006] NSWADT 207 Howell v Macquarie University (GD) [2007] NSWADTAP 10 Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 CASES CITED: Mann v Carnell (l999) 201 CLR 1 McMahon v Director-General, Department of Fair Trading [2003] NSWADT 164 Neary v State Rail Authority [1999] NSW ADT 107 Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 R v Young (1999) 46 NSWLR 681 Raethel v Director-General, Department of Education and Training [1999] NSWADT 108 Re Cannon and Australian Quality Egg Farms (1994) 1 QAR 491 Re Stewart and Department of Transport (1993) 1 QAR 227 Re Schorel and Director-General of the Department of Community Services (Vic) (1991) 4 VAR 436 TW v TX [2005] NSWADT 262Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 Young v Wicks (1986) 79 ALR 448
APPLICANT P Howell, solicitor REPRESENTATION: RESPONDENT M Allars, barrister
ORDERS: The matter is to be set down for further directions on 22 May 2007 at 9:30 am.
REASONS FOR DECISION 1 This matter relates to the fourth in a series of applications brought by the applicant pursuant to the Freedom of Information Act 1989 ("the FOI Act"). Two earlier matters were the subject of determination by a differently constituted Tribunal and the decisions are recorded at Howell v Macquarie University [2006] NSWADT 207 ("the Tribunal decision"). The applicant appealed against those decisions to the Tribunal's Appeal Panel. The appeal was recently concluded and the Appeal Panel's decision is recorded at Howell v Macquarie University (GD) [2007] NSWADTAP 10 ("the Appeal Panel decision"). 2 As at November 2004 the applicant was the deputy principal of the School for Children with Special Learning Needs in the Macquarie University Special Education Centre (MUSEC). On or about 24 November 2004 the mother ("the mother of the boy") of a nine-year old boy ("the boy") who attended the school complained of mistreatment by three staff members at MUSEC, one of them being the applicant. The applicant was notified of the complaint. After considering advice from the University Solicitor, Ms Jennifer O'Brien, the University appointed an external investigator (Mr Geoff Kelly of Lee Kelly & Associates) to undertake an investigation. 3 As the Appeal Panel observed, the applicant contends that the background to the applications is relevant to any public interest calculus and to her case that legal professional privilege does not attach to several of the documents because they were created for an improper purpose. A more complete background to the application is set out in the Appeal Panel decision. I adopt the summary provided at paragraphs [8] to [17] of the Appeal Panel decision. It serves no purpose to repeat it here. The FOI request 4 By letter dated 26 August 2005, the applicant requested the release of: (i) All correspondence and reports submitted to the University by Lee, Kelly and Associates in relation to its investigation of a complaint by [the mother of the boy] made in November 2004. (ii) All documents including witness statements (other than those submitted by [the applicant]) and transcripts of interviews, which were available to Lee, Kelly and Associates when that firm was preparing its investigation report into the above complaint, (iii) All other documents submitted to the Vice-Chancellor or the Acting Vice- Chancellor prior to the University making a decision on the report submitted by Lee, Kelly and Associates. 5 On 14 September 2005 the applicant's solicitor wrote to the University's Freedom of Information Officer and clarified the request in the following terms: The reports sought in point 1 of the request dated 26th August are reports which relate to my client's conduct. If there are separate reports which deal with other members of staff, and which do not deal with my client's conduct, then those are not part of the request. Otherwise the request seeks documents which refer to, or reflect on, my client's alleged actions or inactions, including her management of the school. This would include, for example, documents which do not refer to her by name, but which relate to procedures within the school. It is important to bear in mind that from late November till 15th February it was unclear to what extent the complaint was a complaint about my client. She was not specifically referred to in the complaint, but much of the focus of the investigation seemed to be on her management of the school. It was not until the latter date that Lee Kelly and Associates prepared a letter to my client confirming that there were two quite specific allegations against her. That letter was provided to her on 17th February 2005. Accordingly it would not be permissible to take the report against my client as the starting point, and disclose only those documents referred to in it. Every document concerning the complaint prior to 15th February was treated by the University and Lee Kelly and Associates as relating to my client's conduct. I point out also that points 1 and 2 of the request are wide enough to cover correspondence between Lee Kelly and Associates and the University concerning the management of the investigation. 6 There are 80 documents that have been identified by the University as potentially falling within the scope of the applicant's request and which are the subject of this application. The documents initially identified were set out in the schedule attached to the original determination ("FOI Schedule"). A further two documents have subsequently been identified. Of those, one has been included in an updated schedule prepared by the University and filed in the proceedings. The other document has been identified and it is agreed between the parties that its status is a relevant determination to be made in those proceedings. Copies of the documents that remain in dispute have been provided to the Tribunal. The updated schedule has adopted different numbering to that contained in the FOI Schedule and that used in the evidence filed in the proceedings. In this decision I will refer to the document numbering adopted in the updated schedule. 7 An issue of estoppel was raised with respect to one of the document listed as document 33 in the updated schedule. That document was also identified as document 15, which was considered in the Tribunal decision and the Appeal Panel decision. I consider that an estoppel applies in relation to that document however I understand that the issue has been resolved between the parties. Applicable legislation 8 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act. The legally enforceable right to be given access to documents is subject only to such restrictions as are reasonably necessary for the proper administration of Government. The discretions conferred by the FOI Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information. 9 Under section 25(1)(a) of the FOI Act, an agency has discretion to refuse access to a document if it is an exempt document. Pursuant to section 61 of the FOI Act the agency has the burden of establishing that its determination was justified. 10 Clause 6 of Schedule 1 of the FOI Act provides as follows: 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 Clause 7 of Schedule 1 of the FOI Act provides as follows: 7 Documents affecting business affairs (1) A document is an exempt document: (a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or (a1) if it contains matter the disclosure of which would disclose the commercial-in-confidence provisions of a government contract (within the meaning of section 15A), or (b) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets or commercial-in-confidence provisions) that has a commercial value to any agency or any other person, and (ii) could reasonably be expected to destroy or diminish the commercial value of the information, or (c) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and (ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. (2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made. 12 Clause 10 of Schedule 1 of the FOI Act provides as follows: 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. 13 Clause 13(b) of Schedule 1 of the FOI Act provides as follows: 13 Documents containing confidential material A document is an exempt document: … (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. The documents in dispute 14 In a statement dated 21 April 2006, Professor James Austin Piper described the documents that are the subject of this application. He identified the documents by reference to the numbering adopted in the FOI Schedule. For convenience I have replaced Professor Piper's FOI Schedule references with the numbering reference adopted in the updated schedule provided by the University. Professor Piper referred to the documents as follows: 13. The following sets out in more detail the basis on which I made the internal review determination. I do not refer to Documents 1, 15, 16, 21-23, 28, 29, 48, 49, 55I-55T, 55V, 55Y, 55Z or 57, which were released in full by Lachlan Morgan, Macquarie University's FOI Officer, with his letter to Mr Howell dated 30 September 2005. I also do not refer to Documents 55U, 55X and 55BB as Mr Howell indicated in the letter dated 24 October 2005 applying for the internal review that these documents need not be supplied. 14. Document [1] is a diary note by Jennifer O'Brien of a telephone conversation recording developments in an investigation and instructions received by the University Solicitor from Geoff Kelly. 15. Document [2] is a facsimile from Geoff Kelly to Jennifer O'Brien transmitting a copy of the chronological index of documents in a brief from Minter Ellison. 16. Document [3] is a diary note by Jennifer O'Brien of telephone conversations recording developments in an investigation, instructions received by the University Solicitor from Geoff Kelly and Professor Wheldall and advice received by the University Solicitor from Minter Ellison. 17. Document [4] is an email from Geoff Kelly to the University Solicitor. The email is a record of instructions received by the University Solicitor from Geoff Kelly. 18. Documents [5, 6, 7, and 8] are copies of risk analyses and allegation worksheets prepared by Geoff Kelly and attached to Document [4]. They are records of instructions received by the University Solicitor from Geoff Kelly. 19. Document [9] is an email from Geoff Kelly to the University Solicitor. The email is a record of instructions received by the University Solicitor from Geoff Kelly. 20. Document [10] is a copy of an evidence matrix and investigation plan prepared by Geoff Kelly and attached to Document [9]. It is a record of instructions received by the University Solicitor from Geoff Kelly. 21. Document [11] is a letter from the University Solicitor to Geoff Kelly dated 16 December 2004, seeking instructions from Geoff Kelly. 22. Document [12] is an email from Geoff Kelly to the University Solicitor. The email is a record of instructions received by the University Solicitor from Geoff Kelly. 23. Document [13] is a copy of an unsigned letter prepared by Geoff Kelly and attached to Document [12]. It is a record of instructions received by the University Solicitor from Geoff Kelly. 24. Document [14] is an email from the University Solicitor to Geoff Kelly and Jacquie Seemann of Minter Ellison dated 20 December 2004. In the email the University Solicitor seeks instructions from Geoff Kelly and advice from Jacquie Seemann. 25. Document [15] is an email from Geoff Kelly to the University Solicitor and Jacquie Seemann. The email is a record of instructions received by the University Solicitor from Geoff Kelly. 26. Documents [16 and 17] are file notes prepared by Geoff Kelly and attached to Document [15]. They are records of instructions received by the University Solicitor from Geoff Kelly. 27. Document [18] is an email from Geoff Kelly to the University Solicitor and Jacquie Seemann. The email is a record of instructions received by the University Solicitor from Geoff Kelly. 28. Documents [19 and 20] are file notes prepared by Geoff Kelly and attached to Document [18]. They are records of instructions received by the University Solicitor from Geoff Kelly. 29. Document [21] is a diary note by Jennifer O'Brien of a telephone conversation recording developments in an investigation, instructions received by the University Solicitor from Geoff Kelly and advice received by the University Solicitor from Jacquie Seemann of Minter Ellison. 30. Document [22] is an email from Geoff Kelly to the University Solicitor and Jacquie Seemann and an unsigned letter prepared by Geoff Kelly. The email and letter are records of instructions received by the University Solicitor from Geoff Kelly. 31. Documents [23 and 24] are diary notes by Jennifer O'Brien of telephone conversations recording developments in an investigation and instructions received by the University Solicitor from Geoff Kelly. 32. Document [25] is an email from the University Solicitor to Geoff Kelly dated 14 February 2005 recording developments in the investigation. 33. Document [26] is an email from Geoff Kelly to the University Solicitor. The email is a record of instructions received by the University Solicitor from Geoff Kelly. 34. Document [27] is a record of an interview with the carer of the boy prepared by Geoff Kelly and attached to Document [26]. It is a record of instructions received by the University Solicitor from Geoff Kelly. 35. Document [28] is a diary note by Jennifer O'Brien of a telephone conversation recording matters relating to an investigation and instructions received by the University Solicitor from Kyle Pitt. 36. Document [29] is an email from the University Solicitor to Geoff Kelly Solicitor dated 16 February 2005, seeking instructions from Geoff Kelly. 37. Document [30] is a letter from Geoff Kelly to the University Solicitor dated 15 February 2005. The letter is a record of instructions received by the University Solicitor from Geoff Kelly. 38. Document [31] is a diary note by Jennifer O'Brien of a telephone conversation recording developments in an investigation and instructions received by the University Solicitor from Geoff Kelly. 39. Document [32] is a copy of a letter, tax invoice and timesheet prepared by Geoff Kelly. They contain instructions received by the University Solicitor from Geoff Kelly and information concerning the cost to the University of the investigation and the professional fees of Geoff Kelly. 40. Document [33] is a diary note by Jennifer O'Brien of a telephone conversation recording developments in an investigation and seeking instructions from Geoff Kelly. 41. Document [34] is a diary note by Jennifer O'Brien of telephone conversations recording developments in an investigation and seeking instructions from Glenys O'Riley. 42. Document [35] is an email from the University Solicitor to Geoff Kelly dated 4 April 2005, seeking instructions from Geoff Kelly. 43. Document [36] is an email from Geoff Kelly to the University Solicitor and Jacquie Seemann. The email is a record of instructions received by the University Solicitor from Geoff Kelly. 44. Document [37] is a file note prepared by Geoff Kelly and attached to Document [36]. It is a record of instructions received by the University Solicitor from Geoff Kelly. 45. Document [38] is a copy of a letter, tax invoice and timesheet prepared by Geoff Kelly. They contain instructions received by the University Solicitor from Geoff Kelly and information concerning the cost to the University of the investigation and the professional fees of Geoff Kelly. 46. Document [39] are diary notes by Jennifer O'Brien dated 5 April 2005 of telephone conversations with Geoff Kelly, Sharon Litchfield and Sue Barnes recording developments in an investigation and advice by the University Solicitor to Sharon Litchfield. 47. Document [40] is a letter from Geoff Kelly to the Assistant University Solicitor dated 9 May 2005. The letter is a record of instructions received by the Assistant University Solicitor from Geoff Kelly. 48. Document [41] is a diary note by Helen Freidman of a telephone conversation recording developments in an investigation and seeking instructions from Geoff Kelly. 49. Document [42] are diary notes by Helen Freidman of telephone conversations recording developments in an investigation and seeking instructions from Geoff Kelly. 50. Document [43] are diary notes by Helen Freidman of telephone conversations recording developments in an investigation, seeking instructions from Geoff Kelly and advice from Jacquie Seemann. 51. Document [44] are Child Protection Investigation Reports in relation to Sally Howell and Kyle Pitt by Lee Kelly and Associates Pty Ltd to Minter Ellison dated 28 June 2005 recording and reporting upon work undertaken, documents obtained, preliminary findings, observations and recommendations for and on instructions from Minter Ellison. 52. Documents [45 to 50] inclusive are a list of reference documents, photographs, sketch plan, record of interview, allegation worksheet and statement attached to and forming part of Document [44]. 53. Documents [51 to 55] inclusive and [56 to 58] inclusive are file notes by Geoff Kelly, emails passing between Geoff Kelly and Jennifer O'Brien, answers by Felicity Graham to questions, interview plan for Glenys O'Riley and answers to questions posed by Geoff Kelly regarding the [the boy's] matter attached to and forming part of Document [44]. 54. Documents [60 to 69] inclusive are an evidence matrix and investigation plan, file notes by Geoff Kelly and letters from Geoff Kelly to Jennifer O'Brien and Helen Freidman attached to and forming part of Document [44]. 55. Document [70] contains Ann George's answers to questions sent by Geoff Kelly dated 20 February 2005. Documents [71 and 72] are file notes by Geoff Kelly dated 14 December 2004 and 18 February 2005. These documents are attached to and forming part of a Child Protection Investigation Report in relation to Ann George by Lee Kelly and Associates Pty Ltd sent to Minter Ellison and dated 7 April 2005 and recording and reporting upon work undertaken, documents obtained, preliminary findings, observations and recommendations. 56. Documents [73 to 79] inclusive are a memorandum from the Assistant University Solicitor to Professor Yerbury dated 29 June 2005, an email from the Assistant University Solicitor to Kylie Colvin dated 1 July 2005, a draft memorandum from the Assistant University Solicitor to Professor Yerbury dated 1 July 2005, a draft letter to go on the VC's University letterhead, a memorandum from the Assistant University Solicitor to Professor Yerbury dated 1 July 2005, a memorandum from the Assistant University Solicitor to Professor Loxton dated 6 July 2005 and an email from the Assistant University Solicitor to Professor Loxton dated 13 July 2005. The memoranda and emails contain advice given by the Assistant University Solicitor in relation to the University's legal obligations and rights and reference to further instructions. 15 Document 59 is identified in the updated schedule as 'medical details for [the boy] dated 1/12/200'. 16 Two further documents have been identified that were not considered by Professor Piper and are not mentioned in the FOI schedule. These are referred to in the updated schedule as Documents 80 and 81. Document 80 contains questions submitted to and answers by Ivy Green dated 22 February 2005. Document 81 contains handwritten notes of Brigid Readford and is undated. The University's case 17 By reference to the updated schedule, the University asserts that the following exemptions apply pursuant to Schedule 1 to the FOI Act: (i) Clause 10 (legal professional privilege) in respect of Documents 1-58 and 60- 79; (ii) Clause 6 (personal affairs) in respect of Documents 26, 27, 35, 37, 44, 48,50, 55, 57, 59, and 70; (iii) Clause 7 (business affairs) in respect of Documents 32 and 38; and (iv) Clause 13(b) (communication of confidential information) in respect of Documents 5-8, 10, 16-20, 23, 26-28, 32, 35, 37, 38, 44, 48-50, 55, 57, 58, 60 and 70. 18 The University asserts that Document 80 is exempt pursuant to clauses 6, 10 and 13(b) of Schedule 1 to the FOI Act. The University asserts that Document 81 is outside the scope of the FOI application. 19 The University relies on statements of evidence of Mr Lachlan Morgan, the University's Manager, Records and Archives and FOI Officer who carried out the initial determination, statements of evidence of Professor James Austin Piper, who carried out the internal review and a statement of Ms Denise Osmand, the University's Director, Financial Services and Bursar. Both Mr Morgan and Professor Piper attended the hearing and were subjected to cross-examination. Ms Allars appeared on behalf of the University and provided detailed written and oral submissions in support of its case. Clause 10 20 As I have already indicated, the University asserts that the majority of the documents in dispute are exempt pursuant to Clause 10 of schedule 1 to the FOI Act. Ms Allars provided detailed submissions on the general principles of legal professional privilege. She then submitted on the application of those principles to the particular documents in respect of which the exemption is asserted. She says that the only evidence as to purpose is that the dominant purpose was the giving of legal advice. 21 Ms Allars submits that all the withheld documents were communications for the dominant purpose of giving legal advice or taking instructions in order to give legal advice in relation to the University's compliance with its legal duties. The University argues that the fact that legal advice is given for the purpose of particular investigation or for the purpose of particular proceedings conducted by an investigative agency does not deprive it of the quality of legal advice, nor does it detract from a communication being a communication between a legal representatives or an agency's solicitor and the client. Further, the fact that the communication can be described as having more than one purpose does not mean that it does not have a dominant purpose of giving legal advice. The university's solicitor has a role of providing independent advice to the University on what its legal responsibilities are and how it ought to conduct itself in order to meet them. 22 The University's evidence and position is conveniently summarised in the following submission: 2.16 Parts of Documents 3 and 39 (FOI Schedule Nos. 4 and 47) were prepared by Ms Jennifer O'Brien as University Solicitor within a professional relationship of legal adviser to the University. The advice contained in the documents was communicated in confidence to senior officers of the respondent. 2.17 Ms O'Brien and Ms Freidman, the Assistant University Solicitor, hold current practising certificates. 2.18 Ms O'Brien's retainer, set out in her duty statement, is restricted to the provision of legal advice. 2.19 Mr Kelly, of Lee, Kelly & Associates Pty Ltd, was appointed as an agent of the University to conduct the investigation. 2.20 The communications made by Ms O'Brien and Ms Freidman to Mr Kelly were made in their professional capacities as legal practitioners, giving advice to the agent of their client, the University. Mr Kelly's communications were made to Ms O'Brien and Ms Freidman to give instructions and seek advice as to the proper conduct of the investigation in accordance with the University's obligations within the relevant statutory framework. 2.21 The communications were made in confidence as is evident from the documents themselves, the context in which Mr Kelly was appointed, the nature of his task and the terms of his appointment. 2.22 The communications in Documents 1, 11, 14, 23-25, 29, 31, 33 and 35 (FOI Schedule Nos. 2, 12, 17, 31-33, 37, 39, 41 and 43) were made by Ms O'Brien to Mr Kelly within a professional relationship of legal adviser to the University to the University's agent, for the dominant purpose of providing professional legal advice and assistance. The communications in parts of Documents 3, 21 and 39 (FOI Schedule Nos. 4, 27 and 47) were similarly made for the dominant purpose of providing professional legal advice and assistance. The privilege applies to the entirety of the communications. 2.23 Documents 2, 4-10, 12-13, 15-20, 22, 26-27, 30, 32, 36-38, 40, 44-58 and 60-72 (FOI Schedule Nos. 3, 5-11, 13-14, 18-26, 30, 34-35, 38, 40, 44-46, 50, 54-55H.3 and 55CC-59) were prepared by Mr Kelly who as agent of the University communicated in confidence with the University's legal advisers in their professional capacity or with the University's external legal advisers. 2.24 Documents 14, 21, 75 and 76 (FOI Schedule Nos. 17, 27, 62 and 63) and parts of Documents 3, 43, 74 and 79 (FOI Schedule Nos. 4, 53, 61 and 66) were prepared by Ms O'Brien or Ms Freidman and communicated in confidence to, or are records of communications made in confidence to, the University's external legal advisers. The communications were made for the dominant purpose of the University receiving professional legal advice and assistance. 2.25 Documents 36 and 42 (FOI Schedule Nos. 44 and 52) are records of communications that relate to information sought by the University's legal adviser to enable her to advise the University. The communications were made in a professional capacity and for the dominant purpose of providing professional legal advice and assistance. 2.26 Documents 73, 77-79 (FOI Schedule Nos. 60, 64-66) and parts of Documents 42 and 74 (FOI Schedule Nos. 52 and 61) were prepared by Ms Freidman within a professional relationship of legal adviser to the University. The advice contained in the documents was communicated in confidence to senior officers of the respondent in Ms Freidman's professional capacity for the dominant purpose of providing professional legal advice. 2.27 Documents 41 (FOI Schedule No. 51) and parts of Documents 42 and 43 (FOI Schedule Nos. 52 and 53) were prepared by Ms Freidman within a professional relationship of legal adviser to the University and communicated in confidence to Mr Kelly as the agent of the University. The communications were made for the dominant purpose of providing professional legal advice. 2.28 Parts of Documents 74 and 79 (FOI Schedule Nos. 61 and 66) were prepared by the respondent's external legal advisers and were communicated in confidence by the respondent's external legal advisers to Ms Freidman. The communications were made for the dominant purpose of providing the University with professional legal advice. 2.29 The communications in each of these Documents are protected by legal professional privilege and the exemption in clause 10 applies. 23 The applicant claims that a direction issued to the applicant was issued for improper purposes. These are said to include the purpose of damaging the applicant, retaliating against the applicant, branding the applicant as obstructionist, interfering and a contaminator of evidence and smearing the applicant. The University denies any allegations of improper purpose. It asserts that those allegations ought not to be made in the absence of proper evidence to support them and a person alleging improper purpose bears an onus of establishing that improper purpose. 24 An improper purpose is not lightly to be inferred. If the purpose of a decision has to be ascertained by inference, a presumption of regularity operates: Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649,671 per Gaudron J. 25 Ms Allars submits that the applicant's allegations about improper purposes are made without evidentiary support and have no bearing upon the issues before the Tribunal in these proceedings. She says that even if it were argued that a claim of improper purpose raises an issue of wrongdoing and that this is relevant to the public interest, or to the application of clause 10, the applicant must establish a proper evidentiary basis for such a claim. She argues that the applicant's case provides no evidence of any improper purpose. No evidence has been adduced by the applicant, which amounts to more than expressions of the personal feelings of the applicant, in particular her sense of grievance. 26 She says that given the absence of evidence, these allegations should never have been made. It naturally follows that an absence of evidence to support any inference of improper purpose is also an absence of evidence of wrongdoing which could conceivably go to the application of clause 10 or any public interest test under Clause 13(b) in Schedule 1 to the FOI Act. 27 The University denies that there has been any waiver of the privilege that it asserts attaches to these documents. Ms Allars submits that the applicant has misconceived the doctrine of waiver. She says that the release of material in discharge of an obligation under the FOI Act has no implications for other privileged documents. The release of one document cannot give rise to waiver of another document. Clause 6 28 The University contends that several of the documents are exempt pursuant to Clause 6 of Schedule 1 to the FOI Act. An exemption is claimed with respect to personal details of private persons who are not officers of the University and personal details of officers of the University. 29 Ms Allars submitted that the third party information in the present case includes material of a highly personal nature relating to the boy, including medical details and behavioural characteristics, and contain personal details of the mother of the boy and the carer of the boy, including addresses, occupations, ages, and personal relationships with each other. She relies on Commissioner of Police v The District Court of NSW (1993) 31 NSWLR 606 ("Perrin 's case") as support for the submission that the material in these documents constitutes "information concerning the personal affairs" of those individuals within Clause 6. 30 Ms Allars submitted that the information provided to Mr Kelly by officers of the University was not provided as part of a performance review or a selection process. It was not provided in any official capacity. Each officer provided the information voluntarily in the context of an investigation of a specific allegation. While the University has a duty under section 25C of the Ombudsman Act 1974 to notify the Ombudsman of a "reportable allegation", that Act does not impose upon agency employees a duty to answer questions or disclose documents in an agency investigation into a reportable allegation. 31 While she concedes that material concerning an officer of an agency may be considered differently to that of a third party, she submits that in the circumstances of this matter the material concerned the personal affairs of officers of the University. She relies on Perrins' case and TW v TX [2005] NSWADT 262 at [37] as support for this submission. 32 The Clause 6 refers to the 'unreasonable disclosure' of information concerning the personal affairs. The University contends that the question of whether disclosure is unreasonable requires consideration of all the circumstances. These including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. The question may involve an element of balancing of public interests. The motives and purposes of the person making the request can rarely, if ever, be given consideration. 33 Ms Allars submitted that where consultation takes place pursuant to section 31 of the FOI Act and the third party indicates that he or she does not wish to have the information disclosed, this is a factor to be taken into account in determining whether the disclosure would be unreasonable. Mr Morgan gave evidence of his consultation pursuant to section 31. None of the persons who were consulted for their views consented to the disclosure of their personal information. 34 Ms Allars concedes that there is evidence that several officers have no objection to the release of information to the applicant, however she says that the information under consideration includes information concerning the personal affairs of the boy. Whether or not the officers consent to the release of information concerning the personal affairs of the boy is not a matter material to the question of whether its disclosure would be unreasonable. 35 Ms Allars further submitted that the personal information concerned does not affect the applicant. While disclosure of the information may satisfy the applicant's curiosity about the evidence given by other employees, it is of no continuing significance. She says that the material in the documents concerns the personal affairs of a person and disclosure would be unreasonable. The exemption in Clause 6 of Schedule 1 to the FOI Act therefore applies. Clause 7 36 Ms Allars submitted that Documents 32 and 38 concern the business affairs of Lee, Kelly & Associates Pty Ltd, as they contain information about the amount charged to the University by a company that carries on an investigation business. The documents also contain information about the modus operandi of the company in undertaking an investigation. She says that the documents concern the business, professional, commercial and financial affairs of the company. 37 Ms Allars referred to a number of authorities that provide some guidance for the meaning of the expression Business affairs for the purposes of Clause 7 of Schedule 1 to the FOI Act. 38 The notion of "business affairs" was characterised by Beaumont J in Young v Wicks (1986) 79 ALR 448 as referring to a commercial operation. In Raethel v Director-General, Department of Education and Training [1999] NSWADT 108 at [47] it was held that in the context of a school, business affairs included matters relating to income and expenditure, employment relationships and fundraising. In Re Stewart and Department of Transport (1993) 1 QAR 227 the Queensland Information Commissioner construed the expression as meaning matters concerning the business undertakings of the person, which is to be carried on in an organised way for the purpose of obtaining profit or gain. In Cianfrano v Director-General, New South Wales Treasury [2005] NSW ADT 7 at [63] it was accepted that the commercial affairs of an agency can include transactions such as the leasing and sale of property vested in it, and related negotiations. 39 The expression "financial affairs" has been held to include expenditure on professional services, the negotiation of fee arrangements with external providers, hourly rates and the actual amounts paid (see Neary v State Rail Authority [1999] NSW ADT 107) as well as reports concerning information about the money management, including credit arrangements, of an agency: Re Cannon and Australian Quality Egg Farms (1994) 1 QAR 491 at [76]. 40 Ms Allars submitted that the term "unreasonable" in clause 7(1)(c)(ii) should be given its ordinary meaning. She referred to views of the Tribunal's President in Neary v State Rail Authority at [35] as to the approach to be taken the question of whether disclosure of information would have an unreasonable impact on an agency's business for the purposes of clause 7(1)(c)(ii): 35 An objective view must be brought to bear on an agency's claim that release will have an adverse impact on its financial affairs. The Tribunal should approach issue from the viewpoint of a reasonable administrator. The administrator should have reasonable grounds for his or her perception. There must be more than a mere risk. While the key word used in the relevant provision - 'expect' - carries a firmer connotation than words such as 'anticipates', it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. All relevant factors, including public interest considerations, should be taken into account. The extent and nature of the effect will be relevant, and often decisive. It is necessary to assess what is reasonable in the circumstances. 41 On the issue of whether the disclosure of information can reasonably be expected to prejudice the future supply of such information, in the context the Freedom of Information Act 1982 (Cth) the majority of the Court in Attorney General's Department v Cockcroft (1986) 64 ALR 97 said: "In our opinion, in the present context the words 'could reasonably be expected to prejudice the future supply of information' were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act." 42 In Cianfrano at [75] -[76] it was held that disclosure of an external consultant's agreement to provide services could reasonably be expected to have an unreasonable adverse effect on the business affairs of the consultant and of the government. Disclosure would enable competitors to understand and perhaps undercut the consultant's pricing strategy, and hamper the government's strategies in conducting negotiations. 43 Ms Allars contends that disclosure of these documents could reasonably be expected to have an unreasonable adverse effect on the University's business affairs or those of Lee, Kelly and Associates Pty Ltd. These documents fall squarely within the categories set out in Neary v State Rail Authority at [33]. Ms Allars says that the considerations accepted in Cianfrano as establishing that clause 7(1)(c)(ii) was met arise in the present context in relation to the documents concerning the business affairs of Lee Kelly and Associates. 44 In making a determination of whether disclosure would be unreasonable, an agency is required under section 32 of the FOI Act to consult with the person whose business affairs are concerned. The views of the person concerned are relevant to determining whether disclosure would have an unreasonable adverse effect on the business affairs of that person. Mr Kelly was consulted in relation to the applicant's request and indicated that he objected to the release of the documents on the ground that disclosure would have an adverse effect on the business affairs of his company. 45 Ms Osmand's evidence is that external consultants engaged by the University may suffer a competitive disadvantage if their business arrangements with the University are disclosed to people or organisations outside the University and that external consultants may decline to offer their services to the University in the future if their business arrangements with the University or their charge rates are disclosed to people or organisations outside the University. 46 The University says that paragraphs (i) and (ii) in clause 7(c) are satisfied in respect of each of Documents 32 and 38 and therefore the exemption in clause 7 of Schedule 1 to the FOI Act applies. Clause 13(b) 47 Clause 13(b) of Schedule 1 to the FOI Act provides that a document is an exempt document if disclosure would disclose information obtained in confidence, and could reasonably be expected to prejudice the future supply of information to the Government or to an agency, and would, on balance, be contrary to the public interest. Whether information is obtained in confidence depends upon the circumstances of the case. 48 The University says that the fact that material was obtained in confidence and that disclosure could reasonably be expected to prejudice the future supply of information to the University and the public interest test are in large part established by reference to the particular statutory scheme within which these documents were created or communicated. It says that in particular part 3A of the Ombudsman Act is relevant. The investigation is done under the framework of part 3A in the Ombudsman Act and the Ombudsman has power to supervise and monitor and step in and take over the investigation. 49 The University says that clause 13(b) is concerned with the circumstances in which information is obtained. There is no necessity to establish an express agreement of confidentiality in order to establish exemption under clause 13(b). Confidentiality may be implied from circumstances. 50 Ms Allars referred to a number of authorities that provide some guidance for determining whether this exemption applies. 51 In Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 the Tribunal regarded it as relevant to the question of whether the information was "obtained in confidence" to ask whether there was "a standardised procedure of receiving any information and doing so on a confidential basis". 52 In TW v TX the Tribunal held that a letter sent by a supervisor to an investigator and the attachments to it were obtained in confidence for the purposes of clause 13(b)(i) "because the investigator had been told to treat all documents provided to him at the beginning of the inquiry in the strictest confidence. The strong inference from that instruction is that the investigator should also treat documents provided to him in the course of the investigation in the strictest confidence." The Tribunal held that information given by employees to an investigator appointed under the Occupational Health and Safety Act 2000 was given in confidence. That finding was supported by the terms of guidelines that required that people involved in a workplace concern or dispute procedure should maintain confidentiality. 53 Ms Allars submits that the case law recognises the public interest in maintaining the confidentiality of the names of persons who provide information to law enforcement bodies. The rationale for public interest immunity in respect of police informers is that unless their names are protected, sources of information will dry up, hindering police in the detection and prevention of crime: R v Young (1999) 46 NSWLR 681 at 721. She contends that this approach also applies to other regulatory agencies: Director-General of the Department of Fair Trading v Vasey Housing Association NSW [2002] NSWCA 320. The New South Wales Court of Appeal upheld a claim to public interest immunity in relation to the names, addresses and telephone numbers and any other material identifying, or tending to identify, the residents in a retirement village who had complained to the Department of Fair Trading about the management of the village. 54 In McMahon v Director-General, Department of Fair Trading [2003] NSWADT 164 this Tribunal held that a document provided in confidence to the Department of Fair Trading, concerning possible breaches of the Home Building Act 1989 and treated by the Department as confidential, fell within the exemption in clause 13(b). Whether an external informer or an "insider" provided information, the Tribunal held that by reason of the nature of its content the document was exempt. 55 Ms Allars further submits that the concern about an adverse effect upon the flow of information to responsible agencies is heightened in cases where the welfare of children is at stake. She referred to Re Schorel and Director-General of the Department of Community Services (Vic) (1991) 4 VAR 436 where the Victorian AAT held that for the purposes of the Victorian counterpart of clause l3(b) disclosure of information communicated in confidence about the welfare of children would be reasonably likely to impair the ability of the Department to obtain similar information in future. 56 In Druett v Director General, Department of Community Services (No 2) [2004] NSWADT 269 this Tribunal held that the identity of a medical practitioner who raised with the Department of Community Services his concerns about the welfare of a child was exempt under clause 13(b). Judicial Member Higgins held that the "Department relies on this type of information in order to perform its functions and a disclosure of this person's identity may prejudice future supply of this type of information". 57 Ms Allars says that the Ombudsman's Guidelines place a heavy emphasis upon maintaining confidentiality of the information provided in the investigation. She says that the University officers and the boy's carer gave evidence following a representation by Mr Kelly to each of them that the investigation would be conducted in accordance with the Ombudsman Guidelines. In addition more general standard procedures for receipt of information of this nature were followed. The University Solicitor and the University's external legal advisers sought to maintain circumstances where confidentiality would be preserved. 58 The University accepts that the mere communication of the information in confidence does not of itself suffice to establish that the content of the document should be exempt from disclosure. That disclosure would be contrary to the public interest must be established on the evidence. Ms Allars submits that there is evidence of a common express or mutual understanding that information provided to Mr Kelly for the purposes of the investigation would be treated as confidential. As a term of his appointment, Mr Kelly was under an express duty to treat any information he received in this context as confidential. 59 The University contends that those who provide information of the kind for which exemption is sought expect it to be treated as confidential and not disclosed to third parties. Release of the documents could prejudice the future supply of information to the University. Disclosure is likely to lead informers in future to fear the adverse consequences of the University's possible disclosure of the information they supply to third parties. 60 Relevant to clause 13(b)(iii), the University asserts that there is a public interest in permitting an agency to carry out an investigation under these provisions unimpeded by having to disclose information received in confidence during or after the investigation. That public interest is part of the larger public interest in protecting the welfare of children. 61 The University contends that the elements of the exemption in clause 13(b) are satisfied in the case of the material in these documents. For these reasons the determination should be affirmed. The applicant's case 62 Throughout these events the applicant was assisted and advised by her husband, Mr Philip Howell, a solicitor. He has acted on her behalf in dealing with the University and in these proceedings. He prepared the detailed written submissions filed on her behalf and appeared at the hearing. 63 The applicant relies on her own evidence and that of Ms Ivy Green. Mr Howell also tendered a bundle of correspondence between himself and Mr Morgan and an affidavit of Marie Root annexing a transcription of the recorded proceedings in matters 053277 & 053320. Those matters were the subjects of the Tribunal decision. 64 As a general submission Mr Howell says that the Tribunal is being asked to ratify a method of investigating which could conceal from the parents of injured children all details other than a bare statement of the investigator's findings and that this application has serious implications for the future operation of investigations under Part 3A. The applicant contends the investigation conducted was out of all proportion to the seriousness of the conduct alleged and that investigative 'overkill' could make the system unsustainable in the longer term. She seeks disclosure of the cost of the investigation as a prerequisite for forming an opinion on whether the investigations are providing value for money. 65 Mr Howell says that if the Tribunal upholds the exemptions claimed in this case, child protection investigations would be largely immune from scrutiny. If investigations are not open to scrutiny by those affected by them, the effectiveness and the credibility of child protection investigations will decline. Clause 10 66 Mr Howell says that to assert the claim for privilege the University must establish the following elements for each document: (i) a solicitor-client relationship; (ii) communications in confidence; and (iii) the dominant purpose for which the document came into existence was that obtaining or giving of legal advice. 67 There is a factual dispute about Mr Kelly's status. The applicant asserts that while Mr Kelly was an agent in one sense, he was not an agent for the purposes of the University receiving legal advice. His role was to be independent. Mr Howell submits that it is the role that he actually played, not his legal classification that is significant. 68 Mr Howell made detailed submissions with respect to the inferences that he says can be drawn from the circumstances of the investigation and the documents that have been released. He says that the dominant purpose for which the documents came into existence was that of discharging the University's legal obligation to investigate, not for the purpose of legal advice. He says that several categories of the documents are not covered by privilege, as they fail the confidentiality and dominant purpose tests. These include all communications with witnesses; all witnesses' statements and the investigation reports; all documents on which the reports sent to the Ombudsman were based; and all documents concerning the handling of the investigation. 69 He also submits that while the University appointed an outside investigator to conduct the investigation then chose to use its solicitors to liaise with him, this liaison role did not require legal knowledge. A secretary could have performed it. In smaller agencies with no in-house solicitor, someone else would perform the role. He says that the class of documents for which privilege may be claimed is not enlarged merely because there was an administrative convenience for the University in having the liaison role performed by its solicitor. Relaying information to and from the investigator in order to allow him to manage the investigation does not fall within the solicitor-client relationship. Mr Howell contends that the communication would only fall within the solicitor-client relationship when it raised an issue on which the university needed to consider its legal obligations, or if Mr Kelly needed such advice. He argues that most of the documents were created only for the purposes of the investigation, and none would exist but for the investigation. The documents were created for the dominant purpose of discharging the University's legal obligation to investigate, not for the purpose of legal advice. 70 Mr Howell also submits that the University was legally obliged to investigate and that once the conduct was found to be reportable by the investigator, the University came under an obligation of disclosure to the Ombudsman. It also became potentially liable to the Ombudsman monitoring the investigation and that would give the Ombudsman access to the evidence. Accordingly, he says, from the time the complaint arrived it was apparent that every communication between the University and Mr Kelly, or between either of them and the witnesses, was open to being disclosed to the Ombudsman. He further argues that if the Ombudsman had agreed to the take over the investigation the University would not have been entitled to withhold the documents. To uphold the University's claim would be to find that the simple device of using a solicitor to hire the investigator could stymie the Ombudsman's power of supervision. 71 Mr Howell submits that confidentiality, as it applies to privilege, implies a restriction on divulging or using the information to the detriment of the person imparting the confidence. The Ombudsman's powers to divulge information could operate to the detriment of the University. Therefore, he submits, it cannot be said that the Ombudsman received information under a duty of confidentiality, such that any privilege was maintained. 72 Mr Howell also contends that certain documents are not privileged because Ms O'Brien and Mr Kelly had an improper purpose of damaging the applicant. He says that there is sufficient evidence to allow the Tribunal to find that some of the documents are likely to have been created for an improper purpose. He cannot say exactly which documents fall within this category. He says that Mr Kelly and Ms O'Brien had the improper motivation of damaging the applicant when they discussed her on 15th March 2005. That discussion occurred about 2 weeks after the applicant had complained to the Ombudsman about the conduct of Mr Kelly and Ms O'Brien and is evidenced in an extract contained in the Ombudsman's Assessment. Mr Howell says that the most likely explanation for the conversation of 15th March was that Mr Kelly and Ms O'Brien agreed to a course of action designed to smear the applicant and damage her through the issue of a direction for her to cease doing things she had not actually done. 73 Mr Howell submits that Tribunal should consider whether the initial appointment of Mr Kelly was an intentional sham designed to generate a claim for privilege. This would be a separate improper purpose affecting a small number of documents including communications with the external solicitors. 74 The applicant also contends that even if the privilege attaches to the withheld documents, it has been waived. Mr Howell submits that if the Tribunal finds communications between the University and its solicitors, whether internal or external, to be privileged, but agrees with the applicant that Mr Kelly was independent of the University for the purposes of privilege, then the disclosure to Mr Kelly of those communications would constitute a waiver of privilege in those documents. 75 Mr Howell urges the Tribunal to infer from any failure to call Ms O'Brien and Mr Kelly that their evidence would not assist the University. Accordingly, it should find that the University has failed to discharge the onus of proving any fact that depends on assertions in a document authored by them, unless other corroboration is available. Clause 6 76 The applicant does not seek information about the boy that relates to his medical condition or behaviour prior to the date of the incidents investigated. She does seek any information about medical or behavioural problems that the boy's mother claimed resulted from the incidents. She does not seek contact information for any of the witnesses. 77 The applicant contends that the statements by staff were provided voluntarily in the sense that no one was forced by legal action or formal direction to comply. However, staff did have a legal obligation to provide information, though the obligation ended for some staff when their employment ceased. Those accused had no real option but to defend themselves. Mr Howell says that the staff were commenting about incidents that occurred at work, at the request of their employer. They were questioned about actions taken in front of other staff members and, in part, in front of students at the school. In no sense were these actions private. Their accounts would entirely concern how they discharged their duties as employees. If statements were made about feelings, reactions and so on, they would have been in the context of explaining their performance at work. The main issues with which the staff statements would deal are actions taken, with personal reactions being merely incidental. 78 Mr Howell says that the boy's mother had referred to 'breaches of legislation' and the boy's carer had referred to court action. The staff therefore disclosed information in the knowledge that the complaint may well go further, at which stage some personal information was likely to be disclosed. There was no reason for them to mention personal information unless they wished to use it as part of a complaint about the school. Mr Howell also submits that when a person chooses to use otherwise personal information for the purpose of provoking action against those other people, the personal context disappears. He says that in the circumstances it is reasonable to release any personal information of the kind sought. He says that although Mr Pitt and Mrs Graham do not wish their statements disclosed, rectifying the damage that the applicant has suffered through not being provided with procedural fairness outweighs any concerns for Mr Pitt's and Mrs Graham's views. Clause 7 79 The applicant concedes that the information that is the subject of the Clause 7 Business Affairs exemption claim is information concerning the business, professional, commercial or financial affairs of Lee Kelly & Associates Pty Ltd. The applicant does not seek information about Mr Kelly's hourly rate, the fees charged for each task nor the time taken on each task. However, she says that the release of the limited information sought would have no adverse effect, because the total cost gives no indication of the investigator's charge-out rate. 80 Mr Howell submits that whether any adverse effect is unreasonable in part depends on the interests that are served by disclosure. In the public interest, the total cost of investigations should always be disclosed. Investigations will undoubtedly add to the cost of protecting children. Whether this is cost-effective is yet to be seen. An opinion on the cost effectiveness of an investigation cannot be formed without disclosure of its total cost. Clause 13(b) 81 As stated above Mr Howell submits that from the time the complaint arrived it was apparent that every communication between the University and Mr Kelly, or between either of them and the witnesses, was open to being disclosed to the Ombudsman. He further submits that the Ombudsman did not receive information under a duty of confidentiality. Any requirements for confidentiality existed during the investigation. However, the investigation had concluded before this FOI request was made. Mr Howell says that the Tribunal should be wary of investigators inducing claims for confidentiality when approaching witnesses. Such assurances cannot properly be given, and to uphold them would allow investigator's to avoid scrutiny. 82 With respect to the issue of whether there are reasonable expectations that the future supply of information will be prejudiced, Mr Howell says that the information in question is knowledge of the circumstances giving rise to a reportable allegation. He says that the employer can direct staff members to provide such information and in that regard he referred to the views expressed by Dixon J said in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-622: If a[n employer's] command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. 83 Mr Howell says that the issue in this matter was never whether staff had to tell their employer what had happened. The dispute concerned the method by which that should be done, and in particular whether once staff had done that through written statements, they should submit to taped interviews when the complainant herself declined to do so. He contends that an employee who has information that implicates an accused staff member in wrongdoing may well fear being identified as the source of the information. However, employees prone to such fears could never be sure they would not be identified, for the information they possess could well lead to court proceedings at which they would be potential witnesses. Conversely, employees are unlikely to withhold information that exonerates a staff member who is the subject of a reportable allegation. 84 Mr Howell further says that the only person involved in this investigation with whom the applicant still works is Ms Green and she has no objection to the release of information to the applicant. Ms George is the only one of those involved who still works at MUSEC and she also has no objection. He says that because of the particular circumstances, upholding the exemptions claimed in this matter is unlikely to have any adverse effect on the future flow of information. 85 Mr Howell asserts that there is a strong public interest in release of the information in matters of this kind, regardless of the circumstances of this case. There is a public interest in individuals having access to documents containing decisions about them. Findings 86 I have been asked to determine whether document 80 falls within the scope of the FOI application. In my view, this document is outside the scope of the application as it is excluded by the clarification provided by the applicant's solicitor in his letter dated 14 September 2005. It is an account of an incident that does not deal with the applicant's conduct. Findings with respect to document 59 - personal affairs 87 Document 59 contains the boy's medical details. Mr Howell says that these details are not sought but he seeks information about medical or behavioural problems which the boy's mother claimed resulted from the incidents. In my view, Document 59 falls outside the scope of the application. Nevertheless, if I am wrong on that assessment I am satisfied that it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the boy's personal affairs and is exempt from release pursuant to clause 6 of Schedule 1 to the FOI Act. Findings with respect to business affairs 88 The University asserts that documents 32 and 38 concern the business affairs of Lee, Kelly & Associates Pty Ltd and are exempt from release pursuant to clause 7 of Schedule 1 to the FOI Act. 89 The applicant concedes that these documents contain information concerning the company's business, professional, commercial or financial affairs. However, Mr Howell says that what he wants is the total cost of the investigation and the dates and times at which Mr Kelly performed each task of the investigation. He submits that the information sought would have no adverse effect because it gives no indication of the investigator's charge out rate. He further submits that the information should be disclosed in the public interest. 90 I agree with the parties that the documents satisfy the first limb of clause 7(1)(c). The issue for determination is therefore whether the disclosure of the information could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. 91 In my view, it is reasonable to expect that the disclosure of the information contained within these documents would enable the company's competitors to understand and perhaps undercut the company's pricing strategy. I agree with the University that this satisfies the second limb of clause 7(1)(c). However, in my view it is practicable to give access to a copy of the document from which information has been deleted and thereby remove the adverse effect that might otherwise result to the company. 92 Each of these documents is in similar format. There is a covering letter, a Tax Invoice and a Timesheet. In my view the personal account details should be deleted from the covering letter, the 'QTY' and 'RATE' columns should be deleted from the Tax Invoice, and the 'TIME' column should be deleted from the Timesheet. 93 In my view, the disclosure of the information in the amended form would not reasonably be expected to prejudice the future supply of such information. 94 Subject to any other claim for exemption, it is my view that these documents should be releases in the amended form. Findings with respect to legal professional privilege 95 Legal professional privilege is a rule of substantive law, which enables a person to resist the giving of information or the production of a document which would reveal 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 Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [11]. 96 The current state of the law as it relates to legal professional privilege is discussed at paragraphs [25] to [29] and [45] - [49] of the Appeal Panel decision. I adopt the summary provided by the Appeal Panel. It serves no purpose to repeat it here. 97 The issue for determination is whether or not legal professional privilege attaches to the withheld documents. If the documents are privileged it is also necessary to determine whether or not there was an improper purpose that would defeat the legal professional privilege claim or whether the privilege has been waived. 98 I agree with the view expressed at paragraph 38 of the Appeal Panel decision that litigation privilege does not arise for consideration: The position had not been reached of 'anticipated litigation' in the narrow sense in which this term is used when a claim to 'litigation' privilege is being assessed: there had not, for example, been any formal complaint lodged with an antidiscrimination body or a formal statement made that such a course was to be pursued. 99 Accordingly, this assessment is by reference to the principles governing legal advice privilege. I agree with Mr Howell that legal professional privilege will not attach to the withheld documents unless for each document there existed (i) a solicitor client relationship; (ii) communications in confidence; and (iii) the dominant purpose for which the document came into existence was that obtaining or giving of legal advice. 100 I have indicated above that an issue of estoppel was raised with respect to document 33. It is an email from the University Solicitor to Geoff Kelly recording developments in the investigation. I note that both the Tribunal decision and the Appeal Panel decision considered 'document 15' which is the same document referred to as Document 33 in these proceedings. In the Tribunal decision the Judicial Member stated: 26 Document # 15 is a similar communication by the Respondent's legal advisor to the person who was undertaking the investigation at the Respondent's request. It narrates factual developments in the course of that investigation and for the reasons just expressed it also properly falls within clause 10. Editing of exempt matter is not reasonable practicable. 101 The Appeal Panel stated: 61 In our view, the position is not as clear in relation to document 15. This document is an email communication between the University solicitor and the investigator dated 23 March 2005. We doubt whether advice privilege can be raised in relation to that document. It may be that the Tribunal considered this document to be privileged on the basis of litigation privilege. Our provisional view is that neither basis is applicable. In our final orders we have reserved this document for further consideration. If it is found, on reconsideration, to be exempt, we will not reopen the improper purpose claim. We deal with another aspect of the question of leave at the end of these reasons. 102 While I do not need to consider Document 33, I note that several of the documents that are the subject of this application are also communications between the University solicitor and the investigator. I do not consider that relaying information to and from the investigator in order to allow him to manage the investigation falls within the solicitor-client relationship. Advice privilege cannot be raised in relation to those documents. 103 Of more fundamental significance is the issue of the dominant purpose for which the documents were created. In this regard, I agree with Mr Howell that Mr Kelly was not an agent for the purposes of the University receiving legal advice. His role was to be independent of the University conducting what was essentially an investigation. While the University chose to use its solicitors to liaise with him, this liaison role was an administrative one and did not require legal knowledge. Subject to the exceptions to which I will refer below, it is my view that the documents were created for the dominant purpose of discharging the University's legal obligation to investigate, not for the purpose of legal advice. 104 It is reasonable for a party to obtain the assistance of experts to enable the giving of legal advice. I accept that advice privilege can extend to communications relating to expert advice that is necessary in formulating a request for legal advice and in providing legal advisers with sufficient understanding of the facts to enable that advice to be given (see for example Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 where a report had come into existence for the dominant purpose of enabling the party to communicate with its lawyers to seek legal advice). However, in order to attract privilege the expert's assistance must be sought for the dominant purpose of legal advice. That is not the case in the circumstances of this matter. Most of the documents were created only for the purposes of the investigation, and none would exist but for the investigation. It is my view that they were not communications within a solicitor-client relationship for the purpose of legal advice. 105 I do not consider that advice privilege can be raised in relation to the communications with witnesses; witnesses' statements; the investigation reports; the documents on which the reports were based; or the documents concerning the handling of the investigation. I therefore do not agree with the University's assertion that the clause 10 exemption applies to all of the documents in relation to which it is asserted. In my view, the clause 10 exemption applies as follows: Document 3 insofar as it contains the record of communications between the University Solicitor and Jacquie Seemann of Minter Ellison. Document 14 is an email from the University Solicitor to Geoff Kelly and Jacquie Seemann of Minter Ellison dated 20 December 2004. In the email the University Solicitor seeks advice from Jacquie Seemann. Document 21 insofar as paragraphs 3 and 6 contain the record of communications between the University Solicitor and Minter Ellison. Document 43 insofar as it contains the record of communications between the University Solicitor and Jacquie Seemann of Minter Ellison. Documents 73 - 79. The memoranda and emails contain advice given in relation to the University's legal obligations and rights and make reference to further instructions. 106 In my view each of these documents has a clear nexus with the ongoing assistance, of a legal nature, that the legal advisor was rendering to the University and is therefore subject to legal advice privilege and exempt from release pursuant to clause 10 of Schedule 1 to the FO Act. Editing of the exempt matter is reasonably practicable in regard to Documents 3, 14, 21 and 43. It is not reasonably practicable in regard to Documents 73 - 79. 107 Although there had been extensive reference to 'improper purpose' in the submissions presented by Mr Howell, this is a case where it would be necessary to draw inferences of improper purpose from the surrounding circumstances. I do not agree with Mr Howell's submission that such an inference should be drawn. It is my view that the 'improper purpose' assertions are unsustainable. Nor do I accept that the University adopted an approach of having Mr Kelly briefed by Minter Ellison as a device designed to manufacture a claim for legal professional privilege. 108 It is also my view that the evidence does not support the alleged waiver of the privilege. The High Court in Mann v Carnell (l999) 201 CLR 1 referred to the principle that legal professional privilege exists to protect the confidentiality of communications between lawyer and client and that waiver is brought about by the inconsistency between the conduct of the owner of the privilege and maintenance of the confidentiality. In the circumstances of this matter I do not consider that there is any inconsistency between the conduct of the University and maintenance of the confidentiality. Personal affairs 109 The University has asserted an exemption pursuant to Clause 6 of Schedule 1 to the FOI Act in respect of Documents 26, 27, 35, 37, 44, 48,50, 55, 57, 59, 70 and 80. I have already indicated that I consider that Documents 59 and 81 fall outside the scope of the FOI request. 110 I have considered each of the documents over which this exemption is asserted. I have also considered other documents that in my view contain personal information. In my opinion the following documents contain information which is within the scope of the exemption in Clause 6 of Schedule 1 to the FOI Act: Document 16 at paragraph 5 contains personal information with respect to the boy, the boy's mother and the boy's carer Document 27 at paragraphs 8 - 14 and 28 contains personal information with respect to the boy, the boy's mother and the boy's carer Document 34 contains the personal contact details of Glenys O'Riley. Document 35 at paragraph 2 contains personal information with respect to Glenys O'Riley's personal domestic circumstances. Document 37 contains the personal contact details of Kyle Pitt. Document 44 (i) Report in relation to Sally Howell Paragraph 2.6 on page 3 contains personal information with respect to the boy Paragraph 5 on page 10 contains personal information with respect to Sally Howell Paragraph 8.3 on page 11 contains personal information with respect to the boy, the boy's mother and the boy's carer (ii) Report in relation to Kyle Pitt Paragraph 2.6 on page 3 contains personal information with respect to the boy Paragraph 5 on page 10 contains personal information with respect to Kyle Pitt Paragraph 8.3 on page 11 contains personal information with respect to the boy, the boy's mother and the boy's carer Documents 48 at paragraphs 8 - 14 and 28 contains personal information with respect to the boy, the boy's mother and the boy's carer. Documents 50 at paragraph 13 contains personal information with respect to the boy, the boy's mother and the boy's carer. Document 55 at paragraphs 2 - 6 contains personal information with respect to Felicity Graham. Document 57 at paragraphs 2 - 4 contains personal information with respect to Glenys O'Riley. Document 63 at dot points 1 - 3 on page 1 contains personal information with respect to the boy Document 68 contains the personal contact details of Kyle Pitt. Document 70 at numbered paragraphs 1 - 5 contain personal information with respect to Ann George. Document 71 at dot points 1 - 3 on page 1 contain personal information with respect to the boy Document 80 at paragraphs 4 - 5 contains personal information with respect to Ivy Green. 111 I note that the applicant does not seek personal information of the kind that is contained in the documents. It follows in my view that the information that I have identified is outside the scope of the application. Nevertheless I am of the view that its disclosure would be unreasonable and it should be deleted from any documents that are released to the applicant. Editing of the exempt matter is reasonably practicable in regard to each of these documents. Confidential material 112 The University has asserted an exemption pursuant to Clause 13(b) of Schedule 1 to the FOI Act in respect of Documents 5-8, 10, 16-20, 23, 26-28, 32, 35, 37, 38, 44, 48-50, 55, 57, 58, 60 and 70. 113 In order to establish that these documents are exempt pursuant to Clause 13(b) the University must show that the relevant information was obtained in confidence, and that disclosure could reasonably be expected to prejudice the future supply of information, and would, on balance, be contrary to the public interest. 114 Mr Howell contends that neither Mr Kelly nor the Ombudsman received information under a duty of confidentiality and that any requirements for confidentiality that did apply only existed during the course of the investigation. The evidence from the applicant supports the submission that the issue of confidentiality was not discussed with her. The University says that it is clear from the circumstances of the investigation that material was obtained in confidence. 115 It is a matter of evidence whether the circumstances of the case indicate that information is obtained in confidence. In my view the evidence in this matter suggests that in fact Mr Kelly conducted the investigation in a manner that ensured the confidentiality of the information that he received. Indeed, one of the most contentious issues between the parties arises from an assertion, which the applicant denied, that the applicant was speaking to the other witnesses during the investigation. The University Solicitor and the University's external legal advisers sought to maintain circumstances where confidentiality would be preserved. 116 The Ombudsman's Guidelines place a heavy emphasis upon maintaining confidentiality of the information provided in the investigation and Mr Kelly represented that the investigation would be conducted in accordance with the Ombudsman Guidelines. With respect to the documents relevant to this asserted exemption it is my view that it is probable that the information that Mr Kelly received from the witnesses was obtained in confidence. It is also my view that the reports that the University received from Mr Kelly were obtained in confidence. This view is consistent with that taken in Watkins v Chief Executive, Roads and Traffic Authority and in TW v TX. 117 I have considered each of the documents in regard to which the clause l3(b) exemption is asserted. In my view, the first limb of clause l3(b) is satisfied in relation to documents 5-8, 27, 44, 48, 48, 50, 55, 57, 58, 70 and 80. Documents 5-8 contain risk analysis, which in my view was probably provided in confidence by Mr Kelly to the University. Document 40 contains Reports, which in my view were probably provided in confidence by Mr Kelly to the University. The remaining documents in this category are either witness statements or file notes recording witness statements, which in my view were probably provided in confidence to Mr Kelly. In my view the remaining documents over which the clause l3(b) exemption is asserted were not obtained in confidence. 118 In relation to documents 5-8, 27, 44, 48, 48, 50, 55, 57, 58, 70 it is necessary to determine whether the disclosure of the information that was obtained in confidence could reasonably be expected to prejudice the future supply of such information and if so whether it would, on balance, be contrary to the public interest. 119 I note that of the witnesses that provided information to Mr Kelly, Mr Pitt and Mrs Graham do not wish their statements disclosed. This is a factor that must be taken into account in determining these issues. 120 The University contends that those who provided the information expected it to be treated as confidential and not disclosed to third parties. It says that disclosure is likely to lead informers in future to fear the adverse consequences of the University's possible disclosure of the information they supply to third parties. The University also says that the concern about an adverse effect upon the flow of information to responsible agencies is heightened in cases where the welfare of children is at stake and that the public interest in protecting the -welfare of children requires that an agency must be able to carry out an investigation unimpeded by having to disclose information received in confidence during or after the investigation. 121 In contrast, Mr Howell says that because of the particular circumstances, disclosure of the information is unlikely to have any adverse effect on the future flow of information. He submits that every communication between the University and Mr Kelly, or between either of them and the witnesses, was open to being disclosed to the Ombudsman. He says that the University could direct staff to provide information of this kind and the potential also existed that the matter could lead to court proceedings in which they might be called as witnesses. The staff therefore disclosed information in the knowledge that the complaint may well go further and so they could never be sure that they would not be identified or that the information that they provided would not be released. He contends that in any event an employee is unlikely to withhold information that exonerates a staff member who is the subject of a reportable allegation. This argument is relevant to the information provided by individuals who are no longer staff. Similarly, disclosure of the information is unlikely to have any adverse effect on complaints to the University. 122 The applicant asserts that there is a strong public interest in the release of the information in matters of this kind, and that there is a public interest in individuals having access to documents containing decisions about them. 123 I agree with the applicant's argument that because of the particular circumstances, disclosure of the information is unlikely to have any adverse effect on the future flow of information. For the reasons argued by Mr Howell it is my view that the second limb of Clause 13(b) is not satisfied. It follows that documents 5-8, 27, 44, 48, 48, 50, 55, 57, 58, 70 are not exempt from release pursuant to Clause 13(b) of Schedule 1 to the FOI Act. Conclusion 124 In summary, to the extent that I have not determined otherwise it is my view that the documents that have been identified as falling within the scope of the FOI application should be released. 125 For completion I note that it is my view that the search undertaken by the University was sufficient and the University is not required to undertake further searches in relation to this application. Public Interest Override 126 Until recently there has been considerable debate with respect to the issue of whether the Tribunal has what is commonly referred to as a "public interest override" if it determines that the documents should be classed as exempt documents. The matter has now been resolved by Nicholas J in his recent decision in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362. He stated at paragraphs [102] - [103]: "102 In my opinion s 63 ADT Act provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it. 103 It follows that with respect to the overriding discretion issue I respectfully disagree with the conclusion expressed in Neary (para 83) that it is not open to applicants for review to seek an order, purportedly in exercise of powers conferred by s 25 FOI Act that a Minister or agency release an otherwise exempt document. In my respectful opinion the following passage from Mangoplah correctly states the position: "85 Consistent with this jurisprudence, absent any special limitation on the Tribunal's review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act - indeed the duty - when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it". 127 This decision was handed down after the parties had closed their submissions in this matter. I note that the parties' submissions touched on the issue of the public interest however in light of the decision in University of New South Wales v Gerard Michael McGuirk I think it is appropriate that they have an opportunity to present further argument with respect to how the Tribunal's discretion should be exercised. The matter should be set down for further directions in respect of the outstanding matters, on 22 May 2007 at 9:30 am. DECISION The matter is to be set down for further directions on 22 May 2007 at 9:30 am.
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.
Howell
Macquarie University
(1986) 64 ALR 97
(1993) 31 NSWLR 606
(2002) 213 CLR 543
(1990) 170 CLR 649
(1938) 60 CLR 601
(1999) 46 NSWLR 681
(1986) 79 ALR 448