Larsson v Office of Environment and Heritage

NCAT Administrative and Equal Opportunity|2014-09-12

reasons for decision 1This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act").. On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. But because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule). 2By an Access Application under the Government Information (Public Access) Act 2009 ("the GIPA Act") to the Office of Environment and Heritage ("OEH") dated 23 July 2013 the Applicant sought access to the following: Copies of any/all legal advice* to OEH on the issue of hunting in National Parks *Correspondence in and out 3He subsequently modified his request to seek advice for the period 30 May 2012 to 27 July 2013. 4The Respondent's Right to Information/Privacy Officer, Dr Racho Donef, determined the access application. Dr Donef identified 50 documents falling within the scope of the modified request for access. The documents were identified in the "Schedule of Documents" that forms part of the decision. He decided to refuse to provide the Applicant with access to the information sought on the basis that there is an overriding public interest against its disclosure. He found that all of the documents were the subject of legal professional privilege. Dr Donef also found that at least two documents were also Cabinet documents. 5Dr Donef found that the withheld documents were subject to legal professional privilege and access was refused in full pursuant to clause 5 of Schedule 1 of the GIPA Act. The Respondent gave consideration to waiving the privilege but decided to maintain the privilege. Dr Donef also determined that the two documents identified as Cabinet documents were to be withheld them on the basis that there is an overriding public interest against disclosure of the information pursuant to clause 2 of Schedule 1 of the GIPA Act.

Issue before the Tribunal 6Is there an overriding public interest against disclosure of the information sought by the Applicant in terms of the GIPA Act? 7The Respondent contends that there is a conclusive presumption of an overriding public interest against disclosure, as the information sought would be privileged from production in legal proceedings on the ground of client legal privilege: section 14(1); Schedule 1, clause 5(1) of the GIPA Act.

The Applicable legislation 8The Tribunal's function on review under section 63 of the ADT Act is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 9The applicable provisions of the GIPA Act have been considered in a number of decisions of this Tribunal. In Chamley v Sydney Children's Hospital Network [2013] NSWADT 197 I summarised the GIPA Act provisions that are relevant to this matter and in doing so I adopted an earlier summary by Judicial Member Molony in the matter of Battin v University of New England [2013] NSWADT 73. 10The objects of the GIPA Act are set out in section 3(1) - In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. 11'Government information' is given a wide meaning (section 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in section 4. It includes "(c) a public authority." Public authority is in turn defined in Clause 2 of Schedule 4 to mean, among other things, "a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument". The Respondent is an agency to which the GIPA Act applies. 12The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (section 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (section 9). 13There will only be an overriding public interest against disclosure when the public interest test in section 13 is satisfied. It provides - There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 14Schedule 1 to the GIPA Act sets out information concerning which it is conclusively presumed that there is an overriding public interest against disclosure. Section 14(1) provides: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. 15The public interest considerations against disclosure are limited to those set out in the Table to section 14. Section 14(2) provides that - The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. 16clause 2 of Schedule 1 of the GIPA Act provides: 2 Cabinet information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as "Cabinet information" ) contained in any of the following documents: (a) a document that contains an official record of Cabinet, (b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet), (c) a document prepared for the purpose of its being submitted to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for which it was prepared (whether or not the document is actually submitted to Cabinet and whether or not the approval is actually given), (d) a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions, (e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet, (f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)-(e). (2) Information contained in a document is not Cabinet information if: (a) public disclosure of the document has been approved by the Premier or Cabinet, or (b) 10 years have passed since the end of the calendar year in which the document came into existence. (3) Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1). (4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would: (a) reveal or tend to reveal information concerning any Cabinet decision or determination, or (b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet. (5) In this clause, "Cabinet" includes a committee of Cabinet and a subcommittee of a committee of Cabinet. 17Clause 5(1) of Schedule 1 to the GIPA Act provides: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5. 18If the withheld information falls within the scope of one of the clauses of Schedule 1, then there is no need to balance the public interest factors in favour of disclosure. If the withheld information does not fall within the scope of one of the Schedule 1clauses, then it will be necessary to determine whether the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. 19The GIPA Act establishes a principle that there is pubic interest in favour of disclosure (section 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides - Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct 20Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It provides: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 21In considering whether there is an overriding public interest against disclosure section 16 provides that the following principles apply - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 22Because the Respondent bears the onus of justifying its decision to refuse the Applicant access to the withheld information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure: section 105(1) GIPA Act. 23Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides - (1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. ...

Legal privilege 24The law in relation to claims for client legal privilege is clear. For a summary of the principles see Priest v State of New South Wales [2006] NSWSC 1281 from paragraph [21]. See also the summary by Judicial Member Molony in Battin v University of New England [2013] NSWADT 73. I discussed this in my decision in Saggers v Environment Protection Authority [2014] NSWCATAD 37. I will not repeat that discussion here. 25There has been some debate within the Tribunal as to whether the reference in clause 5 of Schedule 1 to the GIPA Act to "client legal privilege (legal professional privilege)" is intended as a reference to that concept as it appears in Part 3.10 of the Evidence Act 1995 or, alternatively, to legal professional privilege as recognised at common law. The Tribunal decisions support the application of the Evidence Act test in cases such as the present. 26The onus of establishing the claim for client legal privilege falls on the party asserting or claiming the privilege and is met by establishing the facts giving rise to the claim. 27Where issues are raised in regard to the purpose behind the creation of the disputed documents and whether that purpose was improper, it is for the party raising the issue to present evidence to support the claim.

Evidence 28The applicant filed detailed submissions and evidence. 29The withheld documents have been provided to the Tribunal on a confidential basis. The documents are numbered "1" to "50" to correspond to the numbering given to them in the "Schedule of Documents" that formed part of the Respondent's decision. I have considered those documents. 30The Respondent also provided submissions and relies on an affidavit by Mr Andrew Macdonald, Principal Legal Officer in the Respondent's Legal Services Division. The parties agreed it was appropriate for the matter to be determined on the papers.

Mr Macdonald's evidence 31Mr Macdonald provided the following evidence in regard to the Respondent's Legal Services Division: Since the establishment of OEH as a stand-alone agency, the section of OEH which provides legal services has been the Legal Services Division. However prior to that, and at all times at which the documents the subject of this affidavit were created, that section was known as Legal Services Branch. In this affidavit, I will refer to the section as the Legal Services Branch, or LSB. LSB employs a number of solicitors, including me. Each solicitor employed by LSB holds a current practising certificate issued under the Legal Profession Act 2004 entitling them to practice as a solicitor in New South Wales. LSB officers are employed as solicitors by OEH, to provide legal advice and to conduct litigation. LSB solicitors have no responsibilities or roles within OEH in addition to their employed positions as solicitors. The LSB solicitors do not perform any functions for the OEH other than as solicitors. The remuneration of LSB solicitors is not connected in any way to the commercial or regulatory performance of the OEH. Physical location of LSB At all relevant times, LSB has been located on level 23 of the building at 59-61 Goulburn Street, Sydney. Level 23 is a secure level and access is controlled by electronic keys. The building at 59-61 Goulburn Street also houses the 'head office' of OEH spread over a number of floors. Organisational structure Solicitors in LSB are divided into two sections. The Litigation Section deals primarily with matters that are either presently litigated or may be litigated. The Legislation and Advice Section deals primarily with providing legal advice in response to formal requests for advice and providing advice on development of legislation and on policy issues. Solicitors within the Litigation Section report to the Manager Litigation. Solicitors within the Legislation and Advice Section report to the Manager Legislation and Advice. Both Managers report to the Executive Director Legal Services, the most senior person within Legal Services Branch. Lawyers within both Sections are divided into teams, each of which is headed by a Principal Legal Officer (sometimes described as "Principal Lawyers"). A team usually consists of between two and four lawyers. Apart from Principal Legal Officers, solicitors within LSB are designated as "Legal Officers" or "Senior Legal Officers" (sometimes described as "Senior Lawyers"), depending on their grade. At all relevant times, the Executive Director Legal Services reported to the Chief Executive of OEH. Within the Litigation Section is the Specialist Investigations Unit (SIU), headed by the Chief Investigator. SIU officers are not lawyers but are experienced investigators who conduct investigations into possible offences under legislation for which OEH is responsible, such as the National Parks and Wildlife Act 1974. Although SIU sits within the LSB structure, SIU officers have no role in the provision of legal advice or legal services and function as a separate unit, apart from oversight by Manager Litigation. File keeping LSB retains files in both electronic and hardcopy forms. Electronic copies of documents are retained on a drive that, apart from OEH's IT staff, can only be accessed by staff within LSB (being lawyers, administrative support staff and specialist investigators, all of whom are employed by OEH). Hardcopies of active LSB files are secured on level 23. Confidentiality Solicitors in LSB operate in an environment of confidentiality arising from the circumstances of their employment, occupation and duties as solicitors. The obligation to maintain confidentiality is well understood by solicitors within LSB. The obligation to maintain confidentiality applies to communications with the client, particularly in relation to providing of legal advice, whether responding to a formal request for advice or responding to requests for advice through the duty solicitor service. The obligation to maintain confidentiality over communications relates especially to communications with the client regarding current investigations and current litigated matters. Solicitors involved in matter the subject of the present proceedings The solicitors who have had some involvement with the matter the subject of the present proceedings and their position at the time of the creation of the documents the subject of these proceedings include: Steve Garrett (Executive Director Legal Services), Maryanne McCarthy (Manager Legislation and Advice), David Jeffery (Principal Legal Officer), Rebecca McKinlay (Principal Legal Officer), Marc Alias (Senior Legal Officer), Clare Cory (Senior Legal Officer), Cherie Pittman (Senior Legal Officer), Therese Tran (Senior Legal Officer) and Ryan Verzosa (Senior Legal Officer). At all relevant times, each of these solicitors was employed in the Legislation and Advice Section of LSB, with the exception of Mr Verzosa, who was employed in the Litigation Section. At all relevant times, each of these solicitors held a current NSW practising certificate issued under the Legal Profession Act 2004. 32Mr Macdonald also provided a general description of each of the withheld documents and the involvement of the particular legal officer. 33The Applicant concedes that some documents could be the subject of legal professional privilege. However, he submits that not all of the documents would attract that privilege. By reference to Mr Macdonald's description of the withheld documents, the Applicant contends that some of the documents are not and could not be the subject of legal professional privilege. The onus is on the Respondent to make good its claim for legal professional privilege. 34I have considered the withheld documents and I note that I agree that the description that Mr Macdonald has provided in regard to each document is an accurate one. 35As Judicial Member Molony observe in Battin, in some cases it will be obvious from an examination of the documents themselves that their dominant purpose was the provision of legal advice. That is the case in this matter. 36It is apparent from an inspection of the documents that documents numbered 10, 16 and 17 were also Cabinet documents. It is not apparent from the face of the document numbered 18 whether or not it is also a Cabinet document. I am satisfied that document numbered 35 is captured by the scope of the Applicant's request and it is clear that the dominant purpose of that document was the provision of legal advice. 37The Respondent submits that once it is accepted that any document falling within the scope of the request is properly the subject of client legal privilege, the combined effect of section 5 and Clause 5 of Schedule 1 to the GIPA Act is to create a conclusive presumption that there is an overriding public interest against disclosure of the information. It says that the words used in section 5 and clause 5 are very clear and do not invite any balancing of public interest considerations against a proper claim for legal professional privilege. 38I agree with that submission. 39Further, unless a decision is made to waive privilege, access to the documents must be refused. No decision was made to waive privilege in this case and that is a decision which is not reviewable by reason of clause 5(3) of Schedule 1 to the GIPA Act. 40The Applicant contends that the withheld information should be disclosed under the provisions of section 125 (1)(a) and (b) of the Evidence Act (Loss of client legal privilege: misconduct) and section 126D of the Evidence Act (Loss of professional confidential relationship privilege: misconduct). He contends that there are numerous examples of misconduct to support consideration of section 125 and 126D of the Evidence Act. 41The Applicant submits that there is no conclusive overriding public interest against disclosure in this case and that on the contrary, there is an overriding argument in favour of disclosure. By reference to section 12(2) of the GIPA Act, he submits that:

Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance: section 12(2)(a).
Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public: section 12(2)(b).
Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct: section 12(2)(e). 42The onus of establishing any waiver rests with the Applicant: see Shargade Pty Ltd v RAAF Landings [2008] NSWSC 151 per Rein AJ stated at paragraph 3(h): (h) The party claiming privilege does not bear the onus of excluding waiver of the privilege. Where it is alleged that privilege has been waived, the party alleging waiver carries the onus of establishing waiver: eg Nine Films & Television Pty Ltd v Ninox Television Ltd [2005] FCA 356; (2005) 65 IPR 442 at [21], Rich v Harrington [2007] FCA 1987 at [8]. As Campbell J said in Re Doran Constructions Pty Ltd (in liq) [2002] NSWSC 215; (2002) 194 ALR 101 at [117]: "It is the party who asserts that there has been a waiver who bears the onus of satisfying the court about each of the elements in s 122(2)". 43The Respondent submits that the Applicant has not discharged that onus in the present case. It says that the Applicant's material does not suggest that the legal advice was prepared in furtherance of a fraud or the commission of an offence by the Respondent as required by sections 125 and 126D of the Evidence Act. Similarly, the Respondent submits that the Applicant has not identified any deliberate abuse of power or abuse of process in the sense contemplated by section 125, let alone the way in which that abuse has been furthered by the preparation of the documents: see Van DerLee v New South Wales [2002] NSWCA 286 at [24], [61] and [68].

CONSIDERATION 44The documents identified by the Respondent were provided to the Tribunal. Having read those documents I am satisfied that each of the withheld documents falls within the scope of the application. 45I am also satisfied that it is clear from the face of the withheld documents that each of those documents falls within the scope of clause 5 of schedule 1 to the GIPA Act. 46The Applicant has pointed to a number of issues which he has asserted impact on the Respondent's privilege claim. However, I do not accept that either privilege did not attach to the documents or that privilege has been waived. 47Privilege can be lost by misconduct: see section 125 of the Evidence Act 1995. However, a mere allegation made by an applicant as part of a GIPA Act review is not enough. In Saggers v Attorney General's Department [2005] NSWADT 193 the Tribunal's President said at paragraph [36]: The malfeasance or misconduct must be of a gross kind, not one that may be no more than an administrative oversight in the course of a process which the Act clearly entitled the Government to undertake ... The case law does not stand for the proposition ... that a failure to remain within the boundaries of statutory power ... is enough to give rise to the loss of legal professional privilege. Much more is required. 48I am not satisfied that the Applicant has established any misconduct in the circumstances of this matter that would warrant a finding that privilege has been lost. 49Further, I am also not satisfied that there has been any waiver of the privilege: see sections 121 and 122 of the Evidence Act 1995. The only possible exception could be in regard to Document 19 which comprises print-outs of the slides in a "PowerPoint" presentation. Mr Macdonald's evidence was that the presentation was given by the Respondent's lawyers to officers of the Respondent's Specialist Investigations Unit. It was not delivered to anyone outside of the Respondent. In my view, this conduct was not inconsistent 'with the maintenance of the confidentiality which the privilege is intended to protect': see Osland v Secretary of the Department of Justice [2008] HCA 37 at [45] and Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1. That being the case, I am also not satisfied that there has been any waiver of the privilege. 50Pursuant to clause 5(2) of Schedule 1 of the GIPA Act, the Respondent to considered whether it would be appropriate for it to waive its privilege and determined not to do so. The Respondent's decision not to waive privilege is not a reviewable decision. 51If information falls within the scope of one of the clauses of Schedule 1 to the GIPA Act there is no need to balance the public interest factors in favour of disclosure. There is a conclusive presumption that the public interest does not favour disclosure of information of that kind. 52In this matter, there is a conclusive presumption that the public interest does not favour disclosure of the withheld documents. The Respondent's determination to refuse to disclose those documents is therefore the correct and preferable one and it should be affirmed. 53That being the case, it is not necessary that I also consider whether any of the documents also fall within the scope of clause 2 of schedule 1 to the GIPA Act.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 September 2014

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