This is an application for review of a decision made by the Department of Premier and Cabinet ("the Department") which refused to provide access to documents sought by NuCoal Resources Ltd ("NuCoal") under the Government Information (Public Access) Act 2009 ("the GIPA Act").
The information which had been sought by NuCoal was described as:
Only emails (in the period from 1 January 2013 - 15 February 2014) from Premier's Chief of Staff (Peter McConnell/Anna McPhee) to or from the remaining persons named in the table below and relating to or considering the cancellation, suspension or revocation of EL 7270.
The table mentioned in the request named six people, including the Premier and General Counsel of the Department.
The Department identified two documents as coming within the ambit of NuCoal's request - documents A1 and A2. On 13 December 2016 access to document A1 was refused on the basis that the document contains confidential legal advice from the Department's General Counsel. Access to document A2 was refused on the basis that the document is a Cabinet document.
NuCoal sought a review of that decision by the Information Commissioner and questioned whether there were more documents within the scope of the request that had not been identified by the Department. On 24 February 2017 the Information Commissioner issued a report in which she was satisfied that the information in document A2 is Cabinet information. The Information Commissioner was not, however, satisfied that client legal privilege attaches to the information in document A1 and recommended that a new decision be made in relation to that document. The Commissioner was satisfied that sufficient searches had been undertaken to locate information within the scope of NuCoal's request.
On 31 March 2017 the Department made a new decision by way of internal review with respect to document A1. That decision was to refuse to provide access to document A1 as the information is subject to client legal privilege. The Department also decided not to waive privilege.
NuCoal now seeks review by the Tribunal of the decision to refuse access to document A1.
[2]
Legislative framework
The object of the GIPA Act, as set out in s 3, is to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act.
There is a general public interest in favour of disclosure of government information: s 12 GIPA Act. However, there can be an overriding public interest against disclosure. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure:
13 Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure
Section 14 of the GIPA Act sets out the public interest considerations against disclosure that may be taken into account in determining whether there is an overriding public interest against disclosure. Under s 14(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 of the GIPA Act.
Clause 5 of Schedule 1 relevantly 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.
Where clause 5(1) of Schedule 1 to the GIPA Act is satisfied, there is a conclusive presumption of an overriding public interest against disclosure. The Tribunal has no discretion as to whether or not there is an overriding public interest against disclosure. The Applicant has no statutory entitlement to be provided with government information where there is an overriding public interest against disclosure: Saggers v Environment Protection Authority [2014] NSWCATAD 37 at [83].
The principle of legal professional privilege as it applies in the context of applications under the GIPA Act is well established. The weight of authority is that legal professional privilege under the GIPA Act refers to the concept as defined in the Evidence Act 1995: Larsson v Office of Environment and Heritage [2014] NSWCATD 136 at [25]; Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 at [61].
The essential elements of client legal privilege as set out in sections 118 and 119 of the Evidence Act are:
the existence of a client and lawyer relationship;
the confidential nature of the communication or document; and
the communication or document was brought into existence for the dominant purpose of either, (a) enabling the client to obtain, or the lawyer to give, legal advice or provide legal services, or, (b) for use in existing or anticipated litigation.
Section 117 of the Evidence Act, which defines "client" to include an employer of a lawyer if the employer is a State or a body established by a law of a State, confirms that in-house lawyers and their internal client may be subject to a claim of client legal privilege. The provision of advice by in-house lawyers in a government department has been held to be within the terms of s 117 (see, for example, Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 and Gauci v Commission for Fair Trading NSW [2015] NSWCATAD 218). It is important to note that in-house lawyers must possess the requisite independence in respect of the advice being given: Seven Network Ltd v News Ltd [2005] FCA 142.
Document A1, which is said to be subject to client legal privilege, is an email chain. The document contains advice given by Mr Paul Miller on 17 December 2013 in his then capacity as General Counsel, Department of Premier and Cabinet to the Secretary of the Department.
Ms Karen Smith, Deputy Secretary, Cabinet and Legal, Department of Premier and Cabinet has provided an affidavit in these proceedings. Prior to her current role, Ms Smith was the Executive Director, Legal Branch of the Department from December 2010. She states that the Legal Branch of the Department is responsible for providing legal advice and services to the Premier, Secretary of the Department and the Department. The Cabinet and Legal Group comprises the Legal Branch and the Cabinet Branch of the Department. At the time the emails were written, the Cabinet and Legal Group was known as the Office of General Counsel and did not include the Cabinet Branch. At the time, the Deputy Secretary, Cabinet and Legal was known as the General Counsel.
Ms Smith describes the structure of the Legal Branch and the obligations placed on lawyers within the Branch. She refers to the Department's Code of Conduct for staff dated May 2016 which, in effect, amongst other things, states that all staff must provide honest and impartial advice. The Code of Conduct also provides that staff must maintain the confidentiality of official information. Ms Smith also states that lawyers within the Legal Branch must maintain a current practicing certificate and abide by the confidentiality requirements imposed upon them as a member of the legal profession. They also must ensure their professional independence.
Ms Smith states that, in her experience, it is understood that communications between the Legal Branch and its clients within the Department and the Premier take place under conditions of confidentiality.
While the Code of Conduct referred to by Ms Smith clearly post-dates the communication the subject of this application, I accept her evidence, given her tenure within the Branch, that lawyers within the Branch are independent and that communications are generally confidential.
Ms Smith also states that, in her view, document A1 is a confidential communication from the Office of General Counsel for the dominant purpose of the provision of legal advice to the Crown in right of New South Wales and that it also reflects the substance of legal advice that has been given.
[3]
Order
1. The decision under review is affirmed.
[4]
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: 07 June 2018
NuCoal Resources Ltd v Department of Premier and Cabinet [2017] NSWCATAD 245 | Case summary | Zoe
Ms Smith also points to a footer to the email from the Office of General Counsel which contains, among other things, a warning that the message may contain confidential or legally privileged information. The footer does not, of itself, establish that the contents of the email are subject to client legal privilege: Seven Network Ltd v News Ltd [2005] FCA 142 at [6].
NuCoal raises the question whether, as document A1 is an email chain, client legal privilege attaches to the whole document or only part of it. In Fenwick v Wambo Coal Pty Ltd (No. 2) [2011] NSWSC 353, after considering the position at common law, White J at [30] stated that under s 118 of the Evidence Act:
It is not only the primary record of the advice that is privileged if made for the requisite dominant purpose. Secondary material is also privileged if that material discloses the privileged confidential communication.
Having examined the document in question I am satisfied that the email from the General Counsel is a communication between a lawyer and his client and that the communication was sent in confidence. I am also satisfied that the dominant purpose of the email was to enable the General Counsel to provide legal advice to his client, the Secretary of the Department and the Premier. The claim for client legal privilege in relation to that email is made out.
As to the other emails in the chain, it is apparent from a reading of the document that they refer to and disclose the information in the email from the General Counsel and are thus also privileged.
As noted above, where clause 5(1) of Schedule 1 to the GIPA Act is satisfied, there is a conclusive presumption of an overriding public interest against disclosure and the Tribunal has no discretion with regards to release of the documents. Document 1A therefore cannot be provided to NuCoal. In the circumstances, the correct and preferable decision is to affirm the decision under review.