Scully v Sydney Metro

Has the Respondent established that the access decision is justified?

1. The extent of legal professional privilege under the GIPA Act has recently been considered by the Appeal Panel in Wollondilly Shire Council v Styles [2024] NSWCATAP 104. At [51] - [52] the Appeal Panel held: 51. Based on s 117 and s 118 of the Evidence Act, the elements of a claim for legal professional privilege in this case are that there is a confidential communication between a client and a lawyer for the dominant purpose of the lawyer providing legal advice to the client. As the High Court said in Grant v Downs (1976) 135 CLR 674 at 689 "... in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence".
2. Young J's application of the caselaw to the facts in AWB (No 5) is also relevant here (at p 49): 56. … I am satisfied that Blakes, Minters and ABL were engaged professionally to provide legal advice and assistance within the scope of their respective retainers as described above. In each relevant context, I consider that it would be inappropriate and artificial to attempt to sever the factual investigations carried out by the lawyers from the legal advice they provided under their retainers. As I have said, a key purpose of those factual investigations was to enable Blakes, Minters and ABL to determine whether there was any evidence that AWB, or any of its employees, had made payments to Iraq in breach of the sanctions or engaged in any other wrongdoing in connection with its sale of wheat to Iraq. By that means, the three law firms placed themselves in a position to advise AWB as to the risks it confronted and the course of action it should take in relation to the investigations. 57. I do not see any reason why professional communications between AWB and its lawyers concerning the investigations by the IIC, the PSI, and the Commission should be incapable of attracting legal advice privilege. In these contexts, the concept of legal advice includes advice as to what AWB should prudently and sensibly do in connection with the relevant investigation. Advice of this kind is capable of attracting legal advice privilege, notwithstanding that a particular communication is part of a continuum and does itself contain any specific advice on matters of law or any specific request for such advice.
3. Ultimately it is a question of fact as to whether a professional relationship exists between the client employer and the in-house lawyer and whether the in-house lawyer was consulted in his or her professional capacity: see Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445, at [35] to [41]. Where advice is requested or given outside this professional relationship the information is not privileged.
4. On the basis of her affidavit and the contents of emails and file notes written by her and to her, I accept that a client lawyer relationship exists between the Respondent and its legal officer, Amy Fox. I also accept that the communications between Ms Fox and other employees of the Respondent were made under an express or implied obligation not to disclose their contents. In some cases, as noted in the document table, the emails are expressly marked "OFFICIAL: Sensitive - Legal", "OFFICIAL: Sensitive - Personal", "Subject to LPP" or 'Legal and Privileged'. Whilst I have taken such markings into account in the assessment regarding the confidentiality of the communications, mere markings do not determine whether the dominant purpose test has been satisfied. The mere fact that an email is marked 'privileged' does not necessarily mean that privilege attaches to the information in that email chain, or to its attachments.
5. In PwC at [205] Moshinsky J noted that whether or not the Documents in Dispute were privileged was to be determined by reference to whether, as to each particular document, it constitutes or records a communication made for the dominant purpose of giving or obtaining legal advice. That question is to be determined by reference to the content of the document, its context, and the relevant evidence relating to it. The question cannot be determined on a global basis.
6. However I have considered the contents of each document and, in the context of the scope of the Applicant's access request, the principles applying to most are sufficiently similar for the documents to fall into distinct categories. Although the determination in relation to each of the documents in categories 1, 2, and 3 cannot be released, I have set out a broad explanation of the factors I have taken into account in relation to each category.
7. Category 1: Emails and email chains leading up to emails which were created for the dominant purpose of seeking or providing legal advice from the Respondent's lawyers regarding the Applicant's Code of Conduct complaint and providing that advice. Many are marked "OFFICIAL: Sensitive - Legal" or "Legal and Privileged". Whilst the markings are not definitive, they are relevant in the circumstances of the Applicant's access request because they reflect the context of the advice and the confidential nature of the communications.
8. The disclosure of the information contained in the documents in category 1 (set out below) would result in disclosure of a confidential communication made between the client and a lawyer, or the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. Legal professional privilege attaches to the documents falling into category 1.
9. Under s 14(1) GIPA Act, there is conclusively presumed to be an overriding public interest against the disclosure of information which is the subject of legal professional privilege, and so the Tribunal is not required to perform the public interest test of balancing considerations under s 13 of the GIPA Act: Yee at [41].
10. Accordingly, as there is a conclusive public interest against those documents in category 1 being released, the Respondent's decision not to release those documents is justified.
11. Those documents are: 40, 41, 42, 53, 54, 64, 65, 66, 67, 68, 69, 70, 71, 73, 74, 76, 77, 78, 79, 80, 81, 82, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 95, 96, 97, 98, 99, 100, 101, 102, 104, 105, 107, 108, 109, 110, 115, 116, 117, 118, 119, 120, 121, 122, 124, 130, 131, 132, 135, 138, 139, 140, 141, 142, 143, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203 and 204.
12. The determination against each document in Category 1 is set out below: NOT FOR PUBLICATION Subparagraphs (1) - (116)
13. Category 2: Attachments to emails falling within category 1. The documents in category 2 are attachments to privileged communications and so are also privileged (see [50] above). Accordingly, as there is a conclusive public interest against those documents in category 2 being released, the Respondent's decision not to release those documents is justified and its decision in relation to those documents will be affirmed.
14. The following documents fall within Category 2: 43, 44, 45, 46, 47, 48, 49, 50, 51, 55, 56, 57, 58, 59, 60, 61, 62, 63, 72, 111, 112, 113, 114, 123, 133, 136, 144, 145, 146, 147, 148, 149, 150, 151, 152 and 172.
15. I note that document 43 (pages 31- 38), document 44 (pages 49 - 57), document 45 (pages 76 - 83) and document 51 (pages 100 - 102) have been released administratively. Their inclusion in this category does not prevent the Respondent from taking that course in relation to those or any of the other documents. However legal professional privilege is still pressed over the remaining parts of documents 43, 44 and 45 and over document 51 so they have fallen into this category for determination.
16. The determination against each document in Category 2 is as follows: NOT FOR PUBLICATION Subparagraphs (1) - (9)
17. Category 3: Email chains containing communications created for the dominant purpose of seeking or providing legal advice from the Respondent's lawyers, but also containing other information which is not privileged, but in relation to which disclosure (in part or on whole) could reasonably be expected to give rise to one or more of the public interest considerations against disclosure in the Table to s 14(2) of the GIPA Act and, on balance, that public interest consideration against disclosure outweighs the public interest consideration in favour of disclosure.
18. The documents in category 3 are only partially privileged and the Respondent has not justified withholding the parts falling outside legal professional privilege. However, those parts cannot be released before a determination is made as to whether another public interest consideration in the Table in s 14 applies and/or they require third person consultation. It would be inappropriate for the Tribunal to undertake this task as it has not been addressed in the parties' submissions and is likely to require third party consultation. However, it is prudent to give the Respondent an opportunity to do so.
19. The Respondent must reconsider those parts of the documents against the public interest considerations against disclosure in the Table in s 14 and then release the documents which do not fall within the public interest considerations against disclosure.
20. The following documents fall within category 3: 37, 38, 39, 52, 83, 94, 106 and 137.
21. The determination against each document in category 3 is as follows: NOT FOR PUBLICATION Subparagraphs (1) - (8)
22. Category 4: Email chains not containing communications created for the dominant purpose of seeking or providing legal advice from the Respondent's lawyers and with no other information which might fall under another public interest consideration in the Table in s 14 and/or require third person consultation.
23. The documents over which legal professional privilege was not pressed fall into this category. The Respondent has not maintained privilege over the following documents and the decision to refuse access has not been justified: 75, 103, 125, 126, 127, 128 and 134.
24. Category 5: Attachments to emails falling within category 4. Only document 129 falls in this category. This document is an attachment to document 125, over which privilege is not pressed. There is nothing in document 129 to suggest that its release would result in the disclosure of a confidential communication made between a client and a lawyer for the dominant purpose of the lawyer providing legal advice or that any other public interest considerations apply and the decision to refuse access has not been justified.
25. The documents in categories 4 and 5 are not privileged, do not disclose any other public interest considerations and the Respondent has not justified the decision to refuse access to them. They must be released.

What is the correct and preferable decision in all the circumstances in relation to the access decision?

1. The Respondent's decision is affirmed in relation to the Category 1 and 2 documents.
2. In relation to the category 3 documents, it is set aside and remitted to the Respondent for reconsideration in accordance with the recommendations in relation to Category 3 documents in paragraph [87] and the GIPA Act.
3. In relation to the category 4 and 5 documents, it is set aside and substituted with a decision that the Applicant be granted access to that information within 20 business days after the date of this decision is made, if it has not already been provided.

The charges decision

1. Under section 64 of the GIPA Act, an agency may impose a processing charge for dealing with an access application. 64 Processing charge for dealing with access application (1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application. Note. The decision to impose a processing charge is reviewable under Part 5. (2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in: (a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or (b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access). (3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant. (4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application. … 67 Waiver of processing charge for personal information application If an access application is made for personal information about the applicant (the applicant being an individual), the agency cannot impose any processing charge for the first 20 hours of processing time for the application. Note. This does not limit an agency's power to reduce, waive or refund processing charges under section 127.
2. Under s 67 of the GIPA Act, if an access application is made for personal information about the applicant (the applicant being an individual), the agency cannot impose any processing charge for the first 20 hours of processing time for the application.
3. Schedule 4 cl 3 to the GIPA Act defines Personal Information: 4 Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following - (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
4. Under s 68(1) of the GIPA Act, an agency may require an application to make an advance payment of a processing charge (as an advance deposit). Section 69 stipulates that the maximum advance deposit that can be required is 50% of the amount that the agency estimates to be the total processing charge for dealing with the application (ignoring any reduction in processing charge to which the applicant may be entitled.)
5. Section 127 of the GIPA Act provides that: 127 Waiver, reduction or refund of fees and charges An agency is entitled to waive, reduce or refund any fee or charge payable or paid under this Act in any case that the agency thinks appropriate, subject to the regulations. Note. See section 51A concerning the effect of a waiver, reduction or refund of the fee for an access application.

Background

1. The Respondent decided to impose a processing charge of $780 under s 64(1) of the GIPA Act. It was not contested that the Applicant paid both the deposit and the outstanding $375 of the processing charge to the Respondent. The documents were provided to him on 3 July 2024 after payment of the processing charge.
2. Part 6 of the Delegate's decision included a "Table of Processing Charges" detailing how time was spent processing his application and the applicable charges: Action Time Cost Consideration of the application 0.5 hours $15.00 (including identification of the most efficient way to conduct searches for records and requesting searches) Searching for records 9.5 hours $285.00 (including compiling, assessing, recording and providing to the decision maker) Consultation 0.5 hours $15.00 2 parties consulted in accordance with section 54(2) Providing access in response to the application and other functions 10 hours $300.00 Records reviewed to determine scope and public interest considerations for and against disclosure Decision making 5 hours $150.00 (drafting the decision letter & preparing information for release) Total time 26 hours 780.00 Total processing charges $780.00 Discounting application fee and first hour or processing -$30.00 Advance deposit paid -$375.00 Balance as at 24 April 2024: $375.00

The Respondent's submissions

1. The Respondent submitted that its decision to impose a $780.00 processing charge was in accordance with the provisions of the GIPA Act, and its notice of requirement to pay the advance deposit was in accordance with sections 68 and 69 of the GIPA Act, noting that the charge of $375.00 was 50% on 5 March 2024.
2. The Respondent did not consider section 67 of the GIPA Act to be applicable, as the request was not solely for the Applicant's own personal information. Therefore the Respondent did not apply a waiver of the processing charge for the first 20 hours of processing time.
3. The Applicant had submitted that he had received a number of duplicate documents within the documents to which access had been granted, despite having excluded duplicate documents from the scope of his request. However, while attempts were made to extract duplicate documents or documents sent by the Applicant, to have undertaken a thorough review of the records for that purpose would have required manual extraction and additional processing time. The Respondent submitted that it was the time spent processing a request that determined the charge ultimately imposed. Even where duplicate documents had been excluded from the scope of a request, it was still necessary to review all documents within scope to determine whether duplicates existed. The Respondent submitted that a similar amount of time would be required to process a request, regardless of whether duplicates were excluded.
4. The Respondent submitted that once documents were identified, they needed to be reviewed as to whether they came within scope then for relevant exemptions. In relation to email chains, the whole chain needed to be included, for context and reduce processing charges. The processing time was commensurate with the scope of the request. More than 1000 pages had been identified and 10 hours of processing time was reasonable. The charges were appropriate and in line with the GIPA Act.
5. The Respondent provided an Affidavit from Jarrod Whitbourn, Director, Information Access within the Information Access Unit at Transport for NSW dated 24 October 2024. Mr Whitbourn also gave evidence at the hearing on 7 November 2024 regarding the processes undertaken by TfNSW in assessing access applications.
6. In summary, Mr Whitbourn's evidence was to the effect that his team had been required to conduct searches using key terms and retrieve records to respond to the application, totalling 13.25 hours in searches. More than 300 records which were located were reviewed and assessed as to whether they were in the scope of the access application. 24. … While some attempt was made to extract from these records those which were duplicated or had been sent by the applicant, a thorough review of the records for this purpose would have required manual extraction and additional processing time.
7. At the hearing, Mr Whitbourn added that the search for the documents which came within the scope of the access request was significant. It was necessary to search widely for documents which came within the scope of each access request. It was not possible to simply assume that any past searches had uncovered all documents potentially coming within scope. Even if, as the Applicant posited, some documents had been kept in a central repository relevant to the Applicant's ongoing matters, it was necessary to ensure that the correct searches were undertaken for every GIPA application. A search containing 1000 pages would rank in the top 1% of TfNSW access applications generally, and in the top 10% of Sydney Metro access applications. Other access applications might be larger in volume but processing time would be less due to better "findability" of the relevant documents.

The Applicant's submissions

1. The Applicant submitted that he believed that the Respondent had imposed excessive charges in an attempt to discourage him from proceeding with his application. The majority of correspondence in relation to his GIPA application was file noted and filed in a central location which led to his conclusion that the charges were excessive and imposed in order to discourage him from pursuing his matters against the Respondent. The Respondent had also failed in their responsibilities by only releasing information which he had specifically excluded from his access request.

Has the Respondent established that the charges decision is justified?

1. Mr Whitbourn's description of the methodology undertaken in searching for information which might come within the scope of an access request also supported the time spent searching for records. Although it was the Applicant's experience in Sydney Metro that relevant information should be held in a central repository and so should not require much time to identify, Mr Whitbourn's evidence that extensive searches were conducted for each access application to ensure that no information was overlooked is consistent with the requirements of the GIPA Act and supported by the documents themselves.
2. The Applicant now has the table of documents which was produced by the Respondent in accordance with Order 4 of the Tribunal's orders of 10 October 2024 (the documents table), which gives a better understanding of the detail involved in the documents which were identified as coming within the scope of his request. However he has not seen the documents themselves (apart from those which have been released during the course of the proceedings) and so is unable to form a view as to their complexity.
3. In relation to the time taken to review the documents, as can be seen from the documents table and the discussion above regarding the access decision, the documents are varied and voluminous. At the hearing, Mr Whitbourn stated that the variation between the 13.25 hours in searches reflected in his affidavit and the 9.5 hours for which the Applicant had been charged probably reflected a discount having been applied. Having spent considerable time reviewing the documents, I am satisfied that 9.5 hours or even 13.25 hours is at the lower end of the time required properly to assess their contents.
4. The scope of the access application was far broader than merely comprising personal information about the Applicant and there was no basis on which to waive the fees for the first 20 hours under s 67 of the GIPA Act.
5. Processing charges are calculated on the basis of time. No charge is levied for volume or number of pages. I therefore also accept the explanation that excluding all duplicated documents would in fact have resulted in higher charges due to the extra processing time involved as reasonable and logical. Having considered the contents of the documents and the issues they have raised, as well as the evidence regarding the breadth of the searches undertaken, the processing time and charges are justified.

What is the correct and preferable decision in all the circumstances?

1. I am satisfied that the processing charges have not been elevated and the Respondent has justified the charges decision. As a result the correct and preferable decision is to affirm the charges decision.

Orders

1. The Tribunal makes the following orders: 1. The decision of the Respondent to refuse to provide access to information in full or in part in relation to the following documents is affirmed: 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 76, 77, 78, 79, 80, 81, 82, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 95, 96, 97, 98, 99, 100, 101, 102, 104, 105, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 130, 131, 132, 133, 135, 136, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203 and 204. 2. The decision of the Respondent to refuse to provide access to information in response to an access application in relation to the following documents is set aside and remitted to the Respondent for reconsideration in accordance with the recommendations in relation to Category 3 documents in this decision and the provisions of the GIPA Act within 30 business days after the date of this decision: 37, 38, 39, 52, 83, 94, 106 and 137. 3. The decision of the Respondent to refuse to provide access to information in response to an access application in relation to the following documents is set aside and, in substitution, a decision that the Applicant be granted access to that information within 20 business days after the date of this decision is made if it has not already been provided: 75, 103, 125, 126, 127, 128, 129 and 134. 4. The decision of the Respondent to impose a processing charge is affirmed. 5. Under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the sound recording and the transcript of the closed hearings (from 10:58 to 11:51 am on 10 October 2024 and 10:20am to 12:11pm; 12:11 pm to 12:45pm and 1:43 - 1:48pm on 7 November 2024) of these proceedings, and the paragraphs in this decision marked "NOT FOR PUBLICATION" is prohibited. 6. Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant or any other person apart from representatives of the Respondent, of the sound recording and the transcript of the closed hearings (from 10:58 to 11:51 am on 10 October 2024 and from 10:20am to 12:11pm; 12:11 pm to 12:45pm and 1:43 - 1:48pm on 7 November 2024) in these proceedings and the paragraphs in this decision marked "NOT FOR PUBLICATION" is prohibited. 7. Under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of any of the confidential documents contained in the bundle of confidential documents lodged by the Respondent paginated 1 - 1084 is prohibited. 8. Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant of any of the confidential documents contained in the bundle of confidential documents lodged by the Respondent paginated 1 - 1084 is prohibited, apart from those listed in order 2 (after reconsideration by the Respondent) and order 3, unless otherwise released administratively by the Respondent.

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: 06 January 2025