Styles v Wollondilly Shire Council

Procedural directions

1. The matter was listed for case conference before Senior Member Perrignon on 8 August 2022, but this was adjourned to 13 September 2022 at the applicant's request.
2. On 13 September 2022, Senior Member Montgomery conducted a case conference at which the applicant appeared in person and Ms J Chenhall appeared for the respondent. He ordered the respondent to file and serve evidence including statements, documents and submissions by 10 October 2022. He ordered the applicant to file and serve evidence including statements, documents and submissions by 7 November 2022 and he also ordered the respondent to file and serve all evidence in reply, submissions and a summary of legal arguments by 21 November 2022. He listed the matter for hearing on 29 November 2022 and granted the respondent leave to appear by AVL.

The hearing

1. The matter came before me for hearing on 219 November 2022. The applicant appeared in person and Mr C Zoppo appeared for the respondent. The hearing proceeded by way of AVL.
2. The Tribunal received the parties' evidence and as there were no objections, and no witnesses were required for cross-examination, this was admitted and marked as follows: 1. Statement of the applicant dated 8 August 2022 and attached bundle of documents - Ex A; 2. Statement of Alexandra Roberts dated 10 October 2022 - Ex 1; and 3. Statement of Alexandra Roberts dated 22 November 2022 - Ex 2.

Applicant's evidence

1. The applicant stated that in April 2022, she published a book called "Antill Golf Club Associates", with a foreword written by the four-times great granddaughter of the recipient of a land grant of 2000 acres at Stonequarry (Picton) by Governor Macquarie in 1821. The recipient named the property "Jarvisfield". The book dealt with the history of female golfers in Wollondilly from 1905 and "narrates the facts of the forced resumption" of the property by the respondent in 1974 to lease to the golf club. A copy of the said book was attached and marked "A". However, its relevance to the current dispute was far from clear.
2. The applicant stated that in May 2022, she "gifted" a copy of the book to the Wollondilly Library in Picton and arranged a Book Launch schedule for 2 June 2022. However, on 20 May 2022, she received an email from Eric Imbs, Head of Integrity and Governance, in which he stated, relevantly: …In reviewing your book …, I am satisfied that it unjustly promotes a theme of deception and misconduct by Council in relation to the resumption of the Antill cottage".
3. Mr Imbs advised that the book launch was cancelled and he removed the gifted book from the Library. As a consequence, the applicant wrote a letter of complaint to the General Manager, Ben Taylor, dated 22 May 2022.
4. On 23 May 2022, the applicant wrote to the Programs and Promotions Librarian requesting confirmation that the book launch had been cancelled.
5. On 24 May 2022, the applicant wrote to the General Manager attaching a copy of a newspaper report in South West Voice dealing with Mr Imbs' email dated 20 May 2022.
6. On 25 May 2022, the applicant wrote a letter of complaint to Wollondilly MP, Nathaniel Smith, dealing with Mr Imbs' email dated 20 May 2022. Ms Smith did not respond, other than apparently providing the respondent with a copy of her letter.
7. On 30 May 2022, the applicant received an email from the Director Customer & Corporate Services (Ms Caroline Argent) in relation to her email dated 23 May 2022. She advised that the respondent had removed the gifted copy of the book from the Library "for archiving purposes". However, she also dealt with the letter of complaint to the General Manager dated 22 May 2022 and she stated: I am satisfied that there is no basis for your allegations against Mr Imbs and encourage you to pursue your (sic) alternative dispute resolution options outlined below.
8. On 31 May 2022, the applicant wrote a letter of demand to the respondent requiring payment of $125 "in recompense for removing the gifted book from the Library… without (her) consent or knowledge".
9. On 3 June 2022, Ms Argent wrote to her "falsely claiming that the author had withdrawn the gifted copy donated to Wollondilly Library and that she considered archiving the book was appropriate." She requested an invoice for $125 in "full and final settlement of your claim".
10. On 6 June 2022, the applicant wrote to the General Manager in response to Ms Argent's letter dated 3 June 2022, but on 7 June 2022, Ms Argent repeated the contents of her previous letter.
11. On 10 June 2022, the applicant wrote to the General Manager regarding her letter of demand and Ms Argent's letter dated 7 June 2022.
12. On 23 June 2022, Mr Imbs wrote to her, stating that the General Manager had requested that he respond to the letter dated 10 June 2022 and that if legal proceedings commenced, to direct correspondence to himself.
13. On 24 June 2022, the applicant wrote to the General Manager and lodged a formal Code of Conduct complaint against Mr Imbs.
14. The applicant referred to the schedule of documents attached to the respondent's notice of decision and she asserted that the documents marked 1 to 9 are "preponderantly" her documents and are therefore "irrelevant" to the GIPA application. On 18 July 2022, she wrote to the respondent seeking confirmation of that assertion.

Respondent's evidence

1. In Ex 1, Ms Roberts dated that she is the Data & Information Management Coordinator for the respondent and that she is responsible for determining GIPA applications and complaints made under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIPA). She stated that she made the decision dated 4 July 2022 and that as part of the process of determining the GIPA application, 18 documents were withheld under Sch 1 Cl 5 of the GIPA Act, as she deemed the information to be subject to a conclusive presumption against disclosure as it was subject to legal professional privilege. On that basis, the information identified as 10 to 27 of the schedule of documents was withheld.
2. In Ex 2, Ms Roberts provided specific information regarding the searches that she conducted in order to identify the information that was within the scope of the GIPA application and she stated that she inspected approximately 68 documents that were identified by the searches. She also stated that the applicant had not yet paid the processing fee of $157.50 and that none of the undisputed documents had been released to her.

Respondent's Submissions

1. In its submissions filed on 11 October 2022, the respondent asserted that the issues in dispute are: 1. Whether the applicant should be required to pay a processing fee; and 2. Whether the withheld documents are subject to a conclusive presumption against disclosure on the basis that they are documents for which a claim of legal professional privilege can be made.
2. In relation to the processing fee, the respondent stated that the information that is not disputed are emails between the respondent's staff regarding the applicant and emails sent by the applicant to the respondent's staff. The content of the emails between staff is not personal information as defined in Sch 4 of the GIPA Act except that they may contain the applicant's name and/or address. The information relates to communications about the book launch that the applicant sought to hold and its subsequent cancellation by the respondent and is in within the scope of the application. As it is not personal information of the applicant, as defined in Sch 4, the waiver of processing charges provided for under s 67 of the GIPA Act does not apply. This information will be released to the applicant upon payment of the processing fee.
3. In relation to the claim for legal professional privilege, the respondent stated that this protects confidential communications between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client, or for use in current or anticipated litigation. The essential elements are found in ss 118 and 119 of the Evidence Act 1995 (NSW), namely: 1. The existence of a client lawyer relationship; 2. The confidential nature of the communication or document; and 3. The communication or document was brought into existence for the dominant purpose of either: 1. Enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or 2. For use in anticipated litigation.
4. The respondent stated that Sch 1 cl 5 of 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 Cl 5.
5. The respondent stated that when it was making the decision, it considered whether it would be appropriate to waive the claim for legal professional privilege before deciding to refuse access to the withheld information. However, as the withheld information comprised legal advice, it decided that it was not appropriate to waive the claim for privilege. Pursuant to sch 1 cl 5(3) that decision is not a reviewable decision.
6. The respondent noted that in Holman v Warringah Council [2015] NSWCATAD 215, the Tribunal considered the respondent's refusal to allow access to certain documents on the basis of legal professional privilege. The Tribunal stated (at [84]): …it is common ground that the question of whether the information in issue falls within client legal privilege depends on the application of ss 117 to 119 of the Evidence Act 1995.
7. Further, at [86], the Tribunal stated: The "legal advice" referred to in s 118 is a broad concept understood in a pragmatic sense. It is not confined to a lawyer's telling the client the law, while acting in a professional capacity; it must also include advice as to what should prudently and sensibly be done in the relevant legal context (ibid.) The dominant purpose of the communication must be determined objectively, having regard to all the circumstances in which the communication was made, and its nature. If the document or information would have been prepared irrespective of the intention to obtain professional legal services, it will not satisfy the test laid down in Grant v Downs (1976) 135 CLR 674, 688.
8. The respondent argued that a review of the withheld documents establishes the elements of legal professional privilege, as: 1. Mr Bruce McCann is General Council of the respondent and holds a practising certificate issued by the Law Society of NSW; 2. The withheld documents contain confidential communications between the respondent and its internal lawyers and external lawyers; and 3. The communications or documents were brought into existence for the dominant purpose of: 1. Providing legal advice, or 2. Providing legal services or for use in existing or anticipated litigation including anticipated litigation by the applicant.
9. The respondent stated that the applicant commenced legal proceedings against it in the Local Court in relation to matters that are discussed in the communications.
10. The respondent also stated that it had reconsidered its position and it now agreed to release the documents numbered 10, 12, 14, 15, 24 and 25 of the schedule of documents to the decision dated 4 July 2022 to the applicant. It also decided that documents numbered 13, 19 and 27 are outside the scope of the GIPA application, but it pressed its claim for privilege in relation to documents numbered 11, 16, 17, 18, 20, 21, 22, 23 and 26 of the schedule of documents.

Applicant's submissions

1. The applicant filed submissions on 2 November 2022, and her arguments included the following: 1. It is an abuse of process to charge processing fees under s 65(1) of the GIPA Act for documents that are her own documents; 2. She disputed that the respondent undertook reasonable searches for documents sought in the GIPA application and argued that the respondent has not discharged its onus under s 105 of the GIPA Act; 3. The respondent has not provided her with advice and assistance as required by s 16(1) of the GIPA Act; 4. Where legal advice is provided by an in-house lawyer, it must be shown that the document was brought into existence in the course of the performance of the lawyer's professional role, and factors relevant to the question of whether the in-house lawyer was performing their legal role include whether the subject matter of the advice is such as to engage the personal loyalties, duties and interests of the in-house lawyer and whether the legal advice met with the respondent's policy and administrative objectives; and 5. Of the 18 items over which privilege has been claimed, the respondent has inappropriately claimed it over 12 documents.
2. The applicant concluded that the Tribunal should determine the correct position regarding the items over which the respondent claims privilege and that the matter should be returned to the respondent for reconsideration.

Oral submissions

1. When the hearing commenced, the applicant stated that she had not paid the processing fee of $157.50 because she objects to paying for copies of her own documents (items 1 to 9 in the schedule of documents). She stated that she pressed the claim for access to documents numbered 10 to 27 of the schedule of documents, but she subsequently decided not to press for access to the documents numbered 20 and 26.

Confidential hearing

1. The principal issues in dispute were whether the withheld documents are properly subject to a claim for legal professional privilege and/or are outside the scope of the GIPA application.
2. For these reasons, the Tribunal determined that it was necessary to conduct a confidential hearing in the absence of the applicant and this hearing was conducted in accordance with s 107 of the GIPA Act and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

Claim for legal professional privilege

1. During the confidential hearing, the Tribunal examined the withheld documents that are subject to the respondent's continuing claim for legal professional privilege and heard oral submissions from Mr Zoppo. I have referred to them by reference to their numbers in the schedule of documents to the decision dated 4 July 2022, as follows.
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]
5. [NOT FOR PUBLICATION]
6. [NOT FOR PUBLICATION]
7. [NOT FOR PUBLICATION]
8. [NOT FOR PUBLICATION]
9. [NOT FOR PUBLICATION]
10. [NOT FOR PUBLICATION]

Resumption of the open hearing

1. Following the completion of the confidential hearing, the Tribunal resumed the open hearing, during which Mr Zoppo stated that the unredacted documents, which will be produced to the applicant when she pays the processing fee, are within the scope of the GIPA application. He stated that while there may me an email from the applicant within documents numbered 1 to 9 of the schedule of documents to the decision dated 4 July 2022, these documents do not solely comprise documents provided by the applicant.
2. At the completion of the open hearing , the Tribunal reserved its decision.

Legal principles

1. The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
2. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
3. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

The GIPA Act

1. In respect of access applications, s 9(1) of the GIPA Act relevantly provides: A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
2. I am satisfied that the Decision dated 4 July 2022 (as varied by the respondent in its written submissions filed on 11 October 2022) is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act. However, I note that by operation of Sch 1 Cl 5(3), the respondent's decision to not waive legal professional privilege is not reviewable.
3. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.
4. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
5. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
6. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
7. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
8. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
9. Section 14 relevantly 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. (2) 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. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
10. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).
11. Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows: 53. Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
12. Section 55 of the GIPA Act refers to "personal factors" that may be brought into consideration with respect to an agency's determination of whether there is an overriding public interest against disclosure of information. This provides: 55. Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
13. Section 64 of the GIPA Act provides: 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 Cl 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. (5) A processing charge must not be discounted under section 65 or 66 by more than 50% even if both sections apply.
14. Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
15. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).
16. Section 107 of the GIPA Act provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT 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 NCAT administrative review, NCAT 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 NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of - (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
17. Sch 1 cl 5 of 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.

Matters in dispute

1. I am satisfied that the following matters are in dispute: 1. Whether the withheld documents are subject to a conclusive presumption against disclosure on the basis that they are documents for which a claim of legal professional privilege can be made; and 2. Whether the applicant should be required to pay a processing fee.

Reasonable searches

1. While the applicant's submissions indicate that she disputes that the respondent conducted reasonable searches, as required by s 53 of the GIPA Act, she did not raise this issue at the hearing.
2. In any event, in my view it is not sufficient for her to merely assert that the respondent's searches were inadequate - she must establish that there are reasonable grounds for believing that further documents exist.
3. I note that the applicant did not seek to cross-examine Ms Roberts and I accept her evidence regarding the searches that she conducted in response to the GIPA application. I am satisfied that the respondent conducted reasonable searches as required by s 53 of the GIPA Act.

Scope of the GIPA application

1. I am satisfied that the documents numbered 19 and 20 of the schedule of documents dated 4 July 2022 are outside the scope of the GIPA application, as they relate to the applicant's Code of Conduct complaint against Mr Imbs and not to the book launch.
2. However, I note that during the hearing, the applicant stated that she did not press her claim for access to document no. 20.

Legal professional privilege

1. I am satisfied that the withheld documents, being documents numbered 16, 17, 18, 21, 22, 23 and 26 in the schedule of documents to the decision dated 4 July 2022 are properly protected by legal professional privilege under sch 1 cl 5 of the GIPA Act. It follows that I am satisfied that there is an overriding public interest against disclosure of these documents.
2. In making that finding, I note that during the hearing, the applicant stated that she did not press her claim for access to document no. 26.
3. In view of my finding in relation to this issue, it is not necessary to apply the public interest test in relation to these documents.

Processing fee

1. Having reviewed the documents numbered 1 to 9 in the schedule of documents to the decision dated 4 July 2022, I am satisfied that the documents are within the scope of the GIPA application.
2. In my view, there is no proper basis for the applicant's objection to paying the processing fee required by the respondent and I accept the respondent's argument that there is no basis for waiving the processing fee under s 65 of the GIPA Act.

Conclusions

1. For the reasons set out above, pursuant to s 63(3)(a) of the ADR Act, the decision of the respondent dated 4 July 2022, as varied by its written submissions dated 11 October 2022, is affirmed.
2. There is no proper basis for an objection to the payment of the processing fee to 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: 09 January 2023