Zidar v Department of Justice

Applicable legislation

1. The task of the Tribunal is to determine the "correct and preferable decision": section 63 of the Administrative Decisions Review Act 1997.
2. The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. For a recent consideration see the discussion by Senior Member Perrignon in Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139.
3. The objects of the 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.
4. The Tribunal is to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure. Pursuant to section 5 of the GIPA Act there is a presumption in favour of disclosure of the information unless there is an overriding public interest against disclosure. In accordance with section 9(1) of the GIPA Act, Mr Zidar has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.
5. The table to section 14 sets out the relevant public interest considerations against disclosure. The only factors that can be taken into account are those referred to in section 14 of the GIPA Act. Section 14 provides that - (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.
6. Clause 5 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.
7. Clause 2 of schedule 2 of the GIPA Act. SCHEDULE 2 - EXCLUDED INFORMATION OF PARTICULAR AGENCIES Note : Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is "excluded information" of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. ... 2 COMPLAINTS HANDLING AND INVESTIGATIVE INFORMATION ... The office of Legal Services Commissioner--complaint handling, investigative, review and reporting functions.
8. Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision.
9. As noted, Mr Zidar also contends that the Department should hold further information that falls within the scope of his request. Section 53 of the GIPA Act provides: 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.
10. The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. In Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7, (1994) 1 QAR 464, the Queensland Information Commissioner outlined a two-stage approach to the question of what constitutes an adequate search: (1) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so, (2) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
11. The decision in Shepherd has been followed in a number of decisions of this Tribunal in matters under the GIPA Act. See, for example, Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5, and BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156.
12. Section 53(1) limits the agency's obligation to respond to a request for information held by it at the time of the access request. The obligation does not extend to information once held by the agency but which is no longer held in the primary systems of the agency: Robinson v Commissioner of Police [2014] NSWCATAP 73.
13. The Tribunal's task is to determine the correct and preferable decision at the time of the decision. If there are reasonable grounds to believe that the agency holds more information than it has identified, the correct and preferable decision will not be to affirm the agency's decision that it does not hold the information. As Senior Member Lucy noted in Amos v Central Coast Council [2018] NSWCATAD 101, this may be the case even if the agency's searches appear to have been reasonable at the time they were conducted.

Issues for Determination

1. The parties are in general agreement in regard to the issues for determination. In respect of information that has been withheld these are: 1. Is there an overriding public interest against disclosure? 2. Does the Department hold other information that falls within the scope of the access application that has not been identified by the searches undertaken? 3. Should the Tribunal affirm, vary or set aside the Department's decision?

The Material before the Tribunal

1. The Department relies on several affidavits which have been filed and served in a redacted form so as to conceal the identity of the deponent. Unredacted copies have been filed with the Tribunal on a confidential basis.
2. The confidential affidavits were relevant to the orders that I made that restrict the basis on which Mr Zidar may disclose the names of a number of identified persons or material that might identify those individuals that I have referred to above.
3. The Department also relies on the evidence of Mr Michael Mcintosh, the Assistant Manager of the Department's Open Government, Information and Privacy Unit, and that of Mr Roger Gimblett who is the complaints manager at the Office of the Legal Services Commissioner ("the OLSC").
4. Mr Michael Mcintosh gave evidence in regard to the Department's procedures when obtaining legal advice and also in relation to the searches that were undertaken in response to Mr Zidar's access application. Mr Gimblett gave evidence in relation to OLSC's complaint handling manual. He confirmed that no consent was given to the release of the OLSC's complaint handling manual ("the manual").
5. Each of the parties has made written and oral submissions.

The information in issue

1. Two documents that were located and identified as falling within the scope of Mr Zidar's request have not been released. The first is a document over which the Department has claimed legal professional privilege ("the legal advice"). The second is an extract from the manual. Emails held in relation to the manual were also withheld but the Department has accepted that those emails can be released. I agree with that approach.

The Legal Advice

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, unless the person in whose favour the privilege exists has waived the privilege. The Department has claimed legal professional privilege over this information. It considered the question of whether it should waive the privilege and decided that it would not be appropriate to do so in this instance. There is no suggestion that the privilege has been waived.
2. I have been given a copy of the legal advice and I have read it.
3. The legal principles relevant to this issue have been considered in numerous cases before this Tribunal. In Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5, I considered the meaning of 'information that would be privileged from production in legal proceedings on the ground of client legal privilege' in Clause 5 of Schedule 1. I stated at paragraphs [60] - [63]: 60. The 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. 61. There 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. 62. Nevertheless, it is my view that the application of the principles of common law advice privilege would be unlikely to lead to a different outcome in the present case. 63. The 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.
4. In Battin v University of New England [2013] NSWADT 73 at paragraph [39] the Tribunal noted: "In some cases it will be obvious from an examination the written communication itself that the dominant purpose of the communication was the provision of legal advice."
5. I agree with that view. It is applicable in regard to the legal advice. It is clear from the face of the document that the essential elements of establishing the privilege claim are met. It is clear that: 1. the author of the legal advice is a lawyer and the recipient was its client. It is legal advice from the New South Wales Crown Solicitor's Office to employees of the OLSC. I am satisfied on the basis of the evidence that there is a client and lawyer relationship between the Crown Solicitor's Office and employees of the OLSC; 2. the communication is clearly a confidential communication; and 3. the "dominant purpose" of the legal advice was the provision of professional legal services.
6. I am satisfied that Clause 5 of Schedule 1 to the GIPA Act applies to the legal advice. There is a conclusive presumption of overriding public interest against disclosure of the information under clause 5(1) of Schedule 1 to the GIPA Act.

The Manual

1. The Department contends that the manual is information that relates to the complaint handling, investigative, review and reporting functions of the OLSC.
2. In Fraud Detection & Reporting Pty Ltd v Department of Justice [2018] NSWCATAD 63 Senior Member Leal observed at paragraphs [54] - [56]: 54. As set out above, a copy of each of the documents to which Mr Zidar had sought access has been provided to the Tribunal on a confidential basis. I have examined each of the documents and I am satisfied that they all relate to the complaint handling, investigative or reporting functions of the OLSC. This includes the Case Management Procedures and Guidelines produced by the OLSC which, I am satisfied, provide instructions on how staff members of the OLSC are to handle and investigate complaints. 55. On this basis, I find that each of the documents to which Mr Zidar sought access constitute excluded information as set out in clause 2 to Schedule 2 of the GIPA Act, which includes as excluded information that which relates to the complaint handling, investigative and reporting functions of the OLSC. 56. On this basis, I find that there exists an overriding public interest against disclosure. (see Schedule 1 to the GIPA Act).
3. Mr Zidar's appeal from Senior Member Leal's decision was dismissed: Fraud Detection and Reporting Pty Ltd v Department of Justice [2018] NSWCATAP 191.
4. On the evidence before me I am satisfied that Senior Member Leal has correctly described the manual's purpose. This Tribunal has consistently found that the words "relates to" are of the "widest import". In my view the manual clearly relates to the OLSC's complaint handling, investigative and reporting functions. I am satisfied that clause 2 to Schedule 2 to the GIPA Act applies to the manual. Accordingly, there is a conclusive presumption of overriding public interest against disclosure of the information under clause 2 to Schedule 2 of the GIPA Act.

The searches

1. Mr Zidar has asserted that the searches that the Department undertook were not sufficient to locate all the information that is held by the Department that falls within the scope of his request. There must be reasonable grounds to believe that the Department holds more information than it has identified. It is not enough for an applicant merely to assert non-compliance on the basis of general distrust of the agency. Mr Zidar has not suggested other searches that could be undertaken to locate this information.
2. In the circumstances I have no basis on which I could conclude that the information that Mr Zidar is seeking is held by the Department. That being the case it is my view that searches that have been undertaken are reasonable and the Department does not hold further information that falls within the scope of the request.

Sections 111 and 112

1. Section 111 of the GIPA Act provides: 111 REFERRAL OF SYSTEMIC ISSUES TO INFORMATION COMMISSIONER NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.
2. Section 112 of the GIPA Act provides: 112 REPORT ON IMPROPER CONDUCT If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.
3. Mr Zidar has asserted that the Tribunal should make referrals under these sections in relations to several officers of the Department. I do not agree. I do not consider that there is any basis for making such referrals.

Orders 1. The decision under review is affirmed

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: 02 October 2018