Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Styles v Wollondilly Shire Council [2023] NSWCATAD 315 Hearing dates: On the papers Date of orders: 12 December 2023 Decision date: 12 December 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: P H Molony, Senior Member Decision: 1. The Tribunal being satisfied that the issues for determination in this matter can be adequately determined in the absence of the parties, by considering the submissions and material lodged by them, dispenses with a hearing in this matter. 2. The decision under review is set aside and remitted to Wollondilly Shire Council for reconsideration in accordance with the direction that all the information in email chains 1, 2 and 3 be disclosed to Ms Styles, such reconsideration to be completed within 30 days of publication of these reasons. Catchwords: ADMINISTRATIVE LAW — Freedom of information — Access to information — administrative review of decision under Government Information (Public Access) Act 2009 — whether reasonable searches undertaken for information responsive to access application — burden of proof that reasonable searches undertaken on agency — whether public interest considerations against disclosure made out — burden on agency to demonstrate each public interest consideration against disclosure relied on — no such burden on access applicant. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Freedom of Information Act 1982 (Cth) Government Information (Public Access) Act 2009 Cases Cited: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 General Manager, Workcover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195]; McKinnon v Secretary, Department of Treasury [2006] HCA 45 Miriani v Transport for NSW [2021] NSWCATAD 16 Peacock v Commissioner of Police, NSW Police Force [2019] NSWCATAD 20 Samandi v NSW Department of Communities and Justice [2020] NSWCATAD 286 Seremetis v Commissioner of Police [2020] NSWCATAD 317 Styles v Wollondilly Shire Council [2023] NSWCATAD 176 Toplace Pty Ltd v City of Parramatta [2021] NSWCATAD 149 Waterford v Commonwealth (1987) 163 CLR 54 Wojciechowska v Commissioner of Police [2020] NSWCATAP 257 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2 Texts Cited: None Category: Principal judgment Parties: Lynette Styles (Applicant) Wollondilly Shire Council (Respondent) Representation: Solicitors: Applicant (Self-Represented) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/00242487 Publication restriction: None reasons for decision Background. 1. This is an application for administrative review of a decision (the decision) of Wollondilly Shire Council (the agency) concerning an application for access to information made by Ms Styles under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). The decision was made on 19 April 2023 and gave Ms Styles partial access to the information she sought, with redactions, subject to payment of a processing charge. 2. On 28 April 2024 Ms Styles filed an application for administrative review of the decision in proceeding numbered 2023/00135625. She sought review of three elements of the decision: 1. The decision to refuse to provide access to some information. 2. The imposition of a processing charge. 3. A decision not to include the disclosed information in the agency's disclosure log. 1. The Tribunal conducted a hearing on the papers with respect to the processing charge. On 7 July 2023 the Tribunal published its written decision in Styles v Wollondilly Shire Council [2023] NSWCATAD 176. The decision to impose a processing charge was set aside. That written decision provides additional background to this decision. At paras [41] and [42] of that decision the Tribunal wrote: 41. As mentioned earlier in these reasons, in the procedural directions made on 22 May 2023, the Tribunal noted that the application for review of the decision to refuse access (in part) to information for which access is sought is premature as Ms Styles has not yet been provided with access to any of the information for which there was a decision to grant access. 42. It is open to Ms Styles to bring a fresh application in the Tribunal if, after receiving and reviewing the information for which access has been granted, she remains of the view that the Council's decision to refuse access (in part) should be reviewed. 1. On 31 July 2023 Ms Styles lodged a further application (2023/00242487) in which she sought to administratively review the decision to provide her with partial access to the information she sought. She noted that the agency was yet to release the information to her despite the order made by the Tribunal on 7 July 2023. Unlike her earlier application she did not seek to review the decision not to include the disclosed information in the agency's disclosure log. 2. On 28 August 2023, at a directions hearing, the Tribunal, "out of an abundance of caution", extended the time in which Ms Styles could make the present application, so that it was made within time. The Tribunal then set a timetable for the filing of materials and submissions, which were to include the parties' views as to whether the issues could be adequately determined in their absence by considering the materials before the Tribunal. 3. Both parties have since indicated that the issues can be adequately determined on the papers. Material before the Tribunal. 1. In considering this matter I have had regard to the following materials: 1. From Ms Styles: 1. Application for administrative review filed 31 July 2023 with attachments. 2. Submissions filed 26 September 2023 with attachments. 1. From the agency: 1. Notice of representation by legal practitioner filed 7 August 2023. 2. NCAT – GIPA Review form filed 28 August 2023. 3. Written submissions filed 12 September 2023. 4. Statement of Alexandra Roberts dated 12 September 2023. 5. Revised Schedule of documents. 6. Written submissions in reply filed 9 October 2023. 1. The decision in Styles v Wollondilly Shire Council [2023] NSWCATAD 176. 2. Directions made 28 August 2023 by Senior Member Higgins. 3. A confidential copy of the information in issue. 4. An open copy of the information disclosed to Ms Styles including all redactions. Should the application be determined without a hearing? 1. Section 50 (2) to (4) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. 1. In this case both parties have indicated their agreement to the application being determined on the papers. Having reviewed all the materials I am satisfied that this is matter that can be determined in the absence of the parties by considering the materials lodged by them. I therefore dispense with a hearing. The access decision. 1. The decision was made by Ms Roberts, the agency's Access to Information Officer. She said that the information in issue was to be found in three email chains. They are: 1. Email Chain 1 – a chain of three emails internal to the agency between its Manager Governance, Integrity and Ethics and the Mayor, dated 15 and 16 March 2023, regarding a code of conduct complaint made by the applicant (pages 1 and 2 of the confidential documents). Only the last of these, from the Manager Governance, Integrity and Ethics to the Mayor (in response to a disclosed question from the Mayor about procedure in code of conduct investigations) contains redactions, with the whole response having been deleted. 2. Email Chain 2 - a chain of six emails (pages 3 to 5 of the confidential documents) commencing on 10 March 2023 at 7:57am with an unredacted email from Ms Styles to the agency regarding a code of conduct complaint. This is followed in order by - 1. an unredacted email timed 10 March 2023 at 7.57am from Ms Styles to the agency about a code of conduct complaint. 2. an unredacted email timed 15 March 2023 at 3:33pm from the Manager Governance, Integrity and Ethics to the Chief Executive Officer of the agency. 3. an email timed 17 March 2023 at 5:39pm from the Chief Executive Officer the Manager Governance, Integrity and Ethics. The substance of this has not been disclosed and is redacted. 4. an email timed 20 March 2023 at 2:20pm from the Manager Governance, Integrity and Ethics to the Chief Executive Officer and copied to General Counsel for the Council. The substance of this has been redacted. 5. an unredacted email timed 20 March 2023 at 3:22pm from the Chief Executive Officer to the Manager Governance, Integrity and Ethics and copied to General Counsel. 6. an email timed 20 March 2023 at 3:55pm from General Counsel to the Chief Executive Officer and the Manager Governance, Integrity and Ethics. The substance of this has not been disclosed and is redacted. 1. Email Chain 3 – a chain of two emails, both dated 21 March 2023, between the Manager Governance, Integrity and Ethics and General Counsel (page 6 of the confidential documents). The substance of both has not been disclosed and is redacted. 1. In her decision Ms Roberts said the redactions she made were made were based on two public interests against disclosure, which she found applied to all the redacted information, namely, that, if disclosed, the information could reasonably be expected to have one or more of the following effects: 1. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, ((1)(e) of the Table to s 14) and 2. prejudice the effective exercise by an agency of the agency's functions ((1)(f) of the Table to s 14). 1. These were found to outweigh the public interest in favour of disclosure which Mr Roberts found to be: • To promote open and transparent government. • Individuals should have confidence in the workings of Council and how Council addresses issues. •Access to information leads to individuals being informed of events/issues. • To provide a legally enforceable right to access information. • The disclosure would promote the objective of the Act. 1. In addition, in submissions with respect to email chains (2) and (3), the agency has argued that the redacted information is the subject of legal professional privilege and, as such, it is conclusively presumed that there is an overriding public interest against disclosure of that information: s 14(1) and Schedule 1, cl 5. The applicable law. 1. The objects of the GIPA Act are set out in s 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. 1. In exercising functions under the Act s 3(2) instructs that - "It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information." 1. 'Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 2. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 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 (s 9). The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the 'overriding secrecy laws' that are set out in Schedule 1. In the case of overriding secrecy laws, it is conclusively presumed that there is an overriding public interest against disclosure (s 11 and s 14). 3. Information of the kind specified in Sch 1, is therefore the subject of a conclusive presumption that there is an overriding public interest against disclosure ("a conclusive presumption"). Sch 1 is not short. Among the information that it provides is the subject of a conclusive presumption, is information that is the subject of legal professional privilege (cl 5). 4. In the present case the agency claims that email chains 2 and 3 are the subject of legal professional privilege. Clause 5 of Sch 1 provides: (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. 1. With respect to other government information, which is not subject to a conclusive presumption, the GIPA Act establishes a general principle that there is public interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. 2. There will only be an overriding public interest against disclosure when the public interest test in s 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. 1. Section 14(2) then provide – (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 1. In considering whether there is an overriding public interest against disclosure s 16 provides - (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. 1. The public interest considerations against disclosure relied on by the agency in its access decision were those set out in points 1(e)and (f) to the Table to s 14. 2. In Hurst v Wagga Wagga City Council [2011] NSWADT 307, I explained at [56] to [58]: 56. The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words - "... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like." 57. Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 that, at [61] - "... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act". And the same approach should be taken to the expression "reasonable grounds" when it is used in s 58(5) of the Act." See also XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2. 58. It is necessary for Council 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. 1. See also Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 at [146]; Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252; and Peacock v Commissioner of Police, NSW Police Force [2019] NSWCATAD 20. 2. In this case, Ms Styles alleges that the searches conducted by the agency were insufficient and that there is information in existence, responsive to her request, which was not disclosed by the agency in its decision. Specifically, she refers to a letter she received from the Manager, Governance, Integrity and Ethics dated 21 March 2023, concerning a code of conduct complaint she made against an acting CEO of the agency, a copy of which is annexure C to Ms Styles statement (annexure C). 3. Section 53 places an obligation on agencies to conduct reasonable searches for information held by it at the time an application is received. It provides: (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. 1. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 257 an Appeal Panel summarised the task of the Tribunal when reviewing a decision that information is not held by an agency: 44 In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: 1. identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) – (5); 2. determine whether the agency has proved any relevant factual issues on the balance of probabilities; 3. consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; 4. applying those findings, decide what the correct or preferable decision is; 5. affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act. 1. Section 58 sets out the decisions an agency may make with respect to an access application. (1) An agency decides an access application for government information by— (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note— These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 1. Section then 80 sets out a series of decisions that are reviewable decisions under the Act. It relevantly provides - "The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: … (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, … 1. Among other options, a person aggrieved by an access decision may seek a review by the Tribunal (s 100). When this provision is read with s 28 and s 30 of the NCAT Act, and s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), they confer jurisdiction on the Tribunal to review reviewable decisions made under the GIPA Act. 2. In any review of a reviewable decision by the Tribunal s 105 places the burden of justifying the decision on the agency concerned. It relevantly provides - (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. (4) If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review. 1. The Tribunal's function on review under s 63 of the ADR 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. Issues 1. The issues in dispute are: 1. Whether the agency has undertaken reasonable searches for information held by it responsive to Ms Styles request in accordance with s 53. 2. Whether the information redacted from email chains 2 and 3 is the subject of legal professional privilege? 3. Whether the information redacted from email chains 1, 2 and 3 is subject to a public interest against disclosure? 1. Once those issues are decided I will be able to redetermine Ms Styles access application. Consideration Did the agency undertake reasonable searches? 1. The agency relies on the statement of Ms Roberts with respect to the searches undertaken. In it she sets out how she undertook key word and container searches of the agency's TRIM system reflecting identifiers provided in the request for information. She also consulted with the Manager of Governance, Integrity and Ethics. These searches yielded 50 documents. She then identified the three email chains as responsive to the access request when making the access decision. 2. In submissions, at par 23 of the agency's original submissions, the agency submitted that it was incumbent on Ms Styles to show that that there are reasonable grounds to believe that more information exists. "It is only then that the onus shifts to show that the searches were reasonable in the circumstances." This is incorrect. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 257 Principal Member Britton (as she then was) explained: … there is no warrant for interpreting s 53 of the GIPA Act to mean that the obligation to undertake "reasonable searches" is enlivened only where the access applicant establishes to the satisfaction of the agency (or the Tribunal on review) that "there are reasonable grounds to believe that the requested information exists and is held by the agency". Being familiar with the type of information it holds, its information management and retrieval systems, generally the agency will be best placed to make an assessment about the likelihood that the requested information exists and is held by it. Requiring an applicant, who may not be familiar with those systems, to first establish that there are reasonable grounds to believe that the requested information exists and is held by the agency, sits uncomfortably with the obligation imposed by s 53. This is not to say that the stated basis for an applicant's belief that the requested information exists and is held by the agency. Indeed, the basis for that belief may assist the agency in identifying and finding the requested information. However, the failure of an applicant to satisfy the agency (or the Tribunal) that there are reasonable grounds for that belief should not be considered as being dispositive of the question of whether the agency's "information is not held" is the correct and preferable decision. 39 While reluctant to depart from a long line of authority, I have concluded that in the context of an administrative review of an "information is not held" decision made under s 58(1)(b) of the GIPA Act, the application of the two-step test in Shepherd is plainly wrong. Applying that test requires the Tribunal to first determine whether there are "reasonable grounds to believe that the requested documents exist and are documents of the agency". If the Tribunal concludes that the answer to that question is no, the antecedent question of whether the "search efforts made by the agency to locate such documents have been reasonable" does not arise. In my view, that approach is at odds with s 105 of the GIPA Act which places the burden on the agency of establishing that its decision that information is not held, is justified. 40 In a recent decision, the Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153 considered the scope of the Tribunal's power when reviewing an "information not held" decision, stating at [33]: The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has power to review a decision that information is not held, but it has no power to review the sufficiency of an agency's search. 41 I agree with that comment. Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an "information is not held" decision is the "correct and preferable decision". I do not understand the Appeal Panel in Klaric to suggest otherwise. 42 The role of the Tribunal in reviewing an "information not held" decision (ss 58(1)(b), 80(e)) is "to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies on the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision. 43 In the context of a decision made under s 53(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "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": s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency's resources: s 53(5) of the GIPA Act. 1. This analysis was subsequently accepted by a differently constituted Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [19-20] and followed by the Tribunal in cases such as Samandi v NSW Department of Communities and Justice [2020] NSWCATAD 286 and Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317 and Miriani v Transport for NSW [2021] NSWCATAD 16. 2. It represents the status of the law with respect to who holds the burden of proof regarding decisions that information is not held under the GIPA Act. The agency's submissions in this regard are therefore rejected. 3. Ms Roberts statement satisfies me that she undertook reasonable searches for information responsive to Ms Styles' request, in the most efficient manner reasonably available. 4. Ms Styles' submission that annexure C should have been disclosed as part of that process does not withstand analysis. This is so as annexure C is a document that was in Ms Styles' possession when she made the request. It formed the basis of request (d) which asked for information that led to the decision conveyed in annexure C being made. It therefore was outside the scope of her request. Similarly, it was not within the scope of her other requests which sought information relating to meetings between nominated individuals with respect to specified matters. Annexure C does not fit that description. 5. I am therefore satisfied that the agency undertook reasonable searches as required by s 53. Is the information in email chains 2 and 3 the subject of legal professional privilege? 1. In considering whether or not a communication is the subject to legal professional privilege for the purposes of cl 5(1) of Sch. 1 to the GIPA Act, the provisions of the Evidence Act 1995 (NSW) concerning client legal privilege apply: Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 at [70]; AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [36]; EDD v Secretary, Department of Communities and Justice [2019] NSWCATAD 255 [31] and Toplace Pty Ltd v City of Parramatta [2021] NSWCATAD 14. 2. Relevantly, s 118 of the Evidence Act provides: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) 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. 1. To properly understand those provisions, regard need to be had to the definitions set out in s 117. In this case, the following are of particular relevance: client includes the following— (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), … confidential communication means a communication made in such circumstances that, when it was made— (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. … lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. 1. In the context of administrative review proceedings under the GIPA Act, the agency bears the burden of proving the report is the subject of legal professional privilege: see s 105(1) and AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [18]. In Toplace Pty Ltd v City of Parramatta [2021] NSWCATAD 149 Senior Member Higgins explained, at [39] that: "The concept of "legal advice" is fairly broad, and not confined to a lawyer telling the client what the law provides. It includes advising the client what should prudently and sensibly be done in the relevant legal context, but does not extend to what is purely factual or commercial in nature: General Manager, WorkCover Authority of NSW v Law Society (NSW) [2006] NSWCA 84 at [77]; DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191, at [45]. Client legal professional privilege extends to information or advice of a non-legal character, where that information or advice is connected to the giving of legal advice or pending litigation. 1. Contrary to Ms Styles' submission, if there was evidence which satisfied the requirements of that section, then the fact that in-house Counsel provided the advice would not prevent legal professional privilege attaching to the email chain: Waterford v Commonwealth (1987) 163 CLR 54. 2. The difficulty the agency faces is that it has provided no evidence in support of its submission that the information in issue contains confidential communications between officers of the agency and an employee lawyer made for the dominant purpose of providing legal advice. There is no statement from the agency explaining why email chains 2 and 3 are the subject of legal advice privilege under s 118 of the Evidence Act 1995 (NSW). 3. I have read email chain 2 and 3, without redactions, in their confidential form. It is not clear to me that legal advice is sought and given in those emails. 4. The first three emails in email chain 2, described in par 10(2)(a), (b) and (c) above, were not sent or copied to General Counsel. The fourth and fifth emails (par 10(2)(d) and (e)) were simply copied to General Counsel. They did not seek any advice from him. The sixth email (par 10(2)(f)) contains a comment from General Counsel which does not contain legal advice. 5. Email chain 3, consisting of two emails, is an exchange of emails between the Manager Governance, Integrity & Ethics and General Counsel. Whether the communication seeks legal advice or management advice and review is not clear. The fact that the emails are marked confidential "legal advice" or "privileged legal advice" does not of itself demonstrate that they are subject to legal advice privilege. The advice provided does not impress as legal advice. 6. The person providing the advice is identified as General Counsel for the agency and is presumably an employee of the agency. There is no evidence adduced by the agency as to the terms of that person's engagement and duties, as to the independence General Council has within the agency, or as to whether the General Counsel holds legal qualifications or a current practicing certificate. There is an assertion to that effect in submissions, but no evidence provided. There is no evidence as to the nature of General Counsel's duties, and as to whether they include management, mentoring, commercial, liaison, policy or other roles beyond the provision of legal advice. The importance of these was emphasised in General Manager, Workcover Authority of NSW v Law Society of NSW [2006] NSWCA 84. There is no evidence beyond email chain 3 itself as to what advice was sought. 7. The provision of evidence about such matters is the starting point for a consideration of whether information is or is not privileged: see AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at [44] where Young J set out in detail his understanding of the relevant principles and of the types of evidence required. 8. Section 105 places the onus on the agency to demonstrate that email chains 2 and 3 are subject to legal professional privilege. This requires the agency to satisfy the Tribunal that each of the elements which s 118 of the Evidence Act requires for legal advice privilege to apply is satisfied. The onus is on the agency. Beyond assertions in par 19 of submissions in reply (which are not evidence) the agency has not provided any material that even attempts to satisfy that onus: not even to the point of demonstrating that General Counsel is a lawyer. The material provided by the agency, including the email chains themselves, does not satisfy me that the communications they contain are subject to legal advice privilege, or that the advice – such as there is - was provided by a lawyer to a client. The agency has therefore failed to discharge its onus under s 105. 9. I am not satisfied that email chains 2 and 3 are the subject of legal professional privilege. Do the public interests against disclosure relied on by the agency apply to all the information is issue? 1. In issue here is all the information redacted by the agency from email chains 1, 2 and 3. The agency found that disclosure of that information could reasonably be expected to: 1. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (point 1(e)); and/or 2. prejudice the effective exercise by an agency of the agency's functions (point 1(f)). 1. Once again, the agency has failed to provide any evidence in support of those contentions. Ms Robert's statement does not address why she reached those conclusions beyond asserting that she "deemed" the information to be such. Neither in her statement, nor in the decision itself, did she outline her reasons for reaching those conclusions. This is insufficient to discharge the onus on the agency. 2. In its submissions the agency did not rely on points 1(e) and (f) at all. Somewhat puzzlingly, the submissions at par 31 rely on: 1. Point 1(d) to the Table to s 14 - that disclosure of the information could reasonably be expected to prejudice the supply to the agency of confidential information that facilitates the effective exercise its functions (point 1(d)); and 2. Point 1(h) to the Table to s 14 - that disclosure of the information could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether commenced and whether completed) (point 1(h)). 1. The agency has not provided any evidence or material demonstrating how points 1(d) and (h) apply. Beyond relying on those points, rather than points 1(e) and (f), as in the decision, there is no explanation in submissions as to how those points are said to apply and no evidence with respect to them. 2. Instead, the agency in its submissions in reply has, in effect, argued that Ms Styles bears the burden of persuading the Tribunal that the public interest considerations against disclosure do not apply. At par 18, the agency submitted that: … [Ms Styles] submits that [the agency] has not demonstrated how s 14(1)(d) applies to the information sought. However, again she fails to provide any evidence or even a basic path of reasoning as to how she reached this conclusion or why the Tribunal should reach this conclusion. [The agency] submits that this is simply another manifestation of her disagreement with [the agency's] decision, rather than a logical argument. 1. This is plainly wrong. It is the agency that bears the burden of establishing that the decision is justified under s 105, not the access applicant. The agency submissions about the defects in Ms Styles' case, more accurately apply to its failure to demonstrate the existence of any of the public interest considerations against disclosure it has sought to rely on. 2. The agency has not discharged its burden with respect to the existence of any public interest considerations against disclosure. I am not persuaded that any of them apply. Conclusion 1. I have decided the agency has not demonstrated that email chain 2 or 3 is subject to legal professional privileged. The information in those email chains is therefore not subject to a conclusive presumption that there is an overriding public interest against disclosure. 2. Similarly, the agency has not demonstrated that email chains 1, 2 and 3 are subject to any of the public interest considerations against disclosure that it has sought to rely on. 3. There are no public interest considerations against disclosure of any of the information contained in email chains 1, 2 and 3. 4. I am satisfied that disclosure of that information could reasonably be expected to inform the public about the operations of agencies and their policies and practices for dealing with members of the public, such as Ms Styles. This is a public interest in favour of disclosure. In addition, there is the general public interest in favour of disclosure of government information: see s 12(1). 5. In my view the public interests in favour of disclosure of the information contained in email chains 1, 2 and 3 require that it be disclosed. There are no public interest considerations against disclosure to the contrary. 6. I will therefore direct that all the information in email chains 1, 2 and 3 be disclosed to Ms Styles. 7. I will set aside the decision under review and remit the application to the agency to reconsider, in accordance with that direction, within 30 days of the publication of these reasons. Orders 1. I make the following orders: 1. The Tribunal being satisfied that the issues for determination in this matter can be adequately determined in the absence of the parties, by considering the submissions and material lodged by them, dispenses with a hearing in this matter. 2. The decision under review is set aside and remitted to Wollondilly Shire Council for reconsideration in accordance with the direction that all the information in email chains 1, 2 and 3 be disclosed to Ms Styles, such reconsideration to be completed within 30 days of publication of these reasons. 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 Amendments 18 April 2024 - Amended Paragraph [10] [2][c] from "15 March 2023 at 5:59pm" to "17 March 2023 at 5:39pm." 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: 18 April 2024