Saggers v Director General, Attorney General's Department [2005] NSWADT 193

CITATION: Saggers v Director General, Attorney General's Department [2005] NSWADT 193 DIVISION: General Division APPLICANT PARTIES: Colin Arthur Saggers RESPONDENT Director General, Attorney General's Department FILE NUMBER: 053060 HEARING DATES: 18/07/2005 SUBMISSIONS CLOSED: 18/07/2005 DATE OF DECISION: 16/08/2005

BEFORE: O'Connor K - DCJ (President) APPLICATION: access to documents - legal professional privilege - Freedom of Information Act - access to documents - legal professional privilege MATTER FOR DECISION: Principal Application LEGISLATION CITED : Freedom of Information Act 1989 Sydney Market Authority (Dissolution) Act 1997 Cianfrano v Director-General Premier's Department NSW & anor [2004} NSW ADT 255 CASES CITED: Cianfrano v Director General New South Wales Treasury [2005] NSW ADT 7 Trade Practices Commission v Sterling (1979) 36 FLR 244 Attorney General of the Northern Territory v Kearney (1985) CLR 500 APPLICANT REPRESENTATION: In Person RESPONDENT M Allars, barrister ORDERS: Decision under review is affirmed

REASONS FOR DECISION 1 This is another in the series of Freedom of Information cases being pursued in the Tribunal by Mr Saggers, a Paddy's Market trader of long standing, and Mr Cianfrano, a fruit grower. Through a series of applications made under the Freedom of Information Act 1989 (FOI Act), Mr Saggers and Mr Cianfrano have tried to obtain all the documents held across the Government relating to the sale in 2002 of the Sydney Markets site to Sydney Markets Limited (SML). The agencies to which applications have been made include the Treasury, the Department of Premier and Cabinet, the Department of Agriculture and the successor Department to the Department of Public Works – the Department of Commerce. There have also been applications directed to Minister's offices. 2 The administrative history leading up to the sale process has been set out in other decisions of the Tribunal: see, for example, Cianfrano v Director-General, Premier's Department NSW & anor [2004] NSWADT 255 at [22] and ff; and Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 at [7]-[8]. As the Tribunal understands the history, the markets were run until at least 1996 on an essentially co-operative, non-profit basis. From 1997 to 2002, SML operated the Sydney Markets under a lease arrangement. In 2002 the Government sold the site and buildings to SML. 3 Mr Saggers and Mr Cianfrano are very critical of the fact of the sale and the terms of the sale. They are critical of the impact of the sale on traders and suppliers. They have referred now in several cases dealt with by the Tribunal to what they see as the very low price paid for the markets as compared to valuations of the site published in the annual reports relating to the administration of the markets in the early 1990s by the agency then responsible for the markets, the Sydney Markets Authority. They are also critical of one of the components of the sale agreement of 2002. The agreement took into account SML's agreement to discontinue litigation it had commenced against the Government in relation to disputes between SML and the Government. 4 The access application under notice in these proceedings was received 20 December 2004 and directed to the agency which was engaged to provide legal services to some of the agencies involved in the sale process, the Crown Solicitor's Office (CSO). The CSO, as the name indicates, is a legal service operating within the overall framework of the Government. It is a business unit of the Attorney General's Department. The Department has handled this application on behalf of the CSO. It is the respondent in these proceedings. 5 Following consultation with Mr Saggers, he and the Department agreed to the following as the scope of the request: 1. Taxable invoices issued by the Crown Solicitor's Office; 2. The statement of claim issued by Sydney Markets Ltd against the State of NSW; and 3. Documents relating to the practical steps leading to the settlement and filing of a notice of discontinuance, including letters of offer and response, correspondence relating to the notice, the notice itself and any deed of release concerning the settlement. 6 The Department was unable to deal with the request within the 21 days provided by the FOI Act. Among the reasons for the delay was its need to consult SML and liaise with the CSO. The Department kept the applicant informed of the reasons for the delay. On or about 25 January 2005 the applicant raised the issue of whether a deemed refusal of his application had occurred by reason of the failure to respond in time (FOI Act, s 24(2)). There is separate, earlier correspondence (dated 14 January 2005) asking for an internal review based on that assumption. The net result is that the Department appears to have treated itself as having made a determination to refuse all documents on a deemed basis. This conclusion is based on the fact that the Department issued by letter dated 11 February 2005 a set of reasons for decision headed 'Review of Determination', described as a determination under s 34 of the FOI Act (the internal review provision). The Department released 5 documents in full. It released partially 17 documents, claiming that the remainder of the documents was exempt on various grounds; refused the whole of 46 documents, claiming they were exempt on various grounds. 7 In issue as a result of the internal review determination were 63 documents. At hearing the Department altered in some instances the basis for its claim to exemption. The applicant did not press for release of 15 of the documents. The balance that remain in issue is, therefore, 48 documents. In all instances the Department asserted that the material for which exemption was claimed was protected by legal professional privilege. The Department described as 'supplementary' its reliance on other exemptions. (Note that the numbering of Documents used in this decision is that used by the Department at hearing, as distinct from the numbering used in the Department's internal review determination.) 8 The applicant did not dispute the claims for exemption as they related to the documents listed at groups 3 and 10 of the internal review determination. (There were 10 groups, with group 1 being the documents released in full.) The group 3 and group 10 documents have to do with the bills rendered by the CSO. Prior to hearing, there was a substantial release of this material. The covering letter was released in full, the tax invoice was released in full, references to the fee earner, the work performed and the hourly rate were deleted. Where it was an invoice in respect of a disbursement, the hourly rate of counsel, the work performed by counsel and the cost of expert reports were deleted. The group 3 documents are now numbered as 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30. The group 10 documents are now numbered as 60 and 63. 9 The documents that remain in dispute, using the internal review determination groupings and the new numbering, are the following: Group 2: Documents 49 and 51(partly released) Group 4: Documents 61 and 62 (partly released) Group 5: Documents 1 and 2 Group 6: Documents 3, 4, 5, 6, 7, 11, 12, 13, 15 and 16 Group 7: Documents 31, 33 and 58 Group 8: Documents 32, 34, 35, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 50, 52, 53, 54, 55, 56, 57, 59 Group 9: Documents 8, 9, 10, 14 and 17. 10 At hearing the Department amended the basis for its refusal of many of the documents. It now claimed that all the documents are protected by legal professional privilege. It described as 'supplementary' exemptions the claims that it made for protection of the documents on other grounds. 11 As to Documents 31to 59 inclusive it claimed that they were, in addition, protected by cl 13, the confidential material exemption; and made the same claim in relation to Documents 1, 2, 9, 10, 14 and 17. As to the Documents that remain in dispute numbered 14, 18, 20 to 31 inclusive, 33, 58 and 60 to 63 inclusive, it relied on cl 7(1)(b) and (c) (the business affairs exemption). As to Documents 1, 2, 32 and 59, it relied on cl 9 (the internal working documents exemption). The Department tendered two affidavits from an officer of the Department (one open, one confidential) going to the discretionary considerations taken into account in applying these additional categories of exemption to the documents. 12 Mr Saggers' application was the subject of detailed submissions as to the law prepared by his colleague Mr Cianfrano. Legal Professional Privilege 13 If the claim of legal professional privilege is made out in relation to all of the documents in dispute, it is unnecessary to go on to consider the other heads of claim. 14 Clause 10 of Schedule 1 to the Act provides: ' 10 Documents subject to legal professional privilege