CITATION: Z v Director General, New South Wales Department of Education and Training [2008] NSWADT 19 DIVISION: General Division APPLICANT Z PARTIES: RESPONDENT Director General, New South Wales Department of Education and Training FILE NUMBER: 073127 HEARING DATES: On the papers SUBMISSIONS CLOSED: 2 October 2007 DATE OF DECISION: 1 February 2008 BEFORE: Wilson R - Judicial Member CATCHWORDS: Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - legal professional privilege MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Freedom of Information Act 1989 McGuirk v UNSW [2007] NSWADT 204 P v Greater Western Area Health Service [2007] NSWADT 87 CASES CITED: Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 UNSW v McGuirk [2006] NSWSC 1362 Watt v Forests NSW [2007] NSWADT 197 APPLICANT In person REPRESENTATION: RESPONDENT S Bilbe-Taylor, solicitor 1. In relation to document number 1 identified in these reasons the respondent's decision is set aside, the document not being an exempt document, with access to be granted 2. In relation to document number 2 identified in these reasons, the document is an exempt document but the parties are granted leave to list the discretionary question whether access should be refused to this document within 21 days of receipt of these reasons, should either party so wish. If no such application be made within that time, the respondent's decision in relation to that document is set aside with access to be given. If such application be made the Tribunal will hear and determine the question on a date to be fixed 3. In relation to documents numbered 3, 5, 7, 12 and 13 identified in these reasons, the respondent's decisions are affirmed and access to these documents is refused ORDERS: 4. In relation to document number 4 identified in these reasons, the respondent's decision is set aside with the finding that the document is exempt in part but that, as a matter of discretion, the Tribunal declines to refuse access to the document, access thereby being granted to the whole document 5. In relation to documents numbered 6, 8, 10 and 11, the respondents decisions are set aside, the documents not being exempt documents, with access to be granted 6. In relation to document number 9 identified in these reasons, the respondent's decision is set aside with the finding that part of page 1 of this document is exempt as stated in these reasons, and that access to that part is refused as a matter of discretion, the remainder of the document to be released 7. As there are residual documents not dealt with in these proceedings, the respondent's decision is set aside to the extent stated in these orders but, as to other documents with which it dealt, is affirmed. REASONS FOR DECISION 1 These proceedings are brought by way of application under the Tribunal's enabling act wherein the Applicant seeks review of a determination made by the Respondent under the Freedom of Information Act 1989 (NSW). They have been prepared and submitted for decision without any jurisdictional or other preliminary issue being raised for determination by the Tribunal. At a planning meeting on 02 October 2007 the parties jointly requested the Tribunal to determine the application by consideration of the papers filed in the proceedings. Consequently the matter was not set down for evidence and oral submissions and the Tribunal reserved its decision on that day. 2 At the abovementioned planning meeting the parties indicated that they had reached common ground as to the documents that were then in issue: they had earlier resolved issues as to other documents by discussions that they had put in train. This common sense approach has greatly simplified the Tribunal's task and the parties are to be commended for this. In these circumstances it is appropriate for the Tribunal to determine the proceedings on the papers as the parties so wish. 3 The documents presently in issue are identified in a schedule (Schedule A) to the respondent's submissions filed 15 August 2007 (admitted as exhibit R1 in the proceedings). The applicant has been provided with a copy of this schedule. The respondent's submissions also attach a copy of the documents over which exemption from release is still claimed: they are 13 in number, although some of these documents contain more than a single folio. The applicant has not been given a complete copy of these documents but has been provided with partially deleted copies (see exhibit R2). The respondent has filed no additional evidence or materials. Primarily the respondent relies upon what appears on the face of the documents in evidence. 4 The applicant filed submissions on 21 September 2007 together with a number of attachments: these documents are admitted as exhibit A1. Consequently, the materials which the parties wish the Tribunal to have reference to are those contained in exhibits A1, R1 and R2. Proceeding in this way, whilst apposite in the circumstances, means that the Tribunal does not have the opportunity of hearing any objections as to evidence and does not have the opportunity to raise with the parties any issues, as to evidence or otherwise, that the Tribunal may think appropriate. However, the parties have requested the Tribunal to proceed in this way and therefore must be taken to have accepted these limitations and to have advanced all material that they deem relevant to the question of the exemptions under the Act and the Tribunal's discretion to refuse access should the documents fall within one of the exemptions. The Tribunal may of course decline to refuse access where a document falls within an exemption, as the authorities cited in the headnote above well show. The parties must be taken to have been aware of this when they submitted the proceedings for decision on the papers alone, however the respondent's submissions do not address this aspect in any detail. 5 All the documents in question concern a period in time when the applicant's conduct, as an employee of the respondent, was under the respondent's consideration. There is no need to elaborate in any further detail about these matters in these reasons at this stage as the exemptions relied upon arise under clauses 10 and 13 of schedule 1 to the Freedom of Information Act 1989: these exemptions deal with legal professional privilege and information obtained on a confidential basis. It is sufficient to simply say that the circumstances were of a sensitive nature and were such that it was quite likely that the respondent would have sought legal advice and could well have obtained information in confidence. It should also be noted that there is an ongoing dispute that the applicant is pursuing in relation to the inclusion of his name on a particular list of names maintained by the respondent or by the Commission for Children and Young People (see applicant's submissions appendix "C"). Such general findings do not of course make out the exemptions claimed, further consideration being required. 6 The applicant's submissions (exhibit A1) contain a great deal of evidentiary material as well as submissions dealing with the application of legal principle and as to the conclusions for which the applicant contends. He has also discussed a number of authorities at length. As the respondent has filed no direct evidence contradicting the applicant's factual assertions, the Tribunal will accept them at face value save where the Tribunal is of the view that they are implausible or of little weight. Generally though, because of the exemptions in issue, the focus is on circumstances pertaining to the respondent rather than to the applicant. The applicant's evidence though does confirm the general finding stated above. 7 The respondent's submissions at paragraph 7 put a general argument that the documents under review are not documents containing information concerning proceedings before the Commission for Children and Young People and therefore fall outside the scope of the initial application for access. At the abovementioned planning meeting the respondent did not assert that it was still pressing this argument. There is no evidence before the Tribunal upon which it can determine whether the documents do or do not relate to any such proceeding. In any event the applicant's initial request sought access to documents that had been refused in an earlier application for access: the respondent has not adduced any evidence showing that the documents under review were not of this nature and has treated the subject documents as falling within the applicant's current request. Consequently the Tribunal holds that all of the documents listed in schedule A to exhibit R1 fall within the request. Further, the applicant asserts that he comes within the legislation (exhibit A1 paragraph 11), as relevant proceedings were commenced against him, but it is doubtful whether this argument really deals fully with the point the respondent is making here. However, this point does not need to be pursued. DOCUMENT NUMBER 1 (SCHEDULE A) 8 This is a single page document, no part of which has been released to the applicant. Whilst the author of that document clearly regarded the document itself as being confidential there is no evidence suggesting that the information recorded by the author was in fact obtained in confidence or that it has some nexus with the giving of legal advice. The two exemptions claimed for this document are not made out. DOCUMENT NUMBER 2 (SCHEDULE A) 9 No part of this document has been released to the applicant although he has been advised, by reason of its description in Schedule A, that it is a 5 page briefing dated 10.11.99. The purpose of the document was to submit information and to make recommendations for certain steps to be taken. One of these steps is noted as being the obtaining of legal advice. This document was authored as an initial step in obtaining this advice. In addition, the fourth paragraph on page 83 records legal advice that had been earlier given. The Tribunal is satisfied that there is a sufficient nexus with obtaining legal advice, and that this was the dominant purpose in the making of the document, so as to bring this document within clause 10. Accordingly, it is an exempt document. 10 The Tribunal however has a discretion to decline to refuse access even though the document be exempt. Much of the information recorded in this document would be well known to the applicant and it may well assist him in relation to the ongoing dispute that he is presently pursuing. Therefore, there appears to be a substantial argument that the Tribunal should follow this course. However, as the respondent does not appear to have turned its mind to this issue in submissions, the Tribunal will grant both parties leave to apply to re-list the proceedings to further consider this issue should either so wish. In the absence of any such application the Tribunal will decline to refuse access to this document. DOCUMENT NUMBER 3 (SCHEDULE A) 11 On its face this document clearly falls within the clause 10 exemption. Excision is not practicable pursuant to section 25(4) of the Act. The respondent is pressing this claim and there is no evidence that legal professional privilege has been waived. By this document legal advice was rendered to the respondent. The contents of this document do not suggest that its disclosure could assist the applicant with his ongoing dispute. In these circumstances the Tribunal's discretion should be exercised so as to affirm the respondent's determination in relation to this document, and the Tribunal will so order. DOCUMENT NUMBER 4 (SCHEDULE A) 12 This document is a file note made by an officer directing or recommending that certain steps be taken in connection with the matters then under discussion between the respondent and the applicant. There is no indication that the matters recorded in this file note were obtained in confidence, nor that this document has any nexus with obtaining legal advice. However, it does refer to having obtained legal advice, and by deduction it is possible to ascertain what that legal advice was. To this extent the clause 10 exemption would apply, but not otherwise. 13 Whilst excision of the exempt part of the document is clearly possible, there is no real need for this. The contents of the document set forth a well balanced and reasonable approach, disclosure of which would not cause detriment to the respondent. The Tribunal can discern no good reason, as a matter of discretion, why the applicant should be refused access to this entire document. DOCUMENT NUMBER 5 (SCHEDULE A) 14 This document was prepared by a legal officer to outline the agenda for a forthcoming meeting. It is clear from the agenda that legal issues were to be discussed at that meeting and that legal advice would be given, either at the meeting or at a later stage. The agenda concerned litigation that was then on foot. This was the document's only purpose. Clearly clause 10 is satisfied. 15 The contents do not assist the Tribunal in the exercise of its discretionary powers and there is no other evidence that is here relevant. It is impossible to ascertain any benefit that would flow to the applicant by the release of this document. As the respondent has not waived privilege and the exemption is clearly established, discretion requires that access to the document be refused. DOCUMENT NUMBER 6 (SCHEDULE A) 16 A series of email communications are recorded in this document whereby an officer seeks advice from a legal officer. On their face these communications do not obviously suggest that legal advice was sought and given; rather the parties appear to be discussing correspondence and the timing of an appropriate response to a particular letter. Whilst it could be, if the facts were more fully known, that the advice was legal in nature, the Tribunal is unable to find on the materials before it that this was so. Consequently, the exemption claimed is not satisfied. DOCUMENT NUMBER 7 (SCHEDULE A) 17 By this document legal advice was rendered to a departmental officer: the document shows this on its face. The clause 10 exemption is satisfied in relation to this document. 18 The advice rendered by this document is substantial and has been well considered. There is no evidence of waiver of the privilege and the respondent is pressing the exemption claim. Whilst the applicant would most likely benefit from having access to this document the consideration that the respondent at this stage has a need to keep its legal advice confidential in relation to the matter with which that advice deals, the Tribunal's discretion should be exercised so as to refuse access to the document. DOCUMENT NUMBER 8 (SCHEDULE A) 19 This document contains a chronology of events, comments thereon and finally advice and recommendation. The qualifications of the author are not the subject of evidence. This document does not contain legal advice, nor does it appear on its face to have been made for the purpose of obtaining such advice. Rather it was prepared to recommend the taking of certain action and the reasons therefore Clause 10 has no application. 20 The information recorded therein concerns what may be generally regarded as "public" events and it is not open, on the face of this document, to find that any of this information was obtained in confidence. The clause 13 exemption therefore is not satisfied. 21 The respondent does not rely upon any other ground of exemption in relation to this document. DOCUMENT NUMBER 9 (SCHEDULE A) 22 This document is similar in nature to document number 8 just considered. For the same reasons expressed in relation to document number 8, document number 9 is not an exempt document, save for the following qualification. 23 The first page of document number 9 records legal advice that had been rendered in the past and to this extent the clause 10 exemption is attracted and satisfied. There is no evidence suggesting that the privilege attaching to any of the prior legal advice so recorded has ever been waived. 24 As this recorded legal advice is closely associated with matters in which the respondent is currently involved, the Tribunal's discretion requires that access be refused to part of page 1 of this document, namely those paragraphs appearing between the sub-heading "Acton Details" and the bottom of that page. DOCUMENT NUMBER 10 (SCHEDULE A) 25 This document has no nexus with seeking or obtaining legal advice, despite the identity of the author. Equally, there is nothing in this document which makes it open for the Tribunal to find that the information recorded therein was obtained in confidence. The clause 10 and 13 exemptions are not satisfied in relation to this document. 26 The Tribunal notes that the respondent's submissions may not rely on the clause 13 exemption for this document. As schedule A suggests otherwise, this has been considered in any event. DOCUMENT NUMBER 11 (SCHEDULE A) 27 This document records steps taken to obtain information. The dominant purpose for obtaining this information was clearly to progress the actions that the respondent had in train in relation to matters involving the applicant. Whilst the respondent may well have sought legal advice at various stages the Tribunal cannot find that the dominant purpose of these communications was to obtain information for the purpose of obtaining legal advice. The clause 10 exemption is therefore not made out. DOCUMENTS NUMBER 12 and NUMBER 13 (SCHEDULE A) 28 Document number 12 was prepared in order to obtain legal advice, as it clearly shows on its face. Document number 13 renders legal advice. Clause 10 is satisfied in relation to both as a perusal of those document show. Excision is not practicable. 29 Both these documents concern events that are by now well known to the applicant. To state the basis for this would be to reveal what is contained in these exempt documents. There is no evidence before the Tribunal suggesting a good reason why the Tribunal should decline to refuse access: there is nothing upon which the Tribunal could find that access would now be of some assistance to the applicant. 30 Consequently, access to these documents is refused. ORDERS 31 The Tribunal will make orders in accordance with these reasons. 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.