CITATION: Franks v Warringah Council [2006] NSWADT 124 DIVISION: General Division APPLICANT PARTIES: Franks RESPONDENT Warringah Council FILE NUMBER: 053389 HEARING DATES: 04/04/06-05/04/06 SUBMISSIONS CLOSED: 04/05/2006 DATE OF DECISION: 04/26/2006 BEFORE: Handley R - Judicial Member CATCHWORDS: access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs MATTER FOR DECISION: Principal matter LEGISLATION CITED : Evidence Act 1995 Freedom of Information Act 1989 Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 CASES CITED: Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 O'Hara v North Sydney Council [2005] NSWADT 100 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 Saleam v Director General, Department of Community Services [2002] NSWADT 41 APPLICANT M Sneddon, barrister REPRESENTATION: RESPONDENT S Pritchard, barrister ORDERS: The decision under review is affirmed. REASONS FOR DECISION Background 1 On 9 August 2005, Warringah Council received Mr Franks' application for access to documents regarding illegal seawall construction on Collaroy/Narrabeen Beach, the Council's prosecution of Mr Franks in the Land and Environment Court, and its pursuit of bankruptcy proceedings against him. By letters dated 15 September 2005 and 27 September 2005, the Council notified Mr Franks of its decision to grant him access to various documents but refuse access to others or parts of others on the ground that these were exempt documents or contained exempt material which had been deleted. By letter dated 13 October 2005, Mr Franks sought a review of the Council's determination, and by letter dated 1 November 2005, the Council notified Mr Franks of its decision to confirm its original determination. On 7 November 2005, Mr Franks' application for a review of this decision was filed with the Tribunal. The Relevant Law 2 Pursuant to s 16(1) of the Freedom of Information Act 1989 ('the FOI Act'), "[a] person has a legally enforceable right to be given access to an agency's documents". However, s 25(1)(a) permits an agency to refuse access to a document if it is an "exempt document", the onus being on the agency to establish this. Section 25(4) provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and it appears to the agency that the FOI applicant would wish to be given access to such a copy. 3 Section 6(1) defines 'agency' as including a local authority, and 'exempt document' as including a document referred to in any one or more of the provisions of Schedule 1. The exempt documents in Schedule 1 include, relevantly, those specified in clauses 6 and 10, as follows: 6. Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made. 10. Documents subject to legal professional privilege (1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege. (2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document. 4 Clause 6. For a document to be exempt under clause 6, firstly, it must contain "information concerning the personal affairs" of a person other than the applicant and, secondly, the disclosure of that information would be "unreasonable". What constitutes the "personal affairs" of a person has been discussed in a number of decisions both of the courts and of the Tribunal, but it appears that the general approach to be taken by decision-makers should be one favourable to the applicant. While recognising this, in Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 ('Gilling'), at paragraph 33, Deputy President Hennessy said the purpose of the personal affairs exemption is to allow the public interest in personal privacy to be balanced against the public interest in people having open access to information held by government. Section 31 of the FOI Act requires the agency to take "such steps as are reasonably practicable" to consult any person whose personal affairs may be disclosed by providing access to a document. 5 The leading authority on what constitutes the "personal affairs" of a person is the NSW Court of Appeal decision in Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 ('Perrin's case') where, at 625, Kirby P described "personal affairs" as meaning "the composite collection of activities personal to the individual concerned". He said that "the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales police" could not be classified as disclosing information concerning their personal affairs. However, a distinction may be drawn between public servants acting in the course of their duties, and private individuals, as in Gilling, where Deputy President Hennessy held that the names and addresses of persons who objected to a development were personal information. 6 With regard to when the disclosure of information would be unreasonable, in the recent decision in Martin v Commissioner of Police, NSW Police [2005] NSWADT 23, the Tribunal cited Saleam v Director General, Department of Community Services [2002] NSWADT 41, at paragraph 38, where the President followed the approach adopted by the Commonwealth Administrative Appeals Tribunal in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257, at paragraph 51: "Whether a disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was being obtained, the likelihood of the information being information that the person concerned would not wish to be disclosed without consent, and whether that information has any current relevance." 7 Clause 10. With regard to clause 10, to understand the meaning of "legal professional privilege" one must consider the protection afforded by this privilege at common law. Reference may also be made to the Evidence Act 1995, but since the relevant provisions only apply in respect of the "adducing" of evidence (ss 118 and 119), whereas the application of clause 10(1) is in respect of the "production" of documents in legal proceedings, it is the common law test of legal professional privilege that applies. Thus, while both ss 118 and 119 of the Evidence Act, and the common law (following the decision of the High Court in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49) provide for the 'dominant purpose' test to be applied in determining what communications are privileged, where there are differences between the provisions of the Evidence Act and the common law, for example in relation to loss of the privilege, it is the common law that must be applied in respect of clause 10(1). 8 The applicable principles of legal professional privilege were summarised by Higgins JM in O'Hara v North Sydney Council [2005] NSWADT 100, at paragraph 43, as follows: "(a) legal professional privilege arises from a lawyer/client relationship and is the privilege of the client; (b) the privilege applies to "confidential communications" between the lawyer (as legal advisor) and the client where the dominant purpose of the communication is either: (i) to enable the legal advisor to give or the client to receive legal advice; or (ii) to be used in pending or contemplated proceedings. In such cases, confidential communications with third parties (non-agent third party) may also be privileged if they are for use in such proceedings (see Hynes supra at [37] [Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135] and Law Society of NSW supra at [27] [Law Society of NSW v General Manager, WorkCover Authority of NSW (GD) [2004] NSWADT 40]). (c) the privilege also applies to confidential communications between government agencies and their salaried legal officers which were undertaken for the dominant purpose of obtaining or giving legal advice or for pending or contemplated litigation (see Waterford v Commonwealth (1987) 163 CLR 54 at 62 and 73); (d) the privilege extends to advice which is of a non-legal character where that non-legal advice is connected to the giving of legal advice or for contemplated or pending litigation (see Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 550; Waterford (supra) at 66; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246); (e) the privilege extends to copies of documents that are not privileged where the copy is made for the dominant purpose of obtaining legal advice or for use in pending or contemplated litigation (see Australian Federal Police (supra) at 509 and 597). (f) the privilege does not attach to documents that evidence transactions such as contracts, conveyances, declarations of trust, etc, even if they are delivered to a solicitor or counsel for advice or use in litigation (see Baker v Campbell (1983) 153 CLR 52 at 86, 112 and 122-123); (g) any extension of the scope of the privilege must not go beyond the rationale for the privilege (see Law Society of New South Wales (supra) at [33-35] and the authorities cited therein). That rationale being "the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client" (see Fagan v State of New South Wales [2004] NSWCA 182 at [71]; (h) the privilege is waived if the confidential communication is disclosed to a third party, either expressly or inadvertently (see Mann v Carnell (1999) 201 CLR 1; Goldberg v Ng (1995) 185 CLR 83 and Attorney General (NT) v Maurice (1986) 161 CLR 475)." 9 With regard to loss of privilege, the burden of proof is on the party seeking to establish that the privilege has been lost. The parties made submissions as to the circumstances in which the privilege may be lost, for example, communications that directly affect the rights of a person, as in the case of a communication evidencing a secret trust, or where the privilege is waived, as in the case of conduct that is inconsistent with the maintenance of the confidentiality of the material. There must, however, be prima facie evidence to support the contention. Evidence 10 Mr Franks provided an affidavit, dated 30 March 2006, to which were annexed copies of the relevant documents concerning the decision under review. Mr Franks' FOI application, sent under a covering letter from his solicitors dated 4 August 2005, sought access to documents relating to "illegal seawall construction on Collaroy Beach/Narrabeen Beach", to documents concerning the Council's prosecution of Mr Franks and others in the Land and Environment Court, documents relating to "stormwater and/or beach erosion between Devitt Street and Mactier Street from 1985 to date", and documents relating bankruptcy proceedings brought by the Council against Mr Franks. 11 By letters dated 15 September 2005 and 27 September 2005, the Council notified Mr Franks of its decision to grant him access to various documents but refuse access to others or parts of others on the ground that these were exempt documents or contained exempt material which had been deleted. By letter dated 13 October 2005, Mr Franks sought a review of the Council's determination, and by letter dated 1 November 2005, the Council notified Mr Franks of its decision to confirm its original determination. The documents to which access was refused either in whole or in part were listed with a short description in a Table attached to this letter. 12 The Council filed four volumes of documents that are the subject of these proceedings: three 'confidential' files containing the documents claimed to be exempt, and one file containing documents to which partial access had been granted with the claimed exempt matter deleted. I have summarised the reasons for the exemptions claimed by the Council by reference to the reasons given for its decision stated in the above letters and the additional reasons provided in relation to these proceedings on 13 February 2006. 13 Clause 6 personal affairs. The Council claims documents D1 and F23 are exempt documents by reason of the clause 6 personal affairs exemption because the documents contain information that concerns the personal affairs of various individuals: "The personal affairs that would be disclosed include the identities and details of individuals (such as phone numbers and addresses), as well as their personal views and/or experiences in relation to certain events" (Council's letter dated 1 November 2005). Having regard to the circumstances in which the documents were created, the Council considers the documents contain matter the disclosure of which would be unreasonable. 14 In relation to document F23, the documents were complaints made to the Council regarding unauthorised works on Narrabeen Beach. With regard to D1, the Council claims to have taken reasonable steps to consult with the nine individuals affected to ascertain whether they agreed to the information concerning their personal affairs being provided to Mr Franks. (These steps are set out in a confidential affidavit of Eskil Julliard, a solicitor employed by the Council, dated 7 March 2006.) Two individuals could not be contacted, two individuals agreed and five individuals did not agree to the information being provided to Mr Franks. Access was therefore given to Mr Franks to the information concerning the two individuals who had given their agreement. 15 Clause 10 legal professional privilege. The Council claims legal professional privilege in respect of a large number of documents on the following basis. First, the Council claims that specified documents are confidential correspondence ("being letters, faxes or memos") between the Council's lawyers and the Council: "where the dominant purpose of the communication was to enable the legal adviser to give, or Council to receive, legal advice. For many of these documents, the legal advice was to be used in relation to pending or contemplated legal proceedings." 16 Second, the Council claims that specified documents ("being memos, reports, minutes, faxes emails and file notes") record confidential communications between the Council's lawyers, its corporate lawyer and the Council (as client) where the dominant purpose of the communication was to enable the legal adviser to give, or Council to receive, legal advice. Again, in the case of many of these documents, the legal advice was to be used in relation to pending or contemplated legal proceedings. Some of the documents also attached other legally privileged correspondence between the Council and its lawyers. 17 Third, the Council claims that documents C8 and F5 are confidential letters from engineering experts engaged by the Council and the Council's lawyers, where the dominant purpose of the communication was to be used in relation to legal proceedings in the Land and Environment Court. 18 The Council also tendered an open affidavit from Mr Julliard dated 9 March 2006 providing background information in relation to the Council's claim to the clause 10 exemption. Review of the documents 19 I have examined the documents the Council claims to be exempt or partially exempt together with its counsel's written submissions on particular documents in the three volumes of documents claimed to be exempt. 20 Clause 6 personal affairs. Document D1, a submission to the Council, gives the name, address and telephone number of the author and states the author's wish to remain anonymous. In his confidential affidavit dated 7 March 2006, Mr Julliard stated that he contacted the author who confirmed the author's wish that the personal details not be released. In my view, release of that part of the document would reveal the details of the individual – a private citizen - and, in the circumstances, the disclosure of that information to Mr Franks would be unreasonable. 21 As stated in the Council's internal review decision letter to Mr Franks dated 1 November 2005, document F23 gives the name and telephone number of an individual who complained to the Council about unauthorised works on Narrabeen Beach. When contacted by Mr Julliard, the individual expressed the wish that personal details not be released to Mr Franks (Mr Julliard's affidavit dated 7 March 2006). In my view, release of the relevant part of the document would reveal details of the individual and, in the circumstances, the disclosure of that information would be unreasonable. Thus, I am satisfied that both documents contain exempt matter, and the Council acted correctly in releasing the documents to Mr Franks with the exempt matter deleted. 22 Clause 10 legal professional privilege. The first of the three grounds for the Council's claim that specified documents are exempt is that they are confidential correspondence between the Council and its lawyers where the dominant purpose of the communication was the provision of legal advice to the Council. The specified documents are A5, A7, A8, A10, B2, C1 - C6, C10, C14, D2 – D4, D6, D9, D16, D18 – D19, D21, E1, E3 – E5, F1 – F4, F6, F10 – F14, F18 – F22, F24, G1, G3 – G7, H1, I1 – I6, I8, J1 – J11, L1 – L6, L10 – L11, O9 – O10. I have reviewed the documents and am satisfied that the letters, faxes and memos constitute confidential correspondence between the Council and its lawyers where the dominant purpose of the communication was the obtaining or receiving of legal advice, in many instances in relation to pending or contemplated legal proceedings. I note that access to the annexures to document F24 has been granted. 23 The second of the three grounds for the Council's claim that specified documents are exempt is that they record confidential communications between the Council's lawyers, its corporate lawyer and the Council (as client) where the dominant purpose of the communication was the provision of legal advice to the Council. The specified documents are A1 – A4, A6, A9, B1, C7, C9, C11 – C13, D5, D7 – D8, D10 – D15, D17, D20, E2, E6, F7 – F9, F15 – F17, G2, H2, I7, I9, K1 – K7, L7 – L9, M1 – M10, N1 – N12, and O1 – O8. I have reviewed the documents and am satisfied that these memos, reports, minutes, faxes, emails and file notes record confidential communications between the Council's lawyers, its corporate lawyer and the Council where the dominant purpose of the communication was to enable the legal adviser to give, or the Council to receive, legal advice. Some of the documents also attached privileged correspondence between the Council and its lawyers. Again, in many instances, the legal advice was to be used in relation to pending or contemplated legal proceedings. I note that access to a number of the documents has been granted with the exempt material deleted, for example, documents M1 to M10. Those documents to which partial access has been granted are identified in the Table attached to the Council's letter dated 1 November 2005, and copies of these documents with deletions have been provided to the Tribunal in a separate volume. My review indicates that the partial access granted is appropriate. 24 The last of the three grounds for the Council's claim that specified documents are exempt is in relation to documents C8 and F5. The Council claims these documents are confidential letters from engineering experts engaged by the Council and the Council's lawyers, where the dominant purpose of the communication was to be used in relation to legal proceedings in the Land and Environment Court. Both documents are letters from consulting engineers to the Council's solicitors in relation to Land and Environment Court proceedings against Mr Franks and contain engineering advice. In my view, they should be categorised as falling within paragraph (d) of Higgins JM's summary of the principles of legal professional privilege set out in paragraph 8 above, being advice of a non-legal character connected with the giving of legal advice in relation to contemplated or pending litigation. 25 There is no evidence before the Tribunal to suggest that the privilege claimed in respect of the above documents has been waived. I am satisfied the documents reviewed should be categorised as exempt documents as claimed by the Council. Conclusion 26 Although the Council has denied Mr Franks access to a relatively large number of documents, it is apparent that he and the Council have been in dispute over a number of years and that there have been various legal proceedings between the parties. My review indicates that the Council has acted appropriately and in accordance with the FOI Act in respect of Mr Frank's application for access to documents. The determination dated 1 November 2005 is therefore affirmed. Decision 27 The decision under review is affirmed. 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.