CITATION: Cianfrano v Director General, Attorney Genera's Department (No 2) [2007] NSWADT 231 DIVISION: General Division APPLICANT PARTIES: Robert Cianfrano RESPONDENT Director General, Attorney General's Department FILE NUMBER: 053411 and 063055 HEARING DATES: 12 June 2007 SUBMISSIONS CLOSED: 28 July 2007 DATE OF DECISION: 2 October 2007 BEFORE: Montgomery S - Judicial Member CATCHWORDS: access to documents - adequacy of search - access to documents - business affairs - access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - business 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 : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Cianfrano v Director General, Attorney General's Department [2007] NSWADT 8 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 Dezfouli v Department of Corrective Services [2007] NSWADT 25 CASES CITED: General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 P v Greater Western Area Health Service [2007] NSWADT 87 Retain Beacon Hill High School v NSW Treasury [2007] NSADT 55 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 APPLICANT C Saggers, Agent REPRESENTATION: RESPONDENT M Dalla-Pozza, Solicitor ORDERS: In accordance with the reasons provided in Cianfrano v Director General, Attorney General's Department [2007] NSWADT 8 the decision under review is affirmed. REASONS FOR DECISION 1 These applications relate to Mr Cianfrano's requests to the Director General of the NSW Attorney General's Department ("the Department") seeking access to documents under the Freedom of Information Act 1989 ("the FOI Act"). The two matters were heard together and the parties made submissions common to both applications. The relevant facts are set out in the decision recorded as Cianfrano v Director General, Attorney General's Department [2007] NSWADT 8. In that decision I found that each of the exemptions claimed by the Department had been made out. 2 In Nicholas J's judgment in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 the Supreme Court confirmed that the Tribunal has discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it. The Court in McGuirk did not provide guidance as to the proper exercise of that discretion. In light of that decision I considered that it was appropriate that the parties have an opportunity to present argument with respect to how the Tribunal's discretion should be exercised. I invited the parties to make submissions in regard to whether the material that Mr Cianfrano seeks should be released notwithstanding that it has been found to be exempt. 3 The matter was listed for further hearing on 12 June 2007. Each of the parties made submissions on that day and each has filed written submissions on the point. The matter is to be determined on the basis of those submissions. The Applicant's case 4 The Applicant contends that it is the duty of the Tribunal to determine, after full deliberation, what is the correct and preferable decision n the matter. He says that the considerations regarding the exemption must be interpreted in light of achieving the fundamental government principles of openness accountability and responsibility. The public interest in achieving those principles must then be weighed against any countervailing public interest against disclosure. This is where the override balance arises. 5 He submits that the Tribunal should reject the philosophical point of view that good government can only operate in secret. He says that the legislation is about the public's right to have access to government information so as to inform itself of how its government is performing. 6 He says that the relevant question to be asked is 'would the release of the document better serve the greater public purpose, even though a prima facie case has been made out for the exemption?' He says that where a case is made out that public disquiet exists, the public interest may require release of documents that either confirm the grounds for public disquiet or dispel them. It is our submission that once a case of public unease or anxiety is established then the public interest override should be applied. The decision maker should not have to decide whether a matter has reached a certain stage of public controversy or not, the fact that the disquiet exists and would be exorcised by the release of the documents is enough. 7 The Applicant contends that the nature of the "public disquiet" in this case is the concern that the Crown Solicitor's Office is acting in a manner of protecting rather than independently advising the executive government in a not impartial way. He submits that there is a well-documented public perception of collusion by the Crown Solicitor's Office and various government agencies to defeat the intention of the NSW Parliament i.e. the right of NSW citizens to obtain access to documents created by public officials by way of application under the FOI Act. He says that there is a public perception that the Crown Solicitor's Office acts outside of the acceptable legal convention and is more like a 'hired gun' than a true model litigant. 8 It is submitted that release of the documents would demonstrate whether or not the agency sought advice from the Crown Solicitor's Office on how to avoid a member of the Premier's Department having to handle the FOI after it had been established that there were issues of malfeasance to be case managed by the agency. Release of the documents would show proper accountability and demonstrate in a public manner that government decision making was being exercised lawfully and within reason and dispel any disquiet as to improper conduct by the Crown Solicitor's Office and the respondent agency. The Applicant submits that this is the correct and preferable decision and that the Tribunal should exercise its override discretion to achieve that result. 9 He argues that there is nothing in the FOI Act to suggest that legal privilege should be treated differently to the other exemptions available under the Schedule 1 to the FOI Act. He says that Parliament did not envisage that the ordinary citizen would need to engage the services of a solicitor to obtain documents under the FOI Act. The Act states quite specifically that the public have a legal enforceable right to the requested documents and Parliament intended that the discretions conferred by the FOI Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information. 10 The Applicant submits that the public owns government documents. FOI is simply the mechanism by which the public source and access those documents. He says that it is not an applicant who is required to demonstrate that the public have an urgent and compelling reason why the agencies embargo to the release of government documents to the public should be lifted. He submits that the Department has failed to establish a case as to why the Tribunal's discretion should not be exercised to order that the documents be released. 11 The Applicant referred to section 59A of the FOI Act which provides that for the purpose of determining under the Act whether the disclosure of a document would be contrary to the public interest, it is irrelevant that the disclosure may cause embarrassment to the government, or that a loss of confidence in the government may cause the Applicant to misinterpret or misunderstand the information contained in the document, because of an omission from the documents, or for any other reason. He submits that these provisions weigh heavily in favour of disclosure and require clear and unambiguous words to the contrary for documents to be considered exempt and consequently withheld. 12 He says that the FOI Act was enacted for the benefit of all NSW citizens, and to be administered without fear or favour. It is to be interpreted as widely as possible to give access to the public to information that it is held in the public service, unless it can be demonstrated that it is against the public interest to do so. He submits that fermenting public disquiet does not serve the public good and as such was not the intention and the will of Parliament in creating the FOI Act. The Department's case 13 The Department contends that Nicholas J's judgment on the override discretion is, technically, obiter dicta, however, it accepts that, the Tribunal will be compelled to follow this obiter in the present case. The Department also formally submits that the Tribunal does not have power to order the release of documents which are exempt under the FOI Act and that the decision in McGuirk is incorrect for, among others, the reasons expressed in Neary. 14 The Department submits that the "public interest" is not the appropriate test to be utilised in determining whether the override discretion should be exercised and that the "correct and preferable decision" approach should apply. 15 The Department submits that in exercising the override discretion, the Tribunal should be aware that Parliament intended there be a balance struck between the right of the public to access documents and the sometimes-competing consideration of "the proper administration of the Government". The Tribunal must, in the Department's submission, exercise its discretion in such a way as to promote this balance. The Department says that Parliament has already largely struck this balance by enacting a number of detailed statutory exemptions to the general right of access. In these exemptions, Parliament has set out in some detail the considerations to be taken into account in evaluating these competing considerations. 16 Mr Dalla-Pozza argues that in the case of every exemption, there are public policy reasons why Parliament has limited the public's general right of access to those documents. He says that the exercise of the discretion will almost inevitably defeat the purpose of Parliament in including the relevant exemption in the first place. 17 He referred to two decisions considering the override discretion. In Dezfouli v Department of Corrective Services [2007] NSWADT 25 Judicial Member Pearson found that the exemption in clause 4(c) (which provided an exemption where disclosure of information in the document could reasonably be expected to endanger the life or physical safety of a person) was made out and she then found that it was not appropriate to exercise the override discretion. She said at paragraph [39]: "I have decided that there is a reasonable possibility that disclosure of the information pertaining to the alert could endanger the life or physical safety of an identifiable person. It would defeat the purpose of the exemption in clause 4 if that information were to be disclosed to the applicant. In those circumstances, the correct and preferable decision is that access to documents 17, 21 and 40-44 be refused". 18 In Retain Beacon Hill High School v NSW Treasury [2007] NSADT 55, Acting Deputy President Handley said that the discretion should only be exercised where there are "strong grounds" which would justify the overriding of an exemption. However, in that case, the fact that (i) the information was already in the public domain and (ii) the action to which the information related (the sale of land between the Department of Education and Training and Landcom) has been abandoned seem to have led the Judicial Member to conclude that, on the present facts, the discretion should be exercised. 19 The reasoning of the Judicial Member in paragraphs [56] and [57] indicate that he employed a balancing test. The Department submitted that this is the appropriate test for the Tribunal to adopt. It further submits that the application of that test in the present instance would prevent release of the documents. 20 The Department submitted that, as is the case with all of the other exemptions, there are sound reasons of policy behind Parliament's inclusion of the exemption in clause 10. This was to ensure that the substantive common law rule of legal professional privilege was not modified or excluded by the operation of the FOI Act. Indirectly, Parliament can be taken to have intended that the rationale behind the rule in the first place continue to apply in the FOI Statutory context. 21 Mr Dalla-Pozza referred the Court of Appeal decision in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 where it is stated at paragraph [68]: "The rationale of legal professional privilege is "that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline" 22 He says that for present purposes, the clients are those agencies of Government that choose to make use of the services of the Crown Solicitor. Like any private person, Government agencies can be actors in legal proceedings and frequently are so. In cases where a government agency is a party, for the relationship of solicitor and client to function effectively and, as a consequence, for justice to be administered effectively and efficiently, it is necessary that the common law rule of privilege survive the passing of the FOI Act. Parliament did not intend that Government agencies be at a disadvantage as compared with private citizens in this way. Otherwise, it would not have enacted clause 10 of Schedule 1 to the FOI Act. 23 He says that even if considerations of "public interest" do play a role in the override discretion, the Department submits that, in the present case, the public interest lies in preserving this well-established substantive rule of law i.e. to ensure the effective administration of justice. The balance between the public's right to access government information and the proper administration of government has been struck in the present case. It was not Parliament's intent that documents which are legally professionally privileged be released, without some "strong grounds" which would show that the public should be granted access to this material and be consistent with the objects of the FOI Act. These strong grounds are lacking in the present matter. 24 For these reasons, the Department submits that it is not appropriate to exercise the override discretion in relation to those documents that the Tribunal has found to fall within the clause 10 exemption. 25 The Department submitted that the personal affairs exemption prevents information that an agency holds, and which relates to the affairs of an individual rather than to the workings of government or public affairs generally, from becoming the subject of FOI Applications. Mr Dalla-Pozza concedes that there may be instances where the release of an individual's personal details is an integral part of the workings of government such that it can be said that Parliament would have intended that this specific information should comprise part of the information that the public should be able to access. In such cases, it may be appropriate to exercise the override discretion. However, he argues that in this matter the withheld personal contact details do not fall into that category. He says that there are no "strong grounds" why this information should be released to the public. 26 The business affairs exemption can also be rationalised in terms of the balancing exercise outlined above. An increasing number of government agencies, including the Crown Solicitor's Office, are obliged to conduct their affair on a commercial basis. Because these agencies conduct activities on a commercial basis, their operations would be impeded significantly if, by reason of the FOI Act, information of commercial sensitivity became publicly available. Similar considerations apply in relation to document 77, which relates to a Barrister briefed by the Crown Solicitor. It is submitted that the focus of the FOI Act is on affairs of Government. It cannot be supposed that Parliament intended the information of commercial sensitivity to an individual would be the type of information released by under the FOI Act. 27 For it to be appropriate to release this information which would clearly have an adverse impact on the working of an agency of Government or the business affairs of a private individual, there would need to be strong reasons warranting the release of same. In the present case, there are, in the Department's submission, no such grounds. 28 The Department argues that the Tribunal should reject the Applicant's contention that if an Applicant is able to demonstrate that there is "public disquiet" in relation to an FOI matter, the Tribunal should exercise its override discretion. 29 Mr Dalla-Pozza argues that 'public disquiet' is neither the correct test to be applied nor a relevant consideration. He submits that evidence of "public disquiet" is of no assistance to the Tribunal either as a test for the exercise of the override discretion or as a consideration relevant to this purpose. 30 The Department maintains that the "public interest" is not the correct or a relevant consideration. If public interest is not relevant, it follows that "public disquiet" which is a component of "public interest" is also not relevant. The override discretion arises from the relationship between section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") and section 25 of the FOI Act. Since section 25 confers a discretion on an agency. Section 63 of the ADT Act enables the Tribunal to 'stand in the shoes of an agency' and to exercise this discretion in such a way as to result in the correct and preferable decision. This requires the Tribunal make a determination based on the particular statutory context. The correct approach is for the Tribunal to ask itself what is the 'correct and preferable' exercise of the discretion conferred on an agency by section 25 of the FOI Act. Both the agency and the Tribunal in exercising a power available to an agency in arriving at the correct and preferable decision are obliged to exercise this discretion consistently with the objects of the Act. 31 Instead, the Department's proposed balancing test leaves no room for the operation of a broad "public interest" test. This is because there is a danger that expressing the test in such broad terms will cause the Tribunal to take into account irrelevant considerations. A person who exercises even what appears to be an unlimited statutory discretion is required to have regard to the scope of the Act and the purpose of Parliament in enacting the legislation. The Department submits that considerations of the "public interest" encompass a broader range of considerations than those that Parliament has provided for in enacting the FOI Act. Therefore an adoption of this test may lead the Tribunal into the error of taking into account irrelevant considerations. 32 Mr Dalla-Pozza argues that the proposed "public disquiet" consideration is an example of why the term "public interest" is best avoided in the present context. He says that this consideration goes beyond the language of the FOI Act and also the scope and subject matter of the FOI Act. The words "public disquiet" do not appear in the FOI Act, nor is the amelioration of public disquiet itself an express of implied object of the FOI Act. He submits that whilst the Tribunal has previously held that "public interest" considerations are relevant (Retain Beacon Hill High School Inc v NSW Treasury [2007] NSW ADT 55 at [44]; P v Greater Western Area Health Service [2007] NSWADT 87 at [39], this was only ever in the context of a consideration to be taken into account in the balancing exercise the Tribunal was required to perform. Mr Dalla-Pozza further submits that even if "public disquiet" is a component of the public interest test, it should not be taken into account. He concedes that some of the material provided by the Applicant might be taken to indicate that there is some level of public disquiet regarding the FOI regime generally, none of the material relates specifically to the present application and therefore does not support his claim. Furthermore, these documents only reflect the views of their authors. They are of a limited probative value, as they appear, in the main, to reflect the views of persons already involved in proceedings before the Tribunal and do not demonstrate a broader disquiet across the public at large. Nor do they indicate that there is a broader public suspicion of any significant impropriety on the part of the Crown Solicitor. 33 The Department says that "strong grounds" must be demonstrated before the discretion is exercised and that the considerations against disclosure in the present case outweigh those in favour meaning that the "strong grounds" are presently lacking. Findings 34 The issue for determination here is whether the Tribunal should direct that the exempt matter be released. 35 The Tribunal's President dealt with a claim to legal professional privilege in his recent decision in Cianfrano v Director General, Premier's Department [2007] NSWADT 216. He specifically considered whether exempt matter should be released and observed that the Tribunal has a broad, unfettered discretion to release exempt documents, matching that of the agency. The President reviewed a number of authorities that have considered the issue and stated at paragraph [24]: 24 At this early point in the exercise of this power, the following principles to guide the exercise of the discretion have emerged: (1) The Tribunal must first ascertain whether the matter is exempt matter. (2) The Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption. (3) The question of whether there are strong grounds should take account of the objects of the FOI Act as expressed in s 5. (4) Even in the case of matter that falls within one of the 'restricted documents' categories of exemption (see cll 1 (Cabinet documents), 2 (Executive Council documents) and 4 (Documents affecting Law Enforcement and Public Safety) of Schedule 1) the only absolute exemption arises where the Minister has granted a certificate pursuant to s 59. (5) In the case of restricted documents, particular account should be taken of the concern addressed by s 5(2)(b), i.e. whether or not a restriction of access is 'reasonably necessary for the proper administration of government'. 36 The President quoted views expressed by Maxwell P in the Victorian Court of Appeal decision in Secretary to the Department of Justice v Osland [2007] VSCA 96. He said at paragraph [30]: 30 It will be seen that Maxwell P rejected the suggestion that the passage of time will necessarily be relevant to the protection of certain classes of documents. In these remarks, his Honour focused on the intrinsic value of upholding the privilege regardless of any particulars as to the content of the document or the currency of the issues or controversies with which it deals. This view reflects a concern that any 'watering down' of the secrecy traditionally accorded to communications protected by legal professional privilege would reduce the preparedness of clients to communicate frankly with their legal advisers. In turn, the administration of justice would be impaired. 37 In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 it was held that legal professional privilege is a fundamental common law right, which may only be abrogated by express and unambiguous statutory language. It seems to me that in light of the views expressed in Daniels Corporation there must be some doubt as to whether the override discretion, which arises by virtue of section 63 of the ADT Act read in conjunction with section 25(1)(a) of the FOI Act, extends to communications protected by legal professional privilege. It is not necessary that I resolve that issue in this matter because if a section 25(1) discretion exists, I would not exercise it in favour of the Applicant. For the reasons argued by the Department, I do not consider that there are strong grounds justifying the overriding of the exemption. 38 I have considered the arguments presented by the parties on the issues applicable in the exercise of the discretion. It is not necessary that I resolve the issue of whether a public interest test applies to the exercise of the discretion or whether public disquiet can be taken into account because I do not consider that the Applicant could succeed on either test. 39 In my view, none of those arguments are sufficient to override the exemptions that I have found to apply in the present case. I do not consider that the Applicant has raised considerations sufficient as to warrant the general release of the exempt documents under section 25 of the FOI Act. 40 It follows that the application for release of the exempt documents should be dismissed Order In accordance with the reasons provided in Cianfrano v Director General, Attorney General's Department [2007] NSWADT 8 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.