CITATION: McGuirk v University of New South Wales [2008] NSWADT 69 This decision has been amended. Please see the end of the decision for a list of the amendments. DIVISION: General Division APPLICANT (Gerard) Michael McGuirk PARTIES: RESPONDENT University of New South Wales FILE NUMBER: 053438 HEARING DATES: 8 October 2007 SUBMISSIONS CLOSED: 8 October 2007 DATE OF DECISION: 5 March 2008 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Freedom of Information Act - access to documents - legal professional privilege MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 CASES CITED: University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8 APPLICANT In person REPRESENTATION: RESPONDENT P Singleton, barrister ORDERS: 1. The decision of the University of New South Wales not to give Mr McGuirk full access to the Minutes of the 384th (special) meeting of Council is set aside 2. In substitution for that decision, the decision is made to give Mr McGuirk full access to the Minutes of the 384th (special) meeting of Council. REASONS FOR DECISION 1 By letter dated 10 August 2005 Mr McGuirk applied to the University of New South Wales ("the University"), for access to documents under the Freedom of Information Act 1989 ("the FOI Act"). Mr McGuirk sought: 1. Copy of the report on the inquiries conducted by the University of New South Wales into the appointment of Ms Natalie Kidd as Executive Director of the MBT Program which the University undertook to provide to the Ombudsman in Professor Rory Hume's letter dated 8 August 2005. 2. Letter from the Ombudsman to the Vice-Chancellor of New South Wales, Professor Rory Hume, in response to this commentary, dated 9 September 2003. 3. Confidential minutes of the 382nd meeting of the University Council held at 2 pm and adjourned at 6.40 pm on Monday, 15 April 2002 and reconvened at 4 pm on Monday, 29 April 2002. 4. Confidential minutes of the 383rd meeting of the University Council held at 2 pm and adjourned at 7.15 pm on Monday, 27 May 2002 and reconvened at 4 pm on Monday, 3 June 2002. 5. Minutes of the 384th ("special") meeting of the University Council held on 10 July 2002. 6. Confidential minutes of the 385th meeting of the University Council held at 2 pm on Monday, 22 July 2002. 7. Confidential minutes of the 386th meeting of the University Council held at 2 pm on Monday, 26 August 2002. 8. Minutes of the 387th ("special") meeting of the University Council held on 19 September 2002. 2 The University's FOI Officer, Ms Deborah Osborn, determined the application on 31 August 2005. Ms Osborn determined to release the documents she identified as falling within the scope of paragraphs 1 and 2 of Mr McGuirk's application; and to release parts of the document requested in paragraph 5 of Mr McGuirk's application. Ms Osborn advised that there are no "confidential" minutes for the 382nd, 383rd, 385th and 386th Council meetings. She declined to provide copies of the minutes for the 382nd, 383rd, 385th and 386th Council meetings. However, she advised that they were available on the University's website. She determined to release parts of the Minutes of the 384th (special) meeting of Council ("the 384th Minutes"). Ms Osborn asserted that some of the withheld material records legal advice of Bret Walker SC to the University and that release of other withheld material s confidential material. The withheld material was said to be exempt pursuant to clause 10 and clause 13(b) of Schedule 1 to the FOI Act. 3 By letter dated 23 September 2005 Mr McGuirk sought an internal review of Ms Osborn's determination. He asserted that Ms Osborn's search relating to reports concerning the appointment of Ms Natalie Kidd had been inadequate, disputed her assertion that the minutes of Council meeting are available for inspection free of charge on the University's website, and sought review of the determination to withhold parts of the 384th Minutes. 4 The University received that request on 26 September 2005 and it was determined by Mr Michael Milne, Executive Officer to the University's Deputy Vice-Chancellor (Academic). Mr Milne advised that the Council minutes are published on the University website and are available to staff and students of the University but not available to external users. He provided Mr McGuirk with copies of the Council minutes that Ms Osborn had identified as being in the University domain. 5 Mr Milne also advised that he had conducted his own search but had not been able to locate any other documents potentially falling within the scope of Mr McGuirk's request. He advised that he was of the view that Ms Osborn has properly and correctly determined that part of the 384th Minutes is exempt from disclosure on the basis of legal professional privilege but determined to release all the material previously withheld as being confidential under clause 13(b). 6 Mr McGuirk applied to the Tribunal for external review of the determination. He asserted that the University has improperly asserted the claim that part of the 384th Minutes is exempt from disclosure on the basis of legal professional privilege and waiver of privilege. 7 The University has provided a copy of the 384th Minutes to the Tribunal on a confidential basis. Applicable Legislation 8 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act. The legally enforceable right to be given access to documents is subject only to such restrictions as are reasonably necessary for the proper administration of the Government. The discretions conferred by the FOI Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information. 9 Under section 25(1)(a) of the FOI Act, an agency has discretion to refuse access to a document if it is an exempt document. Pursuant to section 61 of the FOI Act the Agency has the burden of establishing that its determination was justified. 10 Clause 10 of Schedule 1 of the FOI Act provides as follows: 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. The University's case 11 Mr Singleton submits that there are three issues to be determined by the Tribunal. Firstly, whether the 384th Minutes was protected by legal professional privilege; secondly, if the 384th Minutes was protected by legal professional privilege whether the University had waived the privilege; and thirdly, if the 384th Minutes was an "exempt document" pursuant to Clause 10 of Schedule 1 of the FOI Act whether it should nevertheless be released. 12 The University has provided a copy of the 384th Minutes to the Tribunal and contends that it is apparent from the face of the document that it records legal advice given by a legal advisor to his client and that it was intended that it be confidential advice. 13 Mr Singleton submits that the evidence presented by Mr McGuirk cannot constitute waiver. He submits that waiver is brought about by conduct of the party entitled to the privilege that is inconsistent with the maintenance of the confidentiality. Mr Singleton concedes that the University made an offer to Mr McGuirk in relation to other proceedings and in doing so offered to waive privilege but had not done so in this case. He says that there is no other conduct to which Mr McGuirk can point which could constitute waiver or from which it could be implied that privilege has been waived. He argues that conduct by a former Vice Chancellor could not amount to waiver by the University, because a former employee would have no authority to waive privilege. 14 Mr Singleton submits that the 384th Minutes was an "exempt document" pursuant to Clause 10 of Schedule 1 of the FOI Act. He further submits that it is uncertain whether or not the Tribunal has power to release a document that is subject to legal professional privilege. However, he argues that if the Tribunal does have that power it should rarely be exercised because legal professional privilege is a fundamental common law right. Mr Singleton submits that something extraordinary would be needed before the Tribunal would override legal professional privilege. Mr McGuirk's case 15 Mr McGuirk relies on a letter from the University's solicitors in relation to proceedings in the Supreme Court in which a "without prejudice" offer was made to give Mr McGuirk a copy of legal advice if certain conditions were met. Mr McGuirk concedes that he did not accept that offer but contends that because of the offer the University is estopped from asserting any claim for privilege with respect to the 384th Minutes. 16 Mr McGuirk also relies on a newspaper article in which it is recorded that a former Vice Chancellor of the University referred to and commented on occurrences at a Council meeting. He submits that the Council meeting to which the former Vice Chancellor referred was the 384th meeting of Council, that the 384th Minutes record legal advice of Bret Walker SC to the University. He argues that in the newspaper article the former Vice Chancellor referred to the legal advice given to the University at that meeting, that the University failed to take any action in response to the newspaper article and that its inaction has the same force as an act. He submits that waiver can be implied from the material before the Tribunal. 17 Mr McGuirk submits that in the circumstances the correct and preferable decision is that the 384th Minutes should be released. Findings 18 As noted above, this matter concerns part of the 384th Minutes that has been withheld on the basis that the withheld material it records legal advice of Bret Walker SC to the University and is protected by legal professional privilege. I am satisfied that with the exception of the 384th Minutes, the University does not hold documents that fall within the scope of Mr McGuirk's request that have not been released. The issue then is whether the 384th Minutes should be released without deletions. 19 For completeness, I note that I agree that the 384th Minutes was protected by legal professional privilege and was consequently an "exempt document" pursuant to Clause 10 of Schedule 1 of the FOI Act. I do not agree with Mr McGuirk's argument that the privilege had been waived. 20 The law in relation to the issues of legal professional privilege and waiver were considered in the recent Appeal Panel decision in University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8. It is unnecessary that I restate it here. 21 The Appeal Panel decision in University of New South Wales v McGuirk specifically related to legal advice a summary of which was the subject of the 384th Minutes. The Appeal Panel determined that Mr McGuirk is to be given access to the advice. 22 The Appeal Panel referred to a number of circumstances that it considered relevant to its decision. In particular it referred to the following facts: that the advice is now over five years old and does not relate to a current issue or dispute; that Mr McGuirk has obtained extracts from the advice from an unknown source; and that the University was prepared to waive its privilege in the advice as part of a settlement offer and will suffer no particular detriment if the advice is disclosed. The Appeal Panel also formed the view that it is not necessary for the proper administration of justice to keep the advice confidential. Those circumstances are equally applicable to this matter. 23 In light of the Appeal Panel decision I have the additional relevant circumstance that the Appeal Panel determined that Mr McGuirk is to be given access to the advice. Accordingly, given that the 384th Minutes comprises a summary of an advice that, when released, will be in the public domain, there is no utility in the University continuing to withhold the 384th Minutes. It follows, in my view, that the correct and preferable decision is that the document should be released. Order 1. The decision of the University of New South Wales not to give full access to the Minutes of the 384th (special) meeting of Council under the Freedom of Information Act 1989 is set aside 2. In substitution for that decision, the decision is made to give Mr McGuirk full access to the Minutes of the 384th (special) meeting of Council. 27/05/2008 - incorrect respondent named - Paragraph(s) Parties names 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.