McGuirk v Director General, Attorney General's Department [2008] NSWADTAP 9

Appeal Panel - Internal

CITATION: McGuirk v Director General, Attorney General's Department [2008] NSWADTAP 9

APPELLANT Michael McGuirk PARTIES: RESPONDENT Director General, Attorney General's Department

FILE NUMBER: 069063

HEARING DATES: 15 May 2007

SUBMISSIONS CLOSED: 20 September 2007

DATE OF DECISION: 5 March 2008

BEFORE: Hennessy N - Magistrate (Deputy President); Molony P - Judicial Member; Blake C - Non Judicial Member

CATCHWORDS: leave to extend to the merits

MATTER FOR DECISION: Principal matter

DECISION UNDER APPEAL: McGuirk v Director General, Attorney General's Department [2006] NSWADT 265

FILE NUMBER UNDER APPEAL: 053361,053237

DATE OF DECISION UNDER APPEAL: 09/12/2007

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997

Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 CASES CITED: McGuirk v Director General, Attorney General's Department [2007] NSWADTAP 38 University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8

APPELLANT In person REPRESENTATION: RESPONDENT J Mc Donnell, solicitor

ORDERS: The decision of the Attorney General's Department not to give access to the disputed documents is affirmed.

REASONS FOR DECISION Introduction 1 This decision follows on from the decision in McGuirk v Director General, Attorney General's Department [2007] NSWADTAP 38 relating to an application for documents under the Freedom of Information Act 1989 (FOI Act). In that decision, the Appeal Panel decided to grant leave for the appeal to be extended to the merits of the Tribunal's decision below in relation to the exercise of the discretion to give access to exempt documents. That discretion is sometimes referred to as the "override discretion". The Appeal Panel decided that this issue could be adequately determined on the basis of any further written submissions, in the absence of the parties: ADT Act, section 76. 2 The Panel directed Mr McGuirk to file and serve submissions in relation to this question within 28 days of the date of the Appeal Panel's decision, that is, by 23 August 2007. The Attorney General's Department was directed to file and serve any submissions in response within a further 28 days. No submissions were filed by Mr McGuirk and consequently, none was received in response from the Attorney General's Department. 3 We must decide the question of whether or not to give access to the disputed documents even though they are exempt under the FOI Act, without the assistance of further submissions on that point from the parties. In making our decision we have referred to the relevant evidence and submissions before the Tribunal and to the relevant submissions before the Appeal Panel. The background to Mr McGuirk's application is set out in the Appeal Panel's previous decision at [1] to [3]: In two separate applications, Mr McGuirk requested that the Attorney General's Department provide him with certain documents under the Freedom of Information Act 1989 ( FOI Act ). While some of the documents he requested were provided, 39 were withheld on the ground that they were exempt because they were protected by legal professional privilege. The Tribunal affirmed those decisions. Mr McGuirk has appealed to the Appeal Panel. The appeal was on a question of law . . . The background to the two requests for documents is that Mr McGuirk had initiated prosecutions for alleged breaches of the Protected Disclosures Act 1994 against five people who were, or had been, employed by the University of New South Wales. The matter was first listed before the Local Court in Newtown on 22 December 2003. Each of the defendants requested the University's solicitor to provide him with legal assistance. Those requests were referred to Mr Andrew Mullen, Assistant University Solicitor. On 16 December 2003, one of the Assistant Crown Solicitors with the Crown Solicitor's Office received a facsimile from Mr Mullen requesting that the Crown Solicitor act for the defendants in relation to the criminal proceedings. James Shevlin and subsequently Catherine Follent, had carriage of the matter. Counsel was briefed to represent the defendants. The trial commenced in February 2005. On the third day, Mr McGuirk agreed that he would not lead any further evidence if no costs orders were made and the matters were dismissed. The two categories of documents Mr McGuirk requested under the FOI Act were as follows: Matter No 053237 "1.Copies of correspondence with the Crown Solicitor's Office (CSO) in regard to the cost of providing material subpoenaed by the CSO in regard to the McGuirk v Niland & Ors matter. 2. Copies of all correspondence between the Crown Solicitor's Office and the University of New South Wales in regard to the legal costs, and the payment of these legal cost, associated with the defence of Professors John Niland, John Ingleson, Roger Layton, Greg Whittred and Mr Neil Morris in the McGuirk v Niland & Ors matter concluded in the Downing Street Local Court on Friday 11 February 2005. 3. Copies of any applications for ex gratia assistance for legal representation made by Professors John Niland, John Ingleson, Roger Layton, Greg Whittred and Mr Neil Morris in relation to the above matter, in accordance with the "Guidelines for the Provision of Ex Gratia Assistance for Legal Representation for Ministers of the Crown, Public Officials and Crown Employees." Matter No 053361 l. Copies of all correspondence between the Crown Solicitor and the University of New South Wales in regard to the representation by the Crown Solicitor of Professor John Niland, Professor John Ingleson, Professor Greg Whittred, Professor Roger Layton and Mr Neil Morris ("Niland et al.") in the McGuirk v Niland & Ors matter which was heard in the Downing Street Local Court on 9, 10 and 11 February 2005. 2. Copies of all correspondence between the Crown Solicitor and Professor John Ingleson, Professor Greg Whittred and/or Mr Neil Morris in regard to their representation by the Crown Solicitor in accordance with Section 48(1)(g) of the Legal Profession Act 1987 in the McGuirk v Niland & Ors matter. 3. Copies of all correspondence between the Crown Solicitor and Professor John Niland and/or Professor Roger Layton in regard to their representation by the Crown Solicitor in accordance with Section 48(1)(g) of the Legal Profession Act 1987 in the McGuirk v Niland & Ors matter. 4. Copy of the application (or applications) made by the Crown Solicitor to the Attorney General seeking the approval of the Attorney General for the Crown Solicitor to represent Professors John Niland and Roger Layton in accordance with Section 48(1)(g) of the Legal Profession Act 1987 in the McGuirk v Niland & Ors matter, and the response (or responses) from the Attorney General. 5. Copies of any documents showing a line of delegation from the Attorney General to the Solicitor General which would enable the Solicitor General to approve on behalf of the Attorney General the representation of Professors John Niland and Roger Layton by the Crown Solicitor in the McGuirk v Niland & Ors matter. 6. Copies of any internal memoranda, emails, file notes, minutes of meetings and other similar documentation held by the Crown Solicitor in regard to the representation of Niland et al. by the Crown Solicitor in the McGuirk v Niland & Ors matter." 4 In relation to the 39 documents in dispute (the "disputed documents"), the Department relied on the exemption in Clause 10 of Schedule 1 to the FOI Act : 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. 5 The Tribunal decided that the documents were exempt on the ground of legal professional privilege. The Appeal Panel dismissed Mr McGuirk's appeal on questions of law. The only remaining issue is whether, despite the fact that the documents are exempt, they should nevertheless be released. Legislative framework 6 Under section 16(1) of the FOI Act "[a] person has a legally enforceable right to be given access to an agency's documents in accordance with this Act." Following an application for access to documents, an agency must determine whether access to the document is to be given or refused, and any charge payable for dealing with the application: FOI Act, section 24. An agency may refuse access to a document if it is an exempt document: FOI Act, section 25(1)(a). An exempt document includes a document referred to in any one or more of the provisions of Schedule 1: FOI Act, section 6. Clause 10 of Schedule 1 relates to documents subject to legal professional privilege: 7 It is the common law principles of legal professional privilege, rather than the statutory provisions relating to client legal privilege in the Evidence Act 1995, that are applicable in this case: Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26, at [9] to [12]. 8 Section 63 of the ADT Act sets out the Tribunal's powers when reviewing a decision of an agency under the FOI Act: (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. Issues 9 The issues that arise for determination are: a) the nature and extent of the Tribunal's powers to give access to exempt documents in general; b) the nature and extent of the Tribunal's powers to give access to documents subject to legal professional privilege; and c) whether the Appeal Panel should exercise its power to give Mr McGuirk access to the disputed documents. 10 The first two issues were addressed by the Appeal Panel in University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8 at [9] to [25]. We adopt that reasoning in this case. At [25], the Appeal Panel concluded that: By exempting documents subject to legal professional privilege, parliament has decided that, in general, the interests in maintaining legal professional privilege should prevail over the competing interest of open and accountable government. Although the public interest in maintaining legal professional privilege is very strong, documents the subject of legal professional privilege may be disclosed where the particular circumstances of the case justify disclosure. The reason for disclosing exempt documents needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of Government. Should the Appeal Panel set aside the agency's decision not to give access to the disputed documents? 11 In his letter to the Tribunal dated 1 January 2007, Mr McGuirk set out the reasons why he disagrees with the Appeal Panel's first decision in McGuirk v Director General, Attorney General's Department [2007] NSWADTAP 38. He said that he did not propose to file and serve any further submissions in relation to the exercise of the discretion, pursuant to a direction made by the Appeal Panel. His reasons for not doing so are contained in that correspondence. Despite the absence of any further submissions, we must determine whether the circumstances of this particular case justify disclosing the disputed documents. 12 One of Mr McGuirk's submission before the Tribunal was that legal professional privilege does not attach to the disputed documents because they were created with the intent of furthering an illegal purpose. That purpose was said to be the suppression of criminal breaches of the Protective Disclosures Act 1994 by the defendants in the McGuirk v Niland & Ors matter. He said that public money has been used improperly to fund legal advice and services by the Crown Solicitor's Office. As we understand it, these assertions must be at the heart of any argument that we should exercise the override discretion. The Tribunal was not satisfied that the documents had been created with such an intent. The Appeal Panel concluded at [34] that the Tribunal had regard to the evidence that Mr McGuirk presented and found that it was either irrelevant or insufficient to make out a prima facie case of improper purpose. The Appeal Panel found that those findings were open for the Tribunal to make. 13 In the light of those findings, we can see no reason, particular to the circumstances of this case, for disclosing the documents. Order The decision of the Attorney General's Department not to give access to the disputed documents is affirmed.