Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Chamley v Sydney Children's Hospital Network [2013] NSWADT 197 Hearing dates: On the papers Decision date: 03 September 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed. Legislation Cited: Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009 Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 AWB v Cole [2006] FCA 1234 Colefax v Department of Education and Communities [2013] NSWADT 75 Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 FCT v Pratt Holdings at 279-280Hurst v Wagga Wagga City Council [2011] NSWADT 307 Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 McKinnon v Secretary, Department of Treasury [2006] HCA 45 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 Seven Network Limited v News Limited [2005] FCA 142 Tziolas v NSW Department of Education and Communities [2012] NSWADT 69 Waterford v Commonwealth [1987] HCA 25 XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2 Category: Principal judgment Parties: Cheryl Lea Chamley (Applicant) Sydney Children's Hospital Network (Respondent) Representation: C Chamley (Applicant in person) Crown Solicitors Office (Respondent) File Number(s): 123255 reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for review of a determination by the Respondent, the Sydney Children's Hospital Network, in regard to an application by the Applicant, Ms Chamley, seeking access to information held by the Respondent. In her access application under the Government Information (Public Access) Act 2009 ("the GIPA Act") the Applicant sought a copy of an 'interim advice' referenced in earlier correspondence from the Respondent and other material held by the Respondent relating to a disciplinary investigation and copies of incident details. Her access application was in the following terms: Background As a result of the findings and recommendations of a Disciplinary Investigation report dated 29 November 2010, and my subsequent reply received by the Children's Hospital at Westmead (hereinafter "the CHW") on 8 November 2011, I received a letter from the CHW Network Director of Nursing (Mrs A Solman) dated 16 January 2012. The letter stated, in reference to my reply, "This matter has been reviewed by an independent external consultant who has provided interim advice to myself and Ms (Sharon) Bau". On 25 January 2012 I met with Mrs Solman and M/s S Bau. The interim advice was not tendered at the meeting. Documents sought under GIPA Pursuant to the above meeting, I require the following (hereinafter listed as "material"): Personnel/HR records including documents, transcripts of documents, diary notes, copies of emails and electronic communication, faxes, file documents (including file notes, letters and any folioed or unfolioed material), contemporaneous notes by CHW management, notes of meetings held to discuss this Disciplinary Investigation; as follows Copy of the Interim advice, as mentioned in the letter of 16 January 2012 All of the above material pertaining to the Disciplinary Investigation of Cheryl Chamley from the 8 November 2011 to 29 March 2012. This material should include any material pursuant to the reply completed by Cheryl Chamley as received by the CHW Workplace Performance Unit, the Interim Reply and any action undertaken by CHW personal as a result of the Interim Reply. Copy of electronic access log for AIMS Incident Detail (874235-20) and (875065-20) from 10 June 2010 to 29 March 2012. Log should show name of person accessing, date of access and time of access. Please note: I have received a copy of the above AIMS under OIC ref: 11-068. 2The Respondent identified information falling within the scope of the first ("Part A") and second ("Part B") parts of the application but decided under section 58(1)(b) of the GIPA Act that it does not hold the information sought in the third ("Part C") part of the application. 3The Respondent's Senior Executive Support Officer & A/Right to Information Officer made the following determination: Part A: I have applied the public interest test and have determined that there is an overriding public interest against disclosure of the information sought for Part A of the application. Under s. 14, Schedule 1, part 5(2) of the GIPA Act, the Network refuses to provide access to government information on the presumption of legal professional privilege. Part B: I have applied the public interest test and have determined that there is no overriding public interest against disclosure of the information sought for Part B of the application. The information includes advice to the Network received from a third party in relation to Part B of your application. Under s. 59(1)(b) of the GIPA Act, the information sought in Part B is available to the applicant from, or for inspection at, the Network in accordance with NSW Health Policy Directive Disciplinary Process in NSW Health - A Framework for Managing ... Part C: Under s. 58(1)(b) of the GIPA Act the information sought in Part C is not held by the Sydney Children's Hospitals Network. The Network has advised that the two IIMS logs requested in the application were not patient related and were deleted from the system in June 2010 at the decision of the HMS Manager, Children's Hospital at Westmead under NSW Health Policy Directive PD2007_061 Incident Management. 4The Applicant was not satisfied with the outcome and sought an internal review of the determination. She contends that the refusal to grant access to the Part A information - a copy of 'the interim advice' - is neither warranted nor justified. 5In relation to the Part C information, the Applicant sought an explanation with respect to how documents came to be deleted. She wrote: Finally, I also refer you to 3.2 Part C of your Notice. I am still seeking an explanation as to how documents used against me as evidence can be now deleted, when I have not received formal advice that the investigation is concluded, and the investigation has been roundly discredited. ... I have been advised to expect a reply from the relevant officer at the CHW as to the reasons for the deletion. This also forms part of this Internal Review, as I have received no explanation to this date. I also do not wish to receive policy documentary explanations, I wish an explanation in light of the actions taken against me prior to November 2011 when those reports (and ancillary statements) were to form the basis of the removal of my means of employment as a result of recommendations by the CHW WPU based on their investigation ... 6Ms Roseanne North, Senior HR Consultant to the Respondent undertook the internal review. Ms North's determination relevantly stated: 1. Summary of internal review and access application On 1 June 2012, the Sydney Children's Hospital Network received your application for an Internal Review under the Government Information (Public Access) Act 2009 (GIPA Act), in which you sought an Internal Review of Part A of your original application: "I am writing to seek a review of the decision made in the above GIPA reply to me (dated 7 May 2012). In my GIPA application I requested a copy of the Interim reply which you designated as Part A in 3.2 of the Notice of Decision to grant access (herein after The Notice, you stated that the public interest test was applied and the Network refuses to provide access on the presumption of legal professional privilege." ... 4. Notice of Decision In making my decision, I have reviewed the original decision dated 7 May 2012 and the documents captured by the scope of your application. I am authorised by the principal officer, for the purposes of s. 9(3) of the GIPA Act, to decide your internal review application. I have examined all of the records containing the information falling within the scope of your application for internal review and as described above in Part 1. I have decided, under s. 58(1)(d) of the GIPA Act, to refuse to provide you with access to the information sought as there is an overriding public interest against its disclosure. ... 4.1 Reasons of Decision Under s. 9(1) of the GIPA Act, you have a legally enforceable right to be provided with access to the information sought, unless there is an overriding public interest against disclosure of the information. I have applied the public interest test and have determined that there is an overriding public interest against disclosure of the information sought. Through the application of the public interest test it was also identified that under s.14(1) there is an overriding public interest against disclosure of information listed in schedule I of the GIPA Act. I have reviewed the information sought by you and have identified that under Part A of your original access application is of a nature that has legal professional privilege. It is also evident that this information was produced in the belief that legal professional privilege applied to this information. Therefore, under Schedule 1 s.5 (1) I have deemed that there is an overriding public interest against disclosure of the information you sought. 7The Applicant has applied to the Tribunal for external review of Ms North's determination. Included in her application she provided the following as grounds for application: This application concerns a final legal report which the CHW has deemed to be covered by legal professional privilege, even though the content of the report is an analysis of a reply to their investigation by me, which resulted in the investigation by the CHW being cancelled by the Director of the hospital. I consider they have no right to claim a privilege on this document when the creation of it, and its content, was as a result of information I sought, and questions I asked regarding their flawed processes, and bullying undertaken by management and staff against me. I am of the firm belief that the report confirms short comings in the investigation process against me, some of which breach the evidence act, as well as policies and procedures of the NSW Department of Health. Gaining this document will finalise the whole investigative process I have undertaken into this matter since November 2011, and will finally clarify questions the CHW has been negligent in answering to this point. 8The Respondent asserts that the document in issue, "the interim advice", contains legal advice from a practising solicitor retained by the Respondent regarding issues identified by the Applicant. It further asserts that the advice discusses the appropriate procedural steps in the legal context and surrounding factual matrix and, as such, there is a conclusive presumption of an overriding public interest against disclosure. 9With the parties' agreement I determined that this was a matter that could be determined on the papers, without a hearing. Material before the Tribunal 10In making this determination I have considered the following material: * the internal review decision. * the Applicant's submissions. * the Respondent's submissions and submissions in reply. * the interim advice. * a Statement by Ms Claire Pirola of Integroe Partners - the author of the interim advice * a Statement by Shalini Singh HR Manager, Clinical Programs for the Children's Hospital at Westmead. Applicable legislation 11The applicable legislation was recently summarised by Judicial Member Molony in the matter of Battin v University of New England [2013] NSWADT 73. I adopt his summary in this matter. 12The objects of the GIPA Act are set out in section 3(1) - In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. 13'Government information' is given a wide meaning (section 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in section 4. It includes "(c) a public authority." Public authority is in turn defined in Clause 2 of Schedule 4 to mean, among other things, "a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument". The Respondent is an agency to which the GIPA Act applies. 14The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (section 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (section 9). The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the 'overriding secrecy laws' that are set out in Schedule 1 (section 11). Schedule 1 sets out information concerning which it is conclusively presumed that there is an overriding public interest against disclosure (section 14(1)). 15With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (section 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides - Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct 16There will only be an overriding public interest against disclosure when the public interest test in section 13 is satisfied. It provides - There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 17In considering whether there is an overriding public interest against disclosure section 16 provides that the following principles apply - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 18The public interest considerations against disclosure are limited to those set out in the Table to section 14. Section 14(2) provides that - The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. 19As Judicial Member Isenberg observed in Tziolas v NSW Department of Education and Communities [2012] NSWADT 69, it is relevant to consider under the GIPA Act that, unlike subpoena production and discovery, disclosure is uncontrolled: 38 Another relevant consideration is that, while the use of Parliamentary information provided to a court pursuant to court procedures such as discovery and subpoena may be controlled, whereas disclosure of information pursuant to the GlPA Act is necessarily unconditional and therefore cannot be controlled. 39 The consequence is that Folios 3-6 are protected by Parliamentary privilege and it is conclusively presumed that there is an [overriding public interest against disclosure] of that information. 20Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review. A decision made on internal review is a reviewable decision. A person aggrieved may seek a review by the Tribunal (section 100). When this provision is read with section 38 of the Administrative Decisions Tribunal Act 1997, they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. Such applications are to be made within 8 weeks of the decision (section 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (section 101(2)). The Tribunal has power to extend the time for the making of a review application under section 101(3) when it is of the opinion that the person making the application "has provided a reasonable excuse for the delay in making the application." In the present matter the Applicant has set out a detailed explanation for her late application. In the circumstances the date for the making of the application is extended to the date of filing. 21In any review of a reviewable decision section 105 places the burden of justifying the decision on the agency concerned. 22The Tribunal's function on review under section 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 23Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides - (1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. ... 24Clause 5 of Schedule 1 to the GIPA Act provides - 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5. 25In the present case the privilege is claimed with respect to the interim advice. The Respondent's privilege claim is based on an asserted legal advice privilege. 26The question arises as to whether the common law or the Evidence Act 1995 provisions apply. Judicial Member Molony considered this issue in the matter of Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 and more recently in Colefax v Department of Education and Communities [2013] NSWADT 75. In Colefax v Department of Education and Communities he stated: 24 In Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 the Appeal Panel held that legal professional privilege for purpose of the Freedom of Information Act 1987 was legal professional privilege at common law, rather than client legal privilege under Division 1 of Part 3.10 of the Evidence Act 1995. In Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 I found that given the subsequent enactment of s 131A of the Evidence Act that , at [70] - ... the test for whether a document would be "privileged from production in legal proceedings on the ground of legal professional privilege" in proceedings in NSW courts, is now determined by the client legal privilege provisions in Division 1 of Part 3.10 of the Evidence Act 1995 and not by the common law of legal professional privilege. That conclusion is not one with which all other members of the Tribunal have agreed: see for example McGuirk v University of New South Wales [2011] NSWADT 169. 25 Since the commencement of the GIPA Act there have been a number of decisions dealing with the issue of client legal privilege, in which the issue of whether the common law or Evidence Act provisions apply has not been addressed. This is so because the conclusion would have been the same no matter which law was applied. 26 For myself, I consider that the question of whether or not information is privileged from production in legal proceedings on the ground of client legal privilege is to be determined by reference to the client legal privilege provisions in Division 1 of Part 3.10 of the Evidence Act 1995. This is so for the reasons I gave in Fitzpatrick and because the legislature in the GIPA Act has specifically referred to the term "client legal privilege," which is that used in the Evidence Act. In contrast, the Freedom of Information Act 1987 used the term legal professional privilege. The use of the Evidence Act terminology in my view evidences an intention that those provisions apply. 27I agree with that view. However, in the circumstances of this matter my conclusion would have been the same no matter which law is applied. 28Section 118 of the Evidence Act 1995 provides: 'Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.' 29A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44]. 30Section 117 of the Evidence Act 1995 contains definitions of confidential communication, confidential document, client and lawyer. Relevantly it provides: (1) In this Division: client includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, (d) ... confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. lawyer means: (a) an Australian lawyer, and (b) an Australian-registered foreign lawyer, and (c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and (d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c). ... 31It is incumbent on the person asserting the privilege to demonstrate that the dominant purpose for the communication in issue was the provision of legal advice. In the case of GIPA Act reviews, that is consistent with the burden placed on the Agency by s 105(1). 32In some cases it will be obvious from an examination of the written communication itself that the dominant purpose of the communication was the provision of legal advice. That is the case with the document in issue in this matter. In any event, the evidence on which the Respondent relies places it beyond doubt. 33The Applicant provided detailed submissions. However, as the Respondent has noted, those submissions are primarily directed to discretionary reasons. That is, why she says the Respondent should not be permitted to rely on the fact that the information comprised in the "interim advice" would be privileged from production in legal proceedings on the ground of legal professional privilege. Where clause 5(1) of Schedule 1 to the GIPA Act is satisfied, there is a conclusive presumption of an overriding public interest against disclosure. The Tribunal has no discretion as to whether or not there is an overriding public interest against disclosure. 34The evidence establishes that, at the time of authoring the "interim advice" Ms Pirola was a solicitor with an unrestricted practising certificate in NSW. Ms Pirola had carriage of the matter for Integroe Partners, a legal practise. 35The Respondent is a statutory health corporation established under Schedule 2 of the Health Services Act 1997. In the circumstances it is a "client" for the purposes of section 117 as a 'body who engages a lawyer to provide legal services or who employs a lawyer'. The Respondent was Ms Pirola's "client". 36An Agreement dated 30 November 2011 and a cost disclosure letter dated 9 December 2012 governs the engagement Ms Pirola, for Integroe Partners to provide "legal advice" to the Respondent. 37Ms Pirola provided the "interim advice" to the Respondent's Director of Workforce Development on 12 December 2011. In her statement in these proceedings, Ms Pirola said that the Interim Advice: "was not intended for distribution, but rather to provide advice to the SCHN during my review and to form the basis of further discussion between me and the SCHN about the appropriate procedural course." 38There is no doubt that a solicitor engaged by the Respondent created the document. It is readily apparent from a consideration of the document that it comprises legal advice provided in response to a request by the Respondent. In my view, it is information to which legal professional privilege applies. 39Further, it is my view that the characterisation of the document as 'legal advice' is not affected by the fact that it was an interim advice. The overriding context of the interim advice was the provision of legal advice. The "interim advice" contains information the dominant purpose of which is the provision of confidential legal advice from a practising solicitor to her client. 40I agree with the Respondent's submission that any aspect of the "interim advice" which details non-privileged material, or constitutes a draft of material which will eventually be published, is coloured by the context of the "interim advice" as a confidential discussion of legal issues and appropriate procedural steps. Such draft material is analogous to a draft contractual clause, will or a review of a proposed publication for liability. 41Having examined the document and considered the Respondent's evidence, I am satisfied that it was created for the 'dominant purpose' of giving or obtaining legal advice. I am also satisfied that the advice was given as independent advice. That is made plain from the contents of the documents. 42There has been no suggestion of an express waiver concerning the "interim advice". The mere reference to the existence of the "interim advice" is not sufficient to waive privilege in the advice. The "Final Report" does not disclose the "substance" or "gist" of the legal conclusions of the interim advice. 43The privilege claim for exemption in respect of the document is therefore justified. That being the case it is to be conclusively presumed that there is an overriding public interest against disclosure of that information. The Tribunal has no discretion as to whether or not there is an overriding public interest against disclosure. The Applicant has no statutory entitlement to be provided with government information where there is an overriding public interest against disclosure. 44In the circumstances, the correct and preferable decision is affirm the decision under review and to refuse access to the document. Order 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. Decision last updated: 03 September 2013