Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bayne v Department of Environment and Heritage [2016] NSWCATAD 52 Hearing dates: On the papers Date of orders: 15 March 2016 Decision date: 15 March 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: 1. The decision of the Respondent is affirmed. Catchwords: GIPA Act – Legal Professional Privilege - Overriding public interest against disclosure – Conclusive presumption – Personal considerations of the applicant – Positive application for other material. Legislation Cited: Evidence Act 1995 Government Information (Public Access) Act 2009 Cases Cited: Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 Category: Principal judgment Parties: Rosemary Bayne (Applicant) Office of Environment and Heritage (Respondent) Representation: On the papers File Number(s): 1510449 Reasons for decision 1. On 30 July 2015 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with an application for access to documents concerning the applicant. These documents were held by the respondent agency. 2. That access application was made on 24 March 2015 to the respondent under the Government Information (Public Access) Act 2009 (the GIPA Act) whereby the applicant was seeking copies of specific information relating to communications by the respondent agency in respect of three points arising from a media article. The access application requested: On Sunday, March 15, 2015, the Sun Herald published an article on page 25 titled 'Iconic case still for sale' written by Kristen Ochs. The article stated: 1. The Jenolan caves had failed to secure a private lessee, more than two years after the NSW government opened it up for privatisation; 2. In 2012, then-environment minister Robyn Parker announced an expression of interest process for private operators looking to manage services in the visitor use zone, which included running caves tours and operating historic Caves House; and 3. Bob Conroy, administrator of Jenolan Caves, said it would be inappropriate to comment publically on staffing matters other than to say that the trust is implementing reforms consistent with the appropriate laws. I require a copy of all communications between April 2011 and now in relation to the 3 points listed above. 1. By way of background, the applicant is one of a number of former business owners who traded from the Jenolan Caves location prior to their leases being cancelled and an administrator being appointed. There have been a number of GIPA Act applications before the Tribunal for access to government information from two specific agencies including the respondent in this matter. 2. The applicant represents a group of these business owners formerly associated with Jenolan Caves. The above background is in my view necessary in order to understand the context of the applications for information as in the current matter the applicant varied or amended her access application shortly after she sought review in the Tribunal. 3. Initially the respondent agency decided that the application was invalid in accordance with section 51 (1) (b) of the GIPA Act in so far as (in the respondent / agency's view) it was not possible to determine which specific records from their information holdings the access request covered. This decision was conveyed to the applicant and further correspondence and communication occurred between the parties. 4. An amended request was made on 12 May 2015 which stated / requested: I require a copy of all communication in 2012 in relation to the expression of interest process for private operators looking to manage services in the visitor use zone, which included running caves tours and operating historic Caves House. 1. On 10 June 2015 after completing third party consultations the respondent agency made a decision and released 75 pages of material to the applicant. On 30 July 2015 the application for external review was lodged with the Tribunal. The review set out the following matters under Grounds for Review: Information regarding matters set out in the application were not provided to the applicant – see memorandum attached. 1. It appears that the memorandum was created by the applicant as a result of analysing the 75 pages of information released on 10 June 2015. The memorandum is quite lengthy and in my view extrapolates out other data arising from or referenced in the 75 pages of material which predominantly form the scope of the applicant's GIPA Act application. By way of an illustrative example: if a communication within scope comprises an item of correspondence or an e-mail (which makes a reference to another piece of information, historical or otherwise), that (other) information was not included in the material released, but only the correspondence or e-mail as those documents constituted the 'communications' and therefore were deemed to be within scope. 2. At the initial Planning Meeting in August 2015, the parties agreed that the respondent would now conduct a search for the documents referred to in the applicant's memorandum. The matter was remitted back to the respondent and a new decision was made on 15 September 2015. The new decision released all of the material identified, other than a small suite of material upon which the respondent relied upon a conclusive presumption against disclose under schedule 1 of the GIPA Act, and an even smaller suite whereby the respondent considered that significant weight should be given to a public interest against disclosure in order to protect an individual's privacy. (s-14). 3. At a second Planning Meeting in November 2015 there remained a dispute about the processing fees for the extra material which had been searched, identified and assessed by the respondent, with a view that the parties might resolve the matter. The matter came before me on 8 March 2016 as the matter had not resolved. At that meeting the respondent handed over the withheld material to the Tribunal on a confidential basis. They advised that this material was the outstanding 'withheld' material, and the only remaining contentious issues arising strictly out of this set of proceedings before the Tribunal. 4. The applicant's representative agreed that they were content for the Tribunal to assess whether that material should (in the Tribunal's view) be released under the provisions of the GIPA Act, and as a result advised that the proceedings were otherwise resolved. It was agreed between the parties that this course could appropriately be discharged by the Tribunal determining the matter on the papers (in the absence of a hearing). 5. Therefore the task of the Tribunal is to determine whether the material withheld by the respondent can be assessed and properly characterised as material which would fall under the provisions of Clause 5 of Schedule 1 of the GIPA Act. 6. The relevant provision of the GIPA Act provide: Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure 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. 1. I have examined the material provided on a confidential basis by the respondent. The material provided to the Tribunal does (to my mind) constitute material which falls within the criteria of Clause 5 of Schedule 1. 2. Whilst it is an internal legal opinion or advice, I note that the respondent has not waived privilege. In addition I note that it refers to other documents (which are not attached to the material before the Tribunal), but it is clearly providing advice about those documents, including their import and meaning, and their purpose and impact if any on the agency. 3. In the case of Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 at paragraphs 54 and 55 I observed the following: Legal Professional Privilege (Sch 1 Cl 5) 54.The general provisions relating to the existence of legal professional privilege are as follows. The material must be:◦In the context of a client and lawyer relationship, ◦That there is a confidential nature to the communication or the document(s), ◦The communication or the documents was brought into existence for the dominant purpose of either: (a) assisting the client in obtaining, or the lawyer to give or provide legal advice or services, (b) for use in either existing of proposed / contemplated proceedings / litigation. 55.These provisions have a current statutory authority within sections 118 and 119 of the Evidence Act 1995 (NSW). 1. In my view after examining the withheld material, it is clear that the identified documents constitute material that would fall within the scope (on any objective analysis), of material referred to in paragraph 16 above (as in the case of Hutchinson). In addition the identified material does appear to be in scope of the GIPA Act request of the applicant. 2. Whilst the material is clearly within the scope of the GIPA Act request, and thereby of possible interest to the applicant, and (given the nature of the relationship between the applicant and the material sought) possibly of high relevance to the applicant, because the material falls within the scope of Schedule 1, that is not determinative of release. Personal factors of the application do not come into any assessment of this material (as per section 55 of the GIPA Act) as the material is conclusively presumed to have an overriding public interest against disclosure under the GIPA Act. 3. It would appear that significant weight has (appropriately) been applied under the provisions of section 55 (2) of the GIPA Act in addition to other provisions, to enable the release of the significant majority of material already provided by the respondent. 4. Therefore, in that regard, in respect of the remaining withheld material, the correct and preferable decision is to affirm the decision of the respondent. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 15 March 2016