Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ampcontrol Limited v Department of Planning, Industry and Environment [2020] NSWCATAD 98 Hearing dates: 12 February 2020 Date of orders: 08 April 2020 Decision date: 08 April 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: (1) The name of the respondent in the proceedings is amended to Department of Planning, Industry and Environment. (2) The decision of the respondent is varied by granting access to the information listed in the Schedule to these reasons to the applicant. (3) The respondent's decision is otherwise affirmed. Catchwords: ADMINISTRATIVE LAW – government information – whether information held by respondent – adequacy of search – legal professional privilege Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 Southland Coal Pty Ltd (receivers and managers appointed) (in liq) (2006) NSWSC 899 Transport for NSW v Robinson [2018] NSWCATAP 123 Waterford v The Commonwealth of Australia (1987) 163 CLR 54 Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCAT 186 Category: Principal judgment Parties: Ampcontrol Limited (Applicant) Department of Planning, Industry and Environment (Respondent) Representation: Solicitors: Keystone Lawyers (Applicant) Crown Solicitor (Respondent) File Number(s): 2019/00238925 Publication restriction: (1) The publication or disclosure of the confidential portion of the hearing in these proceedings is prohibited under s 64(1)(b) of the Civil and Administrative Tribunal Act 2013. (2) The disclosure to Ampcontrol Limited of the content of documents in the Confidential Bundle is prohibited under s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 except as permitted in these reasons. (3) The paragraphs in these reasons marked "Not for publication" are not to be published or disclosed pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013. REASONS FOR DECISION Background 1. This is an application for review of a decision under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The respondent submits that the decision under review should be affirmed. 2. Pursuant to the decision under review, the respondent provided the applicant with access to 277 documents in full and 6 documents in part on 7 June 2019. It refused access to 52 documents. On internal review, access to a further 29 documents in full and 6 documents in part was granted. 3. Since the proceedings were commenced, the respondent released a further five documents to the applicant in full. Order 2 in these proceedings deals with the release of that information. 4. The applicant claims: 1. That the respondent did not conduct adequate searches in response to the application; 2. That the information which is withheld on the ground of legal professional privilege is not subject to that exemption. The issues 1. The applicant applied for the following information: "Copies of documents, notes, memoranda, reports, models, records, expert evidence, and email communications prepared for the dual or sole purpose of introducing the Order. This includes but is not limited to: any evidence of consultation with industry or stakeholder engagement on the impacts of the Order; any opinions by a government Minister or Governor attained for the introduction of the Order, copies of any statements of objectives sought to be achieved by introduction of the reform and identification of any alternate options considered; copies of expert evidence tendered to support the introduction of reform; and copies of communications relating to the ongoing review of the Orders suitability and legality for introduction." 1. The "Order" referred to is the Registration of Design of Plant used to Determine or Monitor the Presence of Gas Order 2019, which was reviewed by the Department following changes to Australian Standards. 2. The applicant's contention that the search was not adequate, is mainly based on what it perceives as anomalies in the respondent's evidence regarding the nature of the searches and the information which was released. 3. The applicant also does not agree that draft versions of the Order with comments by the respondent's legal adviser are necessarily subject to legal professional privilege and therefore subject to an overriding public interest consideration against disclosure. 4. The Tribunal's role is to determine the correct and preferable decision based on the material before it, including any relevant factual material, and any applicable written or unwritten law (s 63 Administrative Decisions Review Act 1997 (NSW)). 5. Part of the hearing of these proceedings was conducted on a confidential basis in the absence of the applicant, its legal representatives and the public, pursuant to s 107 of the GIPA Act. Section 107(1) provides that the Tribunal 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. Paragraphs which contained such information in these reasons are marked "Not for publication" and are redacted. Relevant legislation 1. The GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). 2. Section 12 provides that there is a general public interest in favour of the disclosure of government information. There is no limit on 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. 3. Section 13 provides: 13 Public interest test 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. 1. Section 14(1) provides: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. 1. Schedule 1 contains the following: 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. Section 53 provides: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources. 1. Section 80 provides: 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part— … (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, … Whether there are reasonable grounds to believe that the requested information exists and is held by the agency 1. The applicant's challenge to the decision that no more information within the scope of the application is held by the agency will be determined by: 1. whether there are reasonable grounds to believe that the requested information exists and is held by the agency and, if so, 2. whether the search efforts made by the agency to locate such information have been reasonable in all the circumstances of a particular case. (Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, at [19], as applied by this Tribunal in relation to the now repealed Freedom of Information Act 1989 in Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18] and to the current GIPA Act in Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5). 1. As held by the Tribunal in Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 at [19]: "All that the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches, or the reference of the case to the Ombudsman under arrangements under s 39 of the Administrative Decisions Tribunal Act 1997 (NSW)." 1. The applicant bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information falling within the scope of the application exists which has not been supplied. The respondent bears the onus of satisfying the Tribunal that the searches conducted were reasonable in the circumstances (Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCAT 186 at [33]-[34]). The applicant's case 1. The applicant submits that the evidence of the respondent shows failures to conduct an adequate search, in particular to use adequate and consistent search terms. The applicant says that each staff member searched using their own methodology and terms which made the searches unreliable. The applicant points to evidence of Mr Linnane, Director of Regulatory Programs. Mr Linnane says he oversaw the searches conducted in response to the application. His affidavit describes the various systems on which information is stored within the Department and the searches conducted by the various staff members. 2. Instances in this affidavit relied on by the applicant include: 1. There are differences between the search terms used according to the evidence and those which the decision says were used; 2. In searching their emails, two staff used plural terms such as "design orders', "gas detectors" and others used the singular versions of those terms. The applicant says singular terms should have been used; 3. Some staff used terms in searching their emails which other staff did not use; 4. Some email searches were inadequate, for example one staff member only searched for the word "order" and another staff member searched only for "Ampcontrol"; 5. Only one staff member searched in their personal drive on their computer; 6. One staff member who searched only for "Ampcontrol" in their emails produced no results, but the applicant has emails sent to that staff member (Mr Burns) which contain that word. 7. The evidence does not show that a particular file SF/18/66242, referred to in the decision, was searched. 8. An individual (Ms Drain) at the Mines Safety Technology Centre (MSTC) who was allegedly consulted over the Order, did not conduct any searches. 1. In addition the applicant says documents which it would have expected to have been in the respondent's possession were not located. These include internal meeting minutes, stakeholder engagement records, and industry feedback on the proposed Order which were referred to in other documents. The applicant relies on the evidence of the respondent that initially the Department did not consider "stakeholder engagement" included correspondence with the applicant. It later revised this position and conducted relevant searches. The respondent's case 1. The respondent submits that four different branches of the Department conducted searches over 48 hours. It was appropriate that each officer make their own judgement of what search terms would most effectively find relevant information within their own emails. 2. Mr Kurtz searched his personal folder as he stored documents there. Other staff may not have had documents in their personal folders, although there was no evidence on this point. 3. The matters raised by the applicant were minor and not sufficient to show that the searches were not adequate. Some meeting minutes were produced and it should not be assumed that all meetings were minuted. Minutes are stored on four systems, all of which were searched. Only two out of nine staff who searched their emails used plural search terms. Skype calls are not recorded. 4. The claims of inadequate search terms relate to emails only and it is not likely that minutes would be stored in email systems. 5. Section 53 does not require the respondent to conduct every possible form of search available to it. 6. Ms Drain was not believed to have any involvement in the Order or if she did, it was minor. The MSTC did produce some documents. Consideration 1. The applicant has the onus of establishing, firstly, reasonable grounds to believe that the requested information exists and is held by the agency. 2. The information in question is described by the applicant as internal meeting minutes, stakeholder engagement and industry feedback on the Order. 3. With regard to internal meeting minutes, the applicant produced a list of "Missing Documentation" which listed the references to meetings it claimed should have been minuted. As to items 1, 3, 5 and 6, I am not satisfied that these references establish that any meeting actually occurred. Items 2, 4, and 7 do refer to meetings but these may have been meetings which, as submitted by the respondent, did not produce minutes. 4. The only available evidence that any engagement with stakeholders and industry was conducted other than with the applicant was a request in Document 27 (quoted by the applicant) by a Ms Brown to the MSTC saying it "it would be helpful to us to see the industry feedback just in case it raises something". I infer from this that Ms Brown expected the MSTC to have records of such feedback, but there is nothing to show that it existed and the applicant did not criticise the terms used by MSTC staff in their searches. The search terms they used appear quite broad and included "gas", "monitor" "design order" and "gazette", therefore it is more probable than not in my view, that if they held industry feedback on the order it would have been located. 5. There is evidence that the respondent's Strategy and Engagement Team who were involved in the creation of the Order also conducted searches and searched for "gas monitor" and "design order" in CM9 files, emails, and Mr Kurtz's personal folder. The applicant did not criticise those search terms used. The only criticism was that only Mr Kurtz searched his personal folder on his computer desktop. However that may be because he alone kept files there whereas records would normally be kept in the Department's record management and storage systems. This alone does not suggest that any relevant information exists in that part of the agency. 6. I do not think I can draw a conclusion that the information existed from a difference in the search terms listed in the evidence and the decision as the applicant submits. There is no logical connection between those matters. 7. The applicant's main criticism applied to email searches, but this relies on assuming that the information sought would have been stored in emails, and only applies to the emails of two out of a total of nine staff. 8. On the basis of the available evidence I am not satisfied that the relevant information existed and was held by the respondent. It is therefore not necessary to consider if its search efforts were adequate. Legal professional privilege 1. Clause 5 of Schedule 1 creates an overriding public interest consideration against disclosure for "information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege)". 2. Section 118 of the Evidence Act 1995 (NSW) describes the test for determining whether legal advice is privileged, which the Tribunal has held is effectively the same as under the common law (Transport for NSW v Robinson [2018] NSWCATAP 123 at [43]: 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. 1. The "dominant purpose" is the prevailing or paramount purpose (AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 at [44]). 2. A lawyer-client relationship must exist for the communication or document to be privileged under s 118 and the communication or document must be confidential. The burden of establishing that is on the respondent (AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [25]). The respondent relied on an affidavit of Madeleine Thomas, the Acting Executive Director, Planning, Environment and Resources in the Legal and Governance Division of the Department. 3. Ms Thomas stated Departmental legal advice on draft documents is often summarised on the draft in italics by the Division's legal officers and it is understood that such advice is provided on a confidential basis. She stated that Mr Flint, the Manager Regulation and Development in the Strategy and Engagement Branch, submitted a request for legal advice in relation to the Plant Registration Policy Document in September 2018. A further request for advice was made by Mr Kurtz in January 2019. 4. [NOT FOR PUBLICATION] 5. Legal professional privilege may apply to legal advice provided by an employed government lawyer to another employee or branch of government, provided that the relationship is a professional relationship with an independent character notwithstanding the employment (Waterford v The Commonwealth of Australia (1987) 163 CLR 54). In that case it was said: "The questions raised under this head of the argument are not without difficulty. The fact that the Attorney-General was also the Minister administering the Act might create difficulty in a particular case in determining the purpose or purposes attaching to a document. Matters of policy and legal advice may be intermingled in the one document as appears to be the case with document numbered 29, which was made available to the appellant prior to the hearing of his appeal to the Federal Court. However, we do not think that the allegation of error of law by the Tribunal can be sustained. The appellant's submission fails to appreciate that the sole purpose test is a test that looks to the reason why the document was brought into existence. If its sole purpose was to seek or to give legal advice in relation to a matter, then the fact that it contains extraneous matter will not deny to it the protection of the privilege. The presence of matter other than legal advice may raise a question as to the purpose for which it was brought into existence but that is simply a question of fact to be determined by the Tribunal and its decision on such a question is final…" 1. The applicant disputed that certain comments by the lawyers constituted legal advice for the purpose of clause 5 of Sch 1, in reliance on the decision of the Court of Appeal in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84. 2. In that case the Court of Appeal held that regard must be had to the context when considering whether a communication to government with regard to drafting of proposed laws or their operation or application, was for the dominant purpose of advice or rather for operational, administrative or policy purposes: "…While, as I have earlier stated, it might be accepted that legal professional privilege can attach to communications made on the operation and application of laws, proposed laws and their drafting, it is essential to ensure, particularly in the government context, that the purpose for which a document was brought into existence was one which related to legal advice as opposed to operational, administrative or policy matters. As Lord Scott emphasised in Three Rivers (No 6) (at [38]) in order for privilege to apply advice must be given in 'the relevant legal context'. 95 In my view the Appeal Panel's statement (at [39]) concerning the administration of justice was an uncontroversial reference to the rationale of legal professional appeal [sic] (assisting and enhancing the administration of justice) to which the authorities refer. The Appeal Panel accepted (at [53]) that legal advice privilege could attach to advice given in connection with proposed laws and their drafting. It was not satisfied on its examination of the disputed documents, and in the context in which they were prepared, that the documents were given in that context or for such purposes. (per McColl JA, Handley and Hodgson JA agreeing [ 94-5])." 1. In considering the documents below I have considered whether the advice relates to legal matters rather than administrative, operational or policy matters. 2. The parties helpfully agreed on a schedule of documents in dispute. I have dealt with those documents below. The document numbers used below follow the numbering in the schedule and the confidential bundle. The documents are grouped according to their history and context as per Ms Thomas' affidavit and the applicant's submissions. Document 1 1. This is a draft policy framework containing a comment regarding legal advice. Ms Thomas states that the legal advice contained in the comment was provided by the Legal Division (although it is apparent that the comment was not made by that Division) following a review of policies associated with registration of plant design. 2. [NOT FOR PUBLICATION] 3. I am satisfied that disclosing this comment would disclose a confidential communication for the dominant purpose of providing legal advice provided to the respondent by its legal advisers. Document 24 1. This is a draft Design Registration Policy. It has been partially released. The part withheld contains a comment on a section of the policy. I am not satisfied that disclosure of this comment would disclose a confidential communication for the dominant purpose of obtaining legal advice as it is not clear that it was made for that purpose or that it was addressed to legal advisers. 2. [NOT FOR PUBLICATION] Document 25 1. This is the same as document 1 and the same decision applies to it. Document 26 1. This is a draft Plant Design Registration Policy. It has been partially released. 2. [NOT FOR PUBLICATION] 3. I am satisfied that disclosure of the withheld part of the document would disclose a confidential communication for the dominant purpose of providing legal advice. Document 32 1. This document has been partially released. Pages 4 and 5 have been withheld. 2. [NOT FOR PUBLICATION] 3. I am satisfied that page 5 contains a confidential communication for the dominant purpose of obtaining legal advice but I am not satisfied that page 4 falls into that category. Document 2 1. This is a request for approval to seek legal advice and contains the scope of the advice and background. 2. This was clearly created for the dominant purpose of seeking legal advice. Documents 3, 4, 7, 8, 9 (7 is identical to 14, 19 and 56) 1. I note the applicant accepts Documents 3, 4 and 9 are privileged. I am satisfied that these are all confidential communications made for the dominant purposes of obtaining of legal advice. Documents 7 and 8 are drafts of the Order. Ms Thomas states and it is evident that they contain comments by legal advisers Ms Phang and Ms Halpin. 2. [NOT FOR PUBLICATION] 3. Having reviewed those documents also I am satisfied that disclosing Documents 7 and 8 would disclose confidential communications made for the dominant purpose of giving and receiving legal advice. Document 6 (identical to 34 and 52) 1. This document is an email containing redacted wording. Ms Thomas states that it reveals the substance of confidential legal advice. If it were released in full, when viewed with the final form of the Order, it would be apparent what legal advice was provided. 2. [NOT FOR PUBLICATION] 3. It is not clear to me how disclosure of this would disclose the content of confidential legal advice. Even if the applicant had a draft and the final version, it would not be clear what advice was given. It is not itself a confidential communication for the purpose of obtaining legal advice. Documents 10, 11, 17, 18, 21 (10 is identical to 13 and 53) 1. These are copies of the Order with track changes made on the document. Ms Thomas states that the track changes show the legal advice which was adopted by the agency and for that reason they reveal the content of confidential legal advice relating to the Order. Ms Thomas states that track changes in the documents replicate the legal advice contained in Document 7 and make it clear what aspects of the advice were adopted. 2. [NOT FOR PUBLICATION] 3. The respondent submits the privilege applies to any information from which the nature of the advice may be inferred, in reliance on Southland Coal Pty Ltd (receivers and managers appointed) (in liq) (2006) NSWSC 899 at [14(e)]. In that case his Honour Justice Austin held: "The question is whether what is disclosed by adducing the evidence explicitly reveals the confidential communication or the contents of the confidential document, or supports an inference of fact as to the content of the confidential communication or document, which has a definite and reasonable foundation. Disclosure does not occur if what is adduced in evidence merely causes the reader to 'wonder or speculate whether legal advice has been obtained and what was the substance of that advice' ( AWB Ltd v Cole at [133], per Young J)." 1. A reader of Documents 10, 11, 17, 18 and 21, however, cannot readily infer the content of any legal advice. In my view those documents are in the category of documents which cause the reader to speculate whether legal advice was obtained on a particular point and what the legal advice may have been, as described above. On that basis I am not satisfied that the privilege applies. Document 12 1. Document 12 is an email chain of 3 emails. The last email is from the legal advisers to Mr Kurtz which is clearly a confidential communication for the purpose of giving legal advice and the second email is from Mr Kurtz forwarding that communication to a third person summarising that advice. I am satisfied that legal professional privilege would apply to this document. Document 15 (identical to 54) 1. This comprises the last two of the emails in Document 12 and therefore the same privilege applies. Document 16 1. This contains the last two of the emails in Document 12 plus an email referring to an attachment. The additional email from Mr Barry to Mr Kurtz is not privileged, but the last two emails are, for the same reasons as stated for Document 12. Document 20 1. This contains the last two emails in Document 12 plus an email from Mr Kurtz to Mr Linnane and others. I am satisfied that the last two emails are privileged for the same reason that Document 12 is, but the email from Mr Kurtz to Mr Linnane, Mr Barry and Mr Flint at the top of the chain is not. Document 22 1. This is another email chain, the first two emails in the chain between Mr Kurtz and Mr Linnane and others do not disclose any confidential communication within the scope of the privilege, however, the last 2 are the same as the two emails in Document 12 and the privilege applies to them for the same reason. Conclusion 1. For the reasons above I have concluded that it is to be conclusively presumed that there is a public interest consideration against disclosure of the following documents pursuant to clause 5 of Sch 1: 1. Documents 1, 2, 3, 4, 7 (also 14, 19, and 56 which are identical), 8, 9, 12, 15, 16 (last 2 emails only), 20 (last 2 emails only), 22 (last 2 emails only) 25, 26, 32 (page 5 only). 1. The remaining documents may be released to the applicant. Orders 1. The name of the respondent in the proceedings is amended to Department of Planning, Industry and Environment. 2. The decision of the respondent is varied by granting access to the information listed in the Schedule to these reasons to the applicant. 3. The respondent's decision is otherwise affirmed. SCHEDULE 1. Documents 5, 28, 29, 33, and 57 2. Document 6 (also 34 and 52 which are identical) 3. Document 10 (also 13 and 53 which are identical) 4. Document 11 5. The email from Mr Barry to Mr Kurtz dated 29 January 2019 on page 1 of Document 16 6. Documents 17 and 18 7. The email from Mr Kurtz to Mr Linnane, Mr Barry and Mr Flint dated 29 January 2019 on page 1 of Document 20 8. The first two emails from Mr Kurtz to Mr Linnane, Mr Barry and Mr Flint dated 29 January 2019 on page 1 and part of page 2 of Document 22 9. Document 24 10. Page 4 of Document 32. ********** 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: 08 April 2020