Vranic v Director, Legal Aid Commission of New South Wales [2001] NSWADT 59 (19 April 2001)

Last Updated: 6 June 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Vranic -v- Director, Legal Aid Commission of New South Wales [2001] NSWADT 59

PARTIES: APPLICANT

Ljubica Vranic

RESPONDENT

Director, Legal Aid Commission of New South Wales

FILE NUMBERS: 013026

HEARING DATES: 11/4/2001

SUBMISSIONS CLOSED: 11/04/2001

DECISION DATE: 19/04/2001

BEFORE: O'Connor K - DCJ (President)

LEGISLATION CITED: Freedom of Information Act 1989

Legal Aid Act 1979

CASES CITED: Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43

Dawson v Commissioner, Health Care Complaints Commission [1999] NSWADT 57

APPLICATION: access to documents - confidential material

access to documents - personal affairs

access to documents - secrecy provisions

Freedom of Information Act - access to documents - confidential material

Freedom of Information Act - access to documents - personal affairs

Freedom of Information Act - access to documents - secrecy provisions

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

J Walker, solicitor

ORDERS: 1. Decision under appeal affirmed.

Reasons for Decision:

1 In this case, the Legal Aid Commission granted the applicant complete access with one exception to all documents in response to an access request made under the Freedom of Information Act 1989 (`the Act') (original decision made 10 October 2001 confirmed on internal review, internal review decision dated 22 January 2001). The applicant has applied to the Tribunal for review of that decision: application for review filed 31 January 2001.

2 The applicant had at various times been a client of the Commission.

3 To process her access request it had been necessary for the Commission to recover one of the files relating to her from archival storage. There was one document in that file which the Commission released with deletions. The document was an archival record sheet headed "The Government Records Repository, Details of Cartons Packed for Storage in the Government Records Repositories". The sheet listed all files held in the archival storage box in which the applicant's file was held. The list contained the names of the clients to whom those files related and the file numbers. The applicant's was one of the names. As noted, the document was made available to her but with all the other names and file numbers deleted.

4 In justification of its decision not to release the information the Commission relies on three of the grounds under which it is permitted to exempt material from disclosure - the personal affairs exemption (cl 6 of Sched 1 of the Act), the confidentiality exemption (cl 13 of Sched 1 of the Act) and the secrecy provisions exemption (cl 12 of Sched 1 of the Act). The Commission drew the Tribunal's attention to the provisions of the Legal Aid Commission Act which declare that the relationship between an employed legal officer of the Commission and the client is a solicitor-client relationship, and the statutory prohibition on disclosure of information acquired in that context: see respectively s 25 and s 26 of the Legal Aid Act 1979.

5 The applicant made two basic points. One, she wanted to know why information about other people was in her file when she had not given the Commission or anyone permission to put that information in her file, and two, she wanted to know who the people `in her file' were.

6 She said that she considered that she was entitled to have access to every document held in her file. She felt that it was an intrusion on her privacy for material about other people to be in her file.

7 Mr Walker, a solicitor from the Commission, appeared. He acknowledged that it was not usual for an archival record sheet to be found inside a client file. He said that normally such a sheet would be held within the storage box but separately from the individual files. He ventured the explanation that it may have been placed with the file on an earlier occasion when the file had been removed to assist the Commission in responding to an earlier FOI request by the applicant, so as to ensure that the file found its way later back to the right box. I am not in a position to form any concluded view on that explanation, but I do accept that it would not be usual practice for an archival storage sheet of this kind to be held inside one or all of the files in the box.

8 The applicant at times appeared to express the view that she had an absolute right to see any document that was found in a file that related to her. She did not consider that that right should be displaced by having regard to the privacy and confidentiality interests of others where their details appear in her file.

9 The Commission supplied to the Tribunal a complete copy of the document that was partially released to the applicant.

10 I am satisfied that it is, as stated by the Commission, an archival record sheet. It lists the names and file numbers of the persons to whom the other files in the list relate. I am satisfied from the material before me that these names are the names of clients of the Commission. I accept that it would be an unreasonable intrusion into their personal affairs for their identities to be made known to the applicant. I accept that such a disclosure would also involve a breach of the confidentiality of the solicitor-client relationship.

11 While the disclosure of a mere name may sometimes not involve a disclosure of `personal affairs', I am satisfied that in this instance the disclosure of the names would disclose by association the fact that the named persons were clients of the Commission: see generally Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43; Dawson v Commissioner, Health Care Complaints Commission [1999] NSWADT 57.

12 I am satisfied that the Commission was entitled to rely on the personal affairs exemption (cl 6 of Sched 1 of the Act) and the confidentiality exemption (in particular para (b) of cl 13 of Sched 1 of the Act) to decline to give access in full to the document.

13 There are no public interest factors that might justify the Tribunal in not accepting the approach taken by the Commission.

14 I have not in these reasons examined whether the secrecy provisions exemption can also be properly invoked. I do not regard it as necessary on this occasion, in a case of a very limited nature, to explore that question.

15 I direct that the exempt document be returned to the Commission.

16 Decision under appeal affirmed.