Gliksman v Director General, NSW Department of Health [2002] NSWADT 1 (7 January 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Gliksman -v- Director General, NSW Department of Health [2002] NSWADT 1 revised - 26/02/2002

PARTIES: APPLICANT

Michael Gliksman

RESPONDENT

Director General, NSW Department of Health

FILE NUMBERS: 013055

HEARING DATES: 25/07/2001

SUBMISSIONS CLOSED: 25/07/2001

DECISION DATE: 07/01/2002

BEFORE: O'Connor K - DCJ (President)Britton A - Judicial MemberGroth D - Member

LEGISLATION CITED: Evidence Act 1995

Freedom of Information Act 1989

Independent Commission Against Corruption Act 1988

CASES CITED: Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67

Charteris v Leichhardt Municipal Council [2001] NSWADTAP 12

Daykin v SAS Trustee Corporation [2000] NSWADT 51

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

Re the Fallon Group Pty Ltd and Federal Commissioner of Taxation (1995) ATC 2134

Rath J in Komacha v Orange City Council, unreported

Mangoplah Pastoral Co v Great Southern Energy [1999] NSWADT 93

Chief Executive, SAS Trustee Corporation v Daykin [2000] NSWADTAP 20

APPLICATION: access to documents - legal professional privilege

Freedom of Information Act - access to documents - legal professional privilege

MATTER FOR DECISION: Preliminary matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

K Sidler, solicitor

ORDERS: Decision under review affirmed.

Reasons for Decision:

1 Dr Gliksman (the applicant) has lodged an application for review of a decision by the Department of Health (the agency) to refuse his request made for access to certain documents under the Freedom of Information Act 1989 (FOI Act).

2 This decision deals with the agency's decision in so far as it withholds certain documents or extracts in documents on the basis of the legal professional privilege exemption.

3 It does not deal with a further element of the agency's decision, involving the withholding of documents on the basis that granting access would involve the unreasonable disclosure of the personal affairs of third persons.

Background

4 Before referring to the history of the present application and the issues in dispute in this case, it is helpful to give an outline of the context in which this application arises.

5 The following account is derived from the documentation placed before the Tribunal for the purposes of considering the application for review. The documentation comprises, one, the agency documents for which exemption is claimed in whole or in part on the ground of legal professional privilege; and, two, extracts from official reports filed by the applicant in support of his submissions. The agency documents include the report of an Investigation by the Audit Branch of the agency dated November 1994 (Document 41). The applicant's official extracts include excerpts from an Ombudsman's report of December 1996. This account should not be read as involving any findings of fact on the part of the Tribunal.

6 The applicant is a medical practitioner with a number of advanced qualifications whose field of interest, as at 1990, was research in relation to developmental issues affecting children. As at mid 1990 he was a National Health and Medical Research Council research fellow. It is not entirely clear from the documents but it would appear that he was engaged to undertake research within the North Sydney Area Health Service (NSAHS) in mid-1990. He was also given a clinical appointment, as a visiting medical officer in child and adolescent psychiatry, at Arndell Children's Unit (ACU) on a part time basis (3 hours once a week). The NSAHS Board renewed his appointment in December 1991 for a further 12 months, specifically for the purpose of `promoting and evaluating research in the Royal North Shore Hospital Child and Adolescent Psychiatry Services', which included `promoting, supervising and implementing research programs to ensure proper evaluation of the entire service.' The visiting medical officer appointment continued. That appointment was the subject of an `Agreement for Clinical Work' with the Director, ACU, Dr Kowalenko, the one relevant for present purposes being dated 1 July 1992.

7 During 1992 the applicant, in line with his research responsibilities, had been a participant in the preparation of submissions for annual mental health research grants made by the agency. The grant applications were dealt with in September 1992 by a process involving committee recommendations to the Director, Mental Health Branch, Dr Wilton, who in turn advised the Minister.

8 Among the applications put in by staff associated with Arndell, two are relevant to this case. The first, using the committee's grants numbering system, is commonly referred to as Project no. 20. It was entitled, The influence of socio-demographic, clinical and treatment related variables on short-term outcomes in a group of severely emotionally disturbed children. The other was commonly referred to as Project no. 21 and is entitled Sociodemographic, diagnostic and clinical predictors of severity of disturbance and long-term outcome in severely emotionally disturbed children.

9 An assessment committee reported to the Director, Mental Health Branch. It commended project no. 21. The applicant was nominated as a principal co-researcher for that project along with Mr Luiker from Arndell. On 1 October 1992 the Branch advised the applicant that project no. 21 had been successful. On 16 October 1992 the applicant was advised that there had been a mix-up in the project titles and due to `inadvertent error' he had been wrongly advised, and project no. 20 was to be funded.

10 Dr Wilton agreed that the committee recommendation had been in favour of no. 21; but for reasons to do with concerns over the quality of earlier projects and because project no. 20 dealt with a subject logically prior to the subject of project no. 21, he decided to approve instead and only ever approved project no. 20. In the case of project no. 20, the applicant was not a principal researcher. In that instance Mr Luiker alone was nominated as the `chief investigator' with the applicant being nominated as one of the members of the research team under Mr Luiker. The other members of that team under Mr Luiker were Dr Kowalenko, Mr McDonald and Mr Sawyer.

11 The issue of whether Dr Wilton had initially approved project no. 21, in which the applicant had a more prominent role, and then changed his decision was important because of events that occurred on 16 October. On 16 October the Director told Ms C Terpaj, the public service officer who was responsible for managing the assessment process, that he had been informed by head of child and adolescent psychiatry for NSAHS, Dr St George, that serious allegations had been made against the applicant. He said that they were to the effect that the applicant had sexually abused State wards who had been placed in his care for brief periods by the Department of Community Services. Ms Terpaj told the investigation that she had been directed by the Director that it would be inappropriate to include the applicant as an identified investigator in a project funded by the agency and to approve project no. 20 instead of project no. 21. The applicant was removed from this research team.

12 The investigation team considered Ms Terpaj was confusing in her answers to them as to which project was approved; and neither accepted or rejected her account of what occurred, or that of Dr Wilton. According to the Ombudsman's report of December 1996, the Audit Branch reported that it was unable definitively to establish the reason for the applicant's removal from the research team.

13 On the other hand the head of child and adolescent psychiatry, Dr St George, told the investigation that he did not communicate any allegation of abuse or sexual abuse of children by the applicant to Dr Wilton nor was he aware of any such allegation. The applicant was not included in the persons permitted to be involved in project no. 20. Dr Wilton approved Mr Luiker and Dr Kowalenko as the principal researchers for project no. 20 which was also a variation from the grant application which had Mr Luiker alone as the principal researcher. In February 1993 the agency signed the funding agreement with them.

14 Following the allegations, Dr Kowalenko reported the matter to the NSAHS; and on 11 November 1992 suspended the applicant from clinical duty. On 22 December 1992 the applicant appeared before the Credentials Committee of NSAHS.

15 He was given notice in advance as to the Committee's concerns. They were that he had failed to inform his clinical supervisor in relation to therapy of a current outpatient, that he had changed the perceived nature of the relationship from therapist to friend by having the child at his home on occasions and making a unilateral decision to make a long term commitment to the child. The child was referred to as a child who had run away to Kings Cross after discharge from Arndell. There were no allegations of sexual misconduct.

16 The NSAHS Board, acting on the recommendation of the Credentials Committee, decided to withdraw all clinical privileges from the applicant. The NSAHS Board directed the applicant not to engage in the practice of child psychiatry but to confine himself to research and epidemiology.

17 The Medical Board of New South Wales considered the actions of the NSAHS Board and the concerns raised in respect of the applicant and decided in April 1993 to take no further action. It noted that the Credentials Committee of the NSAHS Board had acknowledged that the applicant's actions were `honourable and without wickedness, however there was sufficient concern about lack of accountability and confusion of roles, for all clinical privileges to be withdrawn.'

18 In its report, the Audit Branch said that Dr Kowalenko gave as explanations for excluding the applicant from the research team handling project no. 20: (1) the applicant was suspended from duty in November 1992 and his visiting medical officer appointment was not renewed because of his `crossing of boundaries' as a therapist, and (2) the applicant's unethical behaviour as it related to publication of a research paper in 1992.

19 That is where the matter stood as at April 1993. The applicant raised concerns with the Ombudsman over the research grants process and the handling of the allegations against him. Through 1993, he pressed the agency for a formal investigation into the events relating to the research grant process.

20 In this case the main document in dispute is Document 36. It is an advice given by the Legal Branch to the Director-General early in 1994. It is from the Deputy Director of the Legal Branch of the agency and is dated 25 February 1994. In April 1994 after that advice had been considered, the agency decided to commence an investigation.

21 It can be seen from the account so far that significant issues are raised as to the discrepancy between the extremely serious nature of the allegations Dr Wilton says he received from Dr St George and Dr St George's denials. The Medical Board would appear to have seen the issues as warranting no more than removing the applicant from a clinical relationship with patients.

22 Initially the Audit Branch's investigation was confined to a review of the circumstances surrounding the research grants decisions of 1992. When its investigation was well advanced Dr Kowalenko advised the head of the investigation that he had received an allegation against the applicant of sexual abuse of children. The Audit Branch extended its inquiry to this allegation. The Audit Branch was then advised by the Legal Branch to present two separate reports. Two reports resulted, one entitled Complaint by Dr Gliksman concerning the Department of Health, NSW, Mental Health Branch, Research Grant Funding for 1992/93 (November 1994); and a second entitled, Allegation of Child Sexual Abuse Against Dr Gliksman (Former Visiting Medical Officer, Arndell Children's Unit) Arising from a Complaint by Dr Gliksman about Research Funding (November 1994). The second report is not in the Tribunal's documentation.

23 There were also representations by the applicant to the Ombudsman from 1993 onwards.

24 The Ombudsman's report dated 23 December 1996 derives from a complaint made to the Medical Board on 22 December 1994 by another doctor and its aftermath. It is not immediately clear whether that complaint is the same as the allegation notified by Dr Kowalenko to the Audit Branch investigation in November 1994.

25 The State President of the Australian Medical Association wrote to the Ombudsman on 9 August 1995 asking him to examine issues relating to that complaint. The State President asserted that the complaint was made in bad faith and with the motive of intimidating and silencing the applicant who was seen as a whistleblower about both the administration of ACU and about the conduct of Arndell's director, Dr Kowalenko, in relation to an intellectual property dispute it was said Dr Kowalenko had with the applicant. The intellectual property dispute is referred to at several points of the documentation, and relates to such issues as the use, if any, made of the applicant's research work from 1992 in the approved research project from which he was barred.

26 The Ombudsman's office issued a report dated 23 December 1996 which is entitled Report under Section 29 of the Ombudsman Act, Northern Sydney Area Health Service and the Department of Health, Complaint by AMA on behalf of Dr Gliksman that a complaint to the Medical Board about Dr Gliksman was made in bad faith and designed to silence a critic. Only extracts from this report are in the material before the Tribunal.

27 The applicant's claim has been that the original allegations of 16 October 1992 as well as those of November 1994 were spurious and malicious, from a person or persons who wanted to force him out of the research project and to prevent him from continuing to work with children in need.

The Application: History

28 The applicant's original access request to the agency was made by letter dated 14 March 2000 and sought:

`full copies of all material pertaining to an investigation by the Audit Branch conducted in he mid 1990s, into allegations made by myself of misconduct by the Mental Health Branch regarding the funding of research at the Arndell Children's Unit.'

29 The agency provided the Tribunal with a chronology of events in relation to its handling of the request. On 21 December 2000 the agency issued its original determination. The letter of advice stated that the agency had identified 208 documents affected by the application. Full access was granted to 149 documents and partial access was granted to 45 documents, with 13 refused in their entirety. By letter dated 9 January 2001, the applicant requested internal review. By letter dated 23 January 2001 the agency varied its original determination.

30 The net result was that parts of 5 documents were refused on the grounds of the legal professional privilege exemption (FOI Act, Sched 2, cl 10); and 12 documents were refused in part or in whole on the grounds of the privacy exemption, as they were considered to involve the unreasonable disclosure of a person's personal affairs (FOI Act, Sched 2, cl 6). Of the latter 12 documents, one (Document 18) was said to detail the current work location of personnel previously employed by the agency and interviewed as part of the audit investigation. The other 11 were said to relate to patients of ACU, and would disclose their identity or information about their problems and treatments, or both.

31 The applicant lodged the application for review with the Tribunal on 15 March 2001.

32 Following planning meetings held by the Tribunal with the applicant and the agency, it was agreed that this decision would be confined to those documents withheld in reliance on the legal professional privilege exemption.

33 At the hearing on 25 July 2001, the Tribunal made an order by consent of the parties that Document 18 be released and that the draft letter to the applicant prepared by the legal officer of the agency responsible for the advice contained in Document 36 be released to the applicant wherever it appears in the documents remaining in issue. The draft letter is, for example, folio 6 in Document 36.

34 The application for review remains to be resolved as it relates to the eleven documents that remain affected by the personal affairs/privacy exemption. Third party consultation procedures (and an Ombudsman review of one of the third party's concerns) remained incomplete as at 25 July 2001.

35 Those documents will be the subject of a separate decision to the extent that they are not resolved by the current processes.

Documents in Issue

36 The following documents are in issue for the purpose of this decision: Document 36 (folios 1-5). The other documents affected are reproductions of Document 36 or contain extracts from it or seek to summarise it. They are Documents 41 (61-64), 42 (66-69), 46 and 128.

The Applicable Law

37 The terms of the relevant exemption are:

`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.'

38 In a number of recent decisions the Tribunal has set out the law relating to legal professional privilege as it now stands following the decision of the High Court in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67: see, e.g. Charteris v Leichhardt Municipal Council [2001] NSWADTAP 12 at [31]; Daykin v SAS Trustee Corporation [2000] NSWADT 51. In Esso the High Court restated the common law as to what documents were protected by legal professional privilege so as to prefer the opinion given by Barwick CJ in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 677:

`a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.'

39 While the applicant contests the proposition, it is, I consider, clear law that legal professional privilege may be invoked by a government agency in respect of communications made to other officers of the agency by its salaried legal officers which contain legal advice: see Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 (and comment, (1987) 61 ALJ 673), a case in which the Commonwealth Attorney General's Department successfully resisted disclosure on the basis that the document in issue contained advice covered by the privilege; and Re the Fallon Group Pty Ltd and Federal Commissioner of Taxation (1995) ATC 2134 at 2142.

40 The exemption only applies to so much of any such document as is in the nature of legal advice as distinct from any recommendations then made by officers in receipt of the advice as to the corporate action that might then be taken. (Some other exemption may of course possibly be applicable to the consequential action recommendation.) See further, Re Fallon at 2143 citing with approval Rath J in Komacha v Orange City Council, unreported.

Assessment: Document 36 (Legal Branch advice 22 February 1994); Document 128 (exact copy)

41 As previously noted, this advice was given in response to representations from the applicant that there be an investigation. It is a written advice from the deputy director of the Legal Branch addressed first to the Director, Legal Branch and ultimately to the Director, Mental Health.

42 The Tribunal has scrutinised the document in issue. The Tribunal is satisfied that it is a legal advice of a kind that is subject to legal professional privilege.

43 The advice records as the reason for it being generated, `Legal Branch has been asked to provide advice in relation to correspondence from Dr Gliksman.' The advice then proceeds to set out a background, and then deals with a series of possible legal or other avenues of redress in relation to his grievances that the applicant might pursue against the agency. The advice expresses opinions as to the likelihood of these courses of action and their apparent strength or weakness. There is a draft letter attached for the Director to send to the applicant in relation to his grievances. The applicant has a copy of that letter; that it is the letter that the agency has now consented to disclose and is the subject of the consent order made on 25 July 2001.

Assessment: Document 41 (Folios 61-64) (part of the contents of the Investigation Report from Audit Branch headed Complaint by Dr Gliksman concerning the Department of Health, NSW, Mental Health Branch, Research Grant Funding for 1992/93.); Document 42 (Folios 66-69) (part of the contents of the original copy of the document referred to as Document 41)

44 Documents 41 and 42 are copies of the first of the two Investigation Reports of November 1994. The folios in issue contain full copies of Document 36, and are exempt for the same reason.

Document 46: Attachment only (The principal document is a Memorandum from C. Terpaj, Mental Health Branch to the officer of the Audit Branch who conducted the investigation, J Manton, dated 10 June 1994)

45 The Attachment is an exact copy of Document 36. It is exempt for the same reasons.

Public Interest and Other Considerations

46 The applicant acknowledged in his written and oral submissions that it was probable that the document to which he was seeking access was protected by legal professional privilege.

47 However, he contended that nonetheless the Tribunal should order release by exercising the power vested in agencies under s 25(1) of the Act. An agency is always at liberty to release documents and not to rely on an exemption that might be applicable. The one exception is that it is bound to refuse to disclose a document unless it is a restricted document that is subject to a Ministerial certificate.

48 The terms of s 25 material to this case are those found in s 25(1)(a), i.e. `An agency may refuse access to a document: (a) if it is an exempt document.' (emphasis added) The applicant submits that the correct and preferable decision in this case would have been to exercise its discretion so as not to invoke the exemption but instead release the document. He says that it would be in the public interest for that to occur.

49 He referred to the decision of the Tribunal in Mangoplah Pastoral Co v Great Southern Energy [1999] NSWADT 93. The Tribunal held there that because of the discretionary language of s 25(1)(a) the Tribunal like the agency had the power to direct that the document be released even though an exemption was available. That approach, it considered, was consistent with the policy objectives of FOI legislation, being among other things to make government decision-making processes transparent through promoting public access to government information. The Tribunal held in that case that the question of whether release should be ordered in relation to a document to which an exemption is applicable may be considered by reference to the public interest. If the public interest warrants release, an order for release may be made.

50 The ruling in Mangoplah has been endorsed without close analysis in a number of other decisions. A number of government agency submissions in subsequent cases have questioned this interpretation of the law. The questions raised have yet to be considered in detail at the Appeal Panel level. I am not inclined in this case to reach a concluded view on these questions.

51 I was the presiding member of the Appeal Panel (where again the s 25 question was not resolved) which observed that the Tribunal should be extremely cautious in exercising any public interest `override' discretion that might be available under s 25 where legal professional privilege is involved: see Chief Executive, SAS Trustee Corporation v Daykin [2000] NSWADTAP 20 at [37] and following. The reason for caution is that legal professional privilege is itself the expression of a fundamental public interest concern connected with the due administration of justice. The competing public interest would have to be one of extraordinarily high degree for that fundamental public interest to prevail over of the competing interest. This case is, in my view, not at that order of magnitude.

52 The applicant refers in his submissions to s 125 of the Evidence Act 1995. This provision is one of series of provisions dealing with client legal privilege (the new term for legal professional privilege) as it applies to the adduction of evidence in legal proceedings. Section 125 provides that a communication otherwise privileged may be adduced in evidence if it is made `in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty'. The advice can not be reasonably characterised in this way.

53 As I see it the references made by the applicant to s 125 of the Evidence Act and to ss 7, 8 and 9 of the Independent Commission Against Corruption Act 1988 (the provisions relating to the meaning of `corrupt conduct') seek to put in issue the conduct of the agency in relation to his removal from the research project and in relation to the handling of the allegations.

54 The advice is of a conventional kind, given in response to concerns expressed by a citizen over a departmental decision-making process. The later investigation by the Audit Branch dealt with the applicant's concerns as they related to the events of 1992. The investigation acknowledged inadequacies in the process and left unresolved some critical matters. The sources and nature of the allegations said to have been made on 16 October 1992 remains unknown to the applicant. His sense of grievance is understandable.

55 The advice was incorporated into subsequent official documents, in particular the investigation report, as part of the history of the matter. That did not, I consider, deprive it of its status as confidential legal advice subject to privilege.

Order

Decision under review affirmed.

Revised 26/02/2002 - Paragraph 51.