Cianfrano v Director General, Attorney General's Department [2005] NSWADT 303 (20 December 2005)

Last Updated: 21 December 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Cianfrano v Director General, Attorney General's Department [2005] NSWADT 303


PARTIES: APPLICANT
Robert Cianfrano
RESPONDENT
Director General, Attorney General's Department



FILE NUMBERS: 053049

HEARING DATES: 29/06/2005

SUBMISSIONS CLOSED: 29/06/2005



DECISION DATE: 20/12/2005

BEFORE: O'Connor K - DCJ (President)





LEGISLATION CITED: Freedom of Information Act 1989

CASES CITED: Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282
Saggers v Director General, Attorney General's Department [2005] NSWADT 193
Cianfrano v Director-General, Premier's Department NSW & anor [2004] NSWADT 255
Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135
Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADTAP 40
Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244
Commonwealth v Dutton [2000] FCA 1466; (2000) 102 FCR 168
Balabel v Air-India [1988] 1 Ch 317
Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54
Law Society of New South Wales v General Manager, WorkCover Authority of New South Wales [2004] NSWADTAP 40
Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282
Simos v Wilkins (15 May 1996, unreported, Dist Ct NSW (Cooper DCJ))

APPLICATION: access to documents - business affairs
access to documents - cabinet documents
access to documents - legal professional privilege
Freedom of Information Act - access to documents - business affairs
Freedom of Information Act - access to documents - cabinet documents
Freedom of Information Act - access to documents - legal professional privilege

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
M Allars of counsel instructed by G Mahony, Crown Solicitor's Office

ORDERS: 1. The application for review is allowed in part
2. The respondent’s determination is set aside in relation to
(a) Documents 81-84; and
(b) Document 88
3. The Tribunal’s orders are to take effect 28 clear days after the publication of its decision


Reasons for Decision:

REASONS FOR DECISION

1 The applicant applies under the Freedom of Information Act 1989 for review of a determination of the respondent agency refusing access to certain documents. The request made on 2 June 2004 sought access to the following documents:

‘All internal and administrative documentation and all communications of the Attorney General’s Department in relation to the lease and sale of the Flemington Markets ...[including]:
All phone call records
All file notes
All diary notes
All faxes transmission records
All memos records
All email records
And all bits of paper etc.’

2 The main focus of this application was seen by both parties as being documents held by the Crown Solicitor’s Office (CSO), a business unit of the Department. The CSO had been the legal adviser to the Government in respect of the sale of the Flemington Markets site to Sydney Markets Limited. This is one of a number of cases that has reached the Tribunal where the applicant (or his associate, Mr Saggers) has sought agency documentation relating to that process.

3 The original determination was to release 56 documents and withhold 88 documents as exempt. The determination was the subject of internal review by the Director General, who upheld the determination. In his reasons the Director General dealt with various criticisms that the applicant had made of the original determination and the handling of his application by the Department.

4 The reasons rejected the criticism that the Department had ‘unlawfully’ claimed exemptions, and that it had done so to cover up financial transactions engaged in by the Crown. The reasons also rejected the criticism that the Department had not sufficiently considered the possibility provided for by s 25(4) of partial release of the exempt documents, or that public interest factors had not been addressed to the degree appropriate in applying the exemptions, and finally that the Department had not demonstrated that it had undertaken a sufficient search. The reasons also noted that an advance deposit requested by the Department had not been paid following on the extension of the scope of the request, and therefore it was not prepared to undertake any further searches in respect of the extended request.

5 The matters before the Tribunal relate only to the original request and its determination.

6 The Tribunal has before it: two statements of evidence from Ms Janet de Castro Lopo, the officer responsible for FOI co-ordination in the Department, the main statement being non-confidential, the second confidential; two sets of written submissions from the Department, the principal submissions and submissions in reply to the applicant’s submissions; the applicant’s submissions; a schedule of documents; and the documents in dispute.

7 A person has a legally enforceable right to access to any document of an agency the subject of a request (s 16), subject to various qualifications and exceptions. An agency may refuse access to an exempt document (s 25(1)(a)) and the grounds of exemption are set out in Schedule 1 to the Act.

8 In this instance the claim made in respect of 86 of the 88 documents is that they are exempt on two grounds – legal professional privilege (see cl 10 of Schedule 1) and as documents relating to the business affairs of the agency, the disclosure of which would have an adverse impact on those affairs of the kind recognised by the Act (see cl 7 of Schedule 1).

9 In the case of two documents, Document 41 and Document 88, the ground relied upon is the Cabinet documents exemption (cl 1). It is the Cabinet documents claim which is the subject of the additional material in the confidential statement of evidence.

Legal Professional Privilege

10 As noted, this claim is made in respect of 86 of the 88 documents, i.e. Documents 1-40, and 42-87. Clause 10 of Schedule 1 to the Act provides:

‘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.’

11 The submissions in this case are similar to those made in another case involving this applicant, having the same overall context, with which I have recently dealt: see Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282.

12 I repeat here the following passage from that decision, which is equally relevant to this case:

‘18 The Relevant Law: The Tribunal and Appeal Panel has now dealt in a number of decisions with the content of the relevant principles, including in cases involving the present applicant (or his associate in a number of the cases, Mr Saggers); see most recently, Saggers v Director General, Attorney General's Department [2005] NSWADT 193; also, Cianfrano v Director-General, Premier's Department NSW & anor [2004] NSWADT 255 at [29]- [35]; Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135, and they were also dealt with by the Appeal Panel in Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADTAP 40. I adopt the statements of law in those cases.
19 In these reasons, I note again Lockhart J’s well-known categorisation of documents affected by legal professional privilege in Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244, 245-6, which the agency has used as an organising basis for its submissions:

‘(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them.
(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used.
(c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance.
(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf.
(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence.
(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action.
(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.’’

13 Similarly here the agency has organised its submissions by reference to the following groupings drawn from the Lockhart analysis.

Group 1A: Internal CSO documents: D 1, 8, 19, 20, 22, 30, 31, 40, 51-53, 57, 62, 67, 76-78.
Group 1B: Communications between CSO and clients (Treasury, Premiers and Department of Public Works and Services (the latter Department now absorbed into the Department of Commerce)): D 2-7, 9-13, 17, 18, 23-29, 32-39, 42, 44, 46, 48-50, 54-56, 58-61, 63, 65, 66, 68, 69, 74, 75
Group 1C: Documents and communications to and from experts (Max Bowen; Kevin T Fennell & Assoc): D 14, 21, 43, 47, 70, 72, 79
Group 1D: Draft letters from CSO to Middleton, Moore and Bevin, solicitors for Sydney Markets Limited (the firm is now known as Acuity Legal): D 15, 16, 64, 71, 73
Group 1E: Draft contract for the sale land, Deed, draft Special Conditions: D 45, 80, 85-87
Group 1F: Communications between third parties carried out by CSO on behalf of client: D 81-84.

14 I will not deal in detail with the submissions of the agency. I accept the following propositions. It is well settled that legal professional privilege applies to communications between a government department and its external lawyer: see, for example, Commonwealth v Dutton [2000] FCA 1466; (2000) 102 FCR 168, 179-80 at [45] per Moore J. I also accept that there may be a mix of non-legal and legal advice in the advice rendered, but the whole document may remain protected by legal professional privilege: see, for example, Balabel v Air-India [1988] 1 Ch 317 at 330 per Taylor LJ, and Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 (Waterford) at 103 per Mason, Wilson and Brennan JJ; but, there is an outer boundary where the protection is lost if the advice can no longer be regarded in any sensible way as containing legal advice: as to which, see the Appeal Panel’s observations in Law Society of New South Wales v General Manager, WorkCover Authority of New South Wales [2004] NSWADTAP 40.

15 I also accept that legal professional privilege applies to professional legal advice furnished to officers of the executive government by salaried lawyers employed in the public service as it does to advice from legal practitioners in private practice: Waterford, esp at 63-64 per Mason, Wilson and Brennan JJ.

16 There is a complication in the public sector that does not ordinarily affect the evaluation of applicability of legal professional privilege when dealing with a private practitioner. This concerns the question of the degree of professional independence of the lawyer whose communication is said to be protected by the privilege. The privilege may be lost if, for example, the officer merely holds a law degree but is not, in any real sense, engaged in the practice of law when making the communication. In such a case it would be necessary in order for an agency to found a claim to exemption for it to rely on one of the grounds which is concerned with the ordinary processes of internal communication between officers in the executive arm of government (for example, the internal working documents exemption, cl 9).

17 In this instance, I am satisfied from the evidence provided by Ms de Castro Lopo and from scrutiny of the documents themselves that the CSO is a legal practice, and has the requisite degree of professional independence, applying the approach to this question taken by Brennan J in Waterford at 70 and 84.

18 I am also satisfied on the same basis that the CSO was consulted in a professional capacity by the relevant Departments connected with the negotiation and sale of the Flemington Markets.

19 Assessment: I have scrutinised all the documents the subject of this claim for exemption. I am satisfied that most of the categorisations made by counsel for the Department are accurate. Almost all of them are, without doubt in my view, protected by legal professional privilege. The central figure, in the case of all of the documents, is Mr Douglas Wilson, Assistant Crown Solicitor. The documentation is typical of a complex commercial transaction involving a range of interested parties. They show Mr Wilson giving advice on various drafts of the proposed contract of sale to the relevant agencies. They show him at times dealing with external consultants to the process such as Mr Bowen and Mr Fennell, and giving advice to the relevant agencies, having taken account of their views. They show him communicating with the prospective purchaser’s solicitors.

20 The documents also include records of searches and certificates required to be obtained as part of the process of completing the sale. I refer in that regard to Documents 81-84 described in the schedule of documents as Copy search request form completed by D Wilson (D81), Section 149(2) Planning Certificate prepared by Strathfield Municipal Council over 1/853054 (D82), Search request form completed by D Wilson (D83) and Property Information Inquiry Form (D84).

21 I have some difficulty seeing how these documents are protected by legal professional privilege. The submissions claim that they fall into Lockhart category (e), i.e. ‘communications and documents passing between the party’s solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purpose of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence’. In my view these documents do not fit this description. I accept that three of them record action taken in respect of the matter by Mr Wilson (D81, D83 and D84) but they seem to me to be no more than administrative records the revelation of which in no way infringes the important protections of the client-lawyer relationship furnished by legal professional privilege. As to D82, this appears to me to be a certificate of a public character supplied by a local council. The fact that it is supplied to a lawyer who has obtained the certificate in connection with work being done for a client seems to be the only basis for the claim to application of legal professional privilege. I am not satisfied that the claims for exemption are made out in respect of Documents 81-84.

Cabinet Documents Exemption

22 Clause 1 provides:

‘1 Cabinet documents
(1) A document is an exempt document:
(a) if it is a document that has been prepared for submission to Cabinet (whether or not it has been so submitted), or
(b) if it is a preliminary draft of a document referred to in paragraph (a), or
(c) if it is a document that is a copy of or of part of, or contains an extract from, a document referred to in paragraph (a) or (b), or
(d) if it is an official record of Cabinet, or
(e) if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet.
(2) A document is not an exempt document by virtue of this clause:
(a) if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet, or
(b) if 10 years have passed since the end of the calendar year in which the document came into existence.
(3) Subclause (2) (b) does not apply to a document that came into existence before the commencement of this clause.
(4) In this clause, a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet.’

23 Documents 41 and 88 are the subject of claim under this heading. I have had regard to the two statements of evidence provided by Ms de Castro Lopo.

24 Document 41 is described in the schedule of documents as ‘Document prepared by NSW Treasury’. Document 88 is described in the schedule of documents as ‘Letter from CSO to Commissioner for Stamp Duties’.

25 The Tribunal must not, in its public reasons reveal exempt matter. Section 55 provides:

‘55 Procedure for dealing with exempt matter
In determining a review application, the Tribunal:
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and
(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative.’

26 At hearing counsel for the Department noted that D41 on its face is a document prepared for submission to the Cabinet Subcommittee on Budget. As to D88 she noted that this document had been released in part to the applicant with the deletion of paragraphs 3, 4 and 5.

27 I will not reiterate here my recent observations on the scope and application of the Cabinet documents exemption made in another case involving the applicant: see Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282, esp at [57] and [85]-[89].

28 The Department submits that D41 belongs to category (1)(a), i.e. ‘a document that has been prepared for submission to Cabinet (whether or not it has been so submitted)’. In that regard it is noted that in cl 1 ‘a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet’: cl 1(4).

29 I am satisfied from the evidence and scrutiny of the document that D41 was prepared for submission to a Cabinet committee, known as the Cabinet Standing Committee on Budget. Accordingly the document is exempt.

30 In reaching this conclusion I have had regard to the issue raised in the Department’s submissions as to what connotation should be given to the words ‘prepared for submission to Cabinet’ in particular the word ‘for’. The submissions refer to Victorian case-law dealing with that State’s equivalent exemption (though, I should note, its precise terms are not identical) which points out that it is not necessary that the document actually be submitted and considered, or that it have as its only reason for preparation submission to Cabinet. I accept that cl 1(1)(a) in the NSW Act should be interpreted in the same way: see further Simos v Wilkins (15 May 1996, unreported, Dist Ct NSW (Cooper DCJ)).

31 As to D88, the submission is that it falls into category (1)(e), i.e. it is a document which ‘contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet’. The evidence for this submission is found in the confidential statement, and involves in turn an assertion, without any corroborating documentation or material, found in an email from an officer of another agency of government. In my view this is an insufficient basis to justify application of this exemption. The onus of proof lies on the agency, and, in my view, it has not been met: see FOI Act, s 61.

Business Affairs Exemption

32 This exemption is also relied upon in relation to Documents 1-40, and 42-87. Clause 7 provides:

‘7 Documents affecting business affairs
(1) A document is an exempt document:
(a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or
(b) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and
(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or
(c) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and
(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.
(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.’

33 Here the submission is that disclosure of the documents would adversely affect the ability of the CSO to offer clients confidentiality on the same basis as do other legal practitioners who might be retained by government agencies, for the reasons set out in the internal review decision of the agency dated 18 January 2005. I simply comment that the CSO is an agency bound by the FOI Act. It is sometimes the case that competitors in the same market will be differentially affected by the law depending on whether they belong to the public sector or the private sector. Public sector agencies are commonly subject to special obligations as to accountability not imposed on their private sector equivalents. Caution, I think, needs to be exercised in acceding to submissions from public sector agencies that they should be relieved of their public sector obligations, or treated more generously in regard to them as against the rest of the public sector, because they have private sector competitors not similarly bound.

34 As in my view it is beyond doubt that the legal professional privilege covers all of the relevant documents except for D81-84, I will confine my consideration of this exemption to D81-84.

35 These documents, as previously noted, simply record an entirely routine administrative aspect of a conveyancing transaction – the undertaking of certain title and similar searches. They do not in any sensible way bear on the ‘business’ or ‘professional’ affairs of the agency. If I am wrong in that regard, I do not think that their disclosure could, in any way, be said to give rise to an unreasonable adverse effect on those affairs, or involve any prejudice to future supply of information. There is no evidence from the agency before me that goes to these points.

Respondent’s Submissions

36 I have had regard to the respondent’s submissions. He refers to a variety of matters, such as the need to apply strictly the Lockhart categories, and to be cautious in adopting the view that a communication remains protected even though it includes non-legal policy or strategic advice. I have taken these concerns into account in reaching my conclusions. There are lengthy submissions on the business affairs exemption. As explained, I have not found it necessary to explore that subject in any detail on this occasion.

37 I have noted the submissions on the Cabinet documents exemption, and the applicant’s references to Premier’s Memorandums relating to the disclosure of information concerning government contracts.

38 As I have explained in other decisions, the Cabinet documents exemptions are categorical in nature, and do not admit of discretionary considerations to do with such matters as what might be ‘reasonable’ or ‘in the public interest’. As I see it, the applicant’s submissions are inviting the Tribunal to engage in that kind of assessment, which, in my view, is not permitted by the Cabinet documents exemption.

Orders
1. The application for review is allowed in part.
2. The respondent’s determination is set aside in relation to:
(a) Documents 81-84; and
(b) Document 88.
3. The Tribunal’s orders are to take effect 28 clear days after the publication of its decision.