Kay -v- Commissioner, Department of Corrective Services [2000] NSWADT 34

CITATION: Kay -v- Commissioner, Department of Corrective Services [2000] NSWADT 34 DIVISION: General Division APPLICANT Michael Kay PARTIES: RESPONDENT Commissioner, Department of Corrective Services FILE NUMBER: 993177 HEARING DATES: 17/11/99 SUBMISSIONS CLOSED: 11/17/1999 DATE OF DECISION: 03/31/2000

BEFORE: Hennessy N (Deputy President) APPLICATION: access to documents - Freedom of Information Act - access to documents MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [199] NSWADT 93 Esso Australia Resources Ltd -v- Commissioner of Taxation [1999] HCA 67;74 ALJR 339 Grant -v- Downs (1976) 135 CLR 674 Waterford -v- Commonwealth of Australia (1987) 163 CLR 54 CASES CITED: Proudfoot -v- Human Rights and Equal Opportunity Commission 28 ALD 734 Bulk Materials (Coal Handling) Services Pty Ltd -v- Coal and Allied Operations Pty Ltd (1988) 13 NSWLR 689 (A-G (NT) -v- Kearney (1985) 158 CLR 500 Attorney General for the Northern Territory -v- Maurice and others (1986) 161 CLR 475 Re Fallon Group Pty Ltd and Federal Commissioner of Taxation (1995) ATC 2134 Komacha -v- Orange City Council 58 FLR 452 APPLICANT REPRESENTATION: In person RESPONDENT N Yetzotis, solicitor ORDERS: 1. Matter stood over part heard to a date to be fixed by the Registry.; 2. Parties to file and serve any further statements or submissions on which they intend to rely within four weeks of this decision being handed down.

REASONS FOR DECISION Background 1 The applicant, Michael Kay, is a Corrections Officer with the Department of Corrective Services (the agency). He has been employed by the agency for 20 years. He set up his own web-site on the internet. During 1998 material on that site was the subject of two investigations by the agency. On 30 April 1999 Mr Kay applied under the Freedom of Information Act 1989 (FOI Act) for access to documents relating to those investigations. 2 These proceedings involve the refusal of the agency to provide access to four documents as well as two copies of Document 3. These documents are all memoranda from legal officers within the agency to other employees of the agency. The agency claims that they are exempt on the ground of legal professional privilege. An internal review dated 28 June 1999, affirmed the decision not to produce the documents. 3 Mr Kay was aggrieved by the fact that the agency had conducted two investigations into material on his personal web-site. He believes that those investigations and the subsequent directions were not justified. However he understands that these proceedings cannot address those wider issues. Jurisdiction 4 The Tribunal has the power to hear this matter under s 53(1) of the FOI Act. That section states that A person who is aggrieved by a determination made by an agency or Minister under or may apply to the Tribunal for a review of the determination. 5 In this case one of the determinations made under s 24 was to refuse access to certain documents. Relevant legislation 6 Under s 16 of the FOI Act, "A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act." Section 25(1)(a) states that: An agency may refuse access to a document: (a) if it is an exempt document 7 "Exempt documents" are defined in s 6 to include "a document referred to in any one or more of the provisions of Schedule 1." Clause 10 of Schedule 1 states that: 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. 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. 8 These provisions were discussed by this Tribunal decided in Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 (30 September 1999). I agree with the conclusion reached in relation to the effect of these provision which was summarised as follows at [14]: The general effect of these provisions is to impose a duty to make a determination on the giving or refusing of access as provided by s 24. Section 25(1) then provides the grounds on which access may be refused. Absent a decision to invoke one of these grounds, the decision-maker is obliged to give effect to the "legally enforceable right" of access conferred by s 16. In this context, in my opinion, the use of "may" in s 25(1) means that there is no mandatory duty to refuse access whenever one of the grounds for refusal is capable of being satisfied. In relation to paragraph (a), this means that a discretion is given whether or not to release a document which is found to be an exempt document. 9 The Tribunal in Mangoplah went on to find that since the administrator has a discretion to release an exempt document, the Tribunal has the same discretion. Neither party addressed this issue directly in their oral or written submissions. This issue is discussed further below at para 53. Issue 10 The initial issue to be decided in this case is whether the four documents in question and the two copies of one of those documents "contain matter that would be privileged from production in legal proceedings on the ground of legal professional privilege." Documents in dispute 11 The four documents in dispute are: Document 1: Memorandum signed by Denise Rushton on 28/4/98, also signed by Margaret Parmeter on 29/4/98 and also signed by Ron Woodham on 30/4/98. Document 2: Memorandum signed by Denise Rushton on 1/6/98, also signed by Deborah Dickenson on 1/6/98 and also signed by Ron Woodham on 5/6/98. Document 3: Memorandum signed by Denise Rushton on 15/9/98 and also signed by Ron Woodham on 16/9/98. Document 4: Memorandum signed by Deborah Dickenson on 25/2/99, also signed by Margaret Parmeter on 25/2/99 and also signed by Ron Woodham on 5/3/99. Mr Kay's submissions 12 Mr Kay made two written submissions to the Tribunal dated 22 October 1999 and 14 November 1999. He submitted that the four documents do not come within the definition of legal professional privilege. The following is a summary of the main points in those submissions: * no identifiable client and an independent legal adviser relationship has been established; * the client did not request the advice; * the advices relate to Departmental policies and procedures, not legal issues; * all of the functions the legal advisers performed in relation to this matter are "duties" not functions that would be performed by a legal professional in private practice; * the department's legal advisers did not act in a professional or independent manner (not independent because the same people who wrote the advices determined the FOI application); * litigation was never envisaged; * the investigations were unnecessary and unlawful therefore the communications generated cannot be privileged; in particular no law confers power on the Department to investigate any part of an employee's private life; * the client has impliedly waived the privilege by disclosing the documents to people who were conducting the investigation who were not legal professionals and the purpose was not to give them legal advice; * the Tribunal should exercise its discretion to release the documents because no harm would come from the release of the documents; and * as an employee of the Crown (an employee of the "client") he has special status and entitlements in law to view the documents. Agency's submissions 13 The agency's submissions can be briefly summarised as follows: * the Evidence Act 1995 (NSW) sets out the law in relation to legal professional privilege for the purposes of Clause 10 of Schedule 1 to the FOI Act - in particular the dominant purpose test should be applied; * the agency, through requests by its officers to the Professional Standards Branch engaged that Branch for the purpose of providing the agency with legal advice; * the client-solicitor relationship was ongoing as it related to the provision of relevant advice to the agency; * the privilege attaches to the two copies of Document 3 only to the degree that it is found to attach to the original document; * there is no evidence that the agency has waived its claim of legal professional privilege; * the legal advisers do not have the authority to waive the agency's privilege with respect to the documents; and * there is no direct evidence from the applicant pointing to an abuse of power by the administrator. Findings of fact 14 When these events occurred in 1998, the agency had a Code of Conduct. The Code was a policy document containing provisions with which it expected employees to comply. Principle 16 of the Code required staff to have official permission to make public comment about their work and the agency's activities. This Code was subsequently amended and Mr Kay received a copy of the new version, but not until after the second investigation was completed in October 1998. 15 In early 1998 Steve Tandy, Superintendent of the Security and Investigations Branch of the agency, was given information concerning Mr Kay's web-site. He wrote to the Professional Standards Branch on 23 February 1998 seeking advice about whether a video clip on the web-site depicting Mr Kay in uniform with an ex-prisoner "requires further attention." 16 Ms Denise Rushton, a former employee of the agency's Professional Standards Branch, wrote an advice in relation to this issue on 28 April 1998. The advice was adopted by Ms Parmeter, another solicitor within the Branch, and forwarded to Mr Woodham, Senior Assistant Commissioner. The advice was sent to Mr Woodham because he had the relevant delegation in relation to disciplinary matters. 17 Mr Woodham appointed Ian Downes to investigate the matter and, in the mean time, directed Mr Kay to "remove all references to the Department of Corrective Services and your work or position as Correctional Officer with the Department including any references to or images allegedly depicting any riot within a NSW Correctional Centre, from your Home Page." 18 On 1 June 1998, following the first investigation, Denise Rushton of the Professional Standards Branch prepared a further advice (Document 2). This advice was adopted by another solicitor in the Branch, Debbie Dickenson, and referred to Mr Woodham. Subsequently Mr Woodham directed that Mr Kay be counselled by the Governor, John Bromfield. 19 On 20 June 1998 Mr Kay asked Ms Lyn Chant, Manager Information Security and Fraud Control of the Audit Branch, to clarify the direction Mr Woodham had given him about what he could put on his web site. 20 On 28 July 1998, Ms Chant referred Mr Kay's query to the Professional Standards Branch for advice. An advice was prepared by Denise Rushton on 15 September 1993 (Document 3). Again, this advice was adopted by Deborah Dickenson and referred to Mr Woodham who directed that a further investigation be carried out. 21 Mr Alan Chislom conducted the second investigation which included consideration of whether Mr Kay had breached the direction given to him by Mr Woodham. 22 The final document over which an exemption was claimed was an advice from Deborah Dickenson, adopted by Margaret Parmeter, dated 25 February 1999 (Document 4). This document was prepared following the second investigation. 23 When legal officers prepare advices, such as Documents 1-4, they enclose a covering letter advising the recipient that the advice is confidential. They also stamp the document "Private and Confidential" More recently they have started using a stamp which says "This advice is confidential and must not be shown to any other person without prior approval of the Professional Standards Unit." 24 Advices are sometimes forwarded to other officers for a particular purpose. For example, Governor Bromfield was given a copy of Document 2 when he was asked to counsel Mr Kay. The letter from Denise Rushton dated 9 June 1999, accompanying that advice, stated that "This document and the opinions stated therein should be kept strictly confidential." 25 Mr Chisolm received copies of legal advices after he was asked to conduct the second investigation. Again, the letter to him from Denise Rushton dated 15 September 1998 contains the following words: "Please note that the advices provided to you are strictly confidential and may be subject to a claim for legal professional privilege. They would not be disclosed to any third party." 26 In oral evidence Mr Parmeter was unable to be specific about all the people who received copies of the relevant documents. She said that Mr Tandy and Mr Chant "would not have got copies of the advice." Ms Dickenson was not able to say whether Ms Chant had received a response to her referral. 27 Although Mr Kay was under the impression that both investigations were conducted pursuant to the Public Sector Management Act 1998 or the Public Sector Management (General) Regulation 1996, this was not the case. Mr Kay formed this view because he was given copies of the Disciplinary Interview Guidelines. In fact, the investigations were being conducted to determine whether or not to lay formal charges under that legislation. 28 Ms Parmeter and MsDickenson are both employed as lawyers in the Professional Standards Branch of the Legal Services Division of the agency. During 1998, both had current practicing certificates. Their role was to provide advice in relation to employment matters including issues arising under the Public Sector Management Act 1988 and the Anti-Discrimination Act 1977. 29 As legal officers Ms Parmeter and Ms Dickenson were free to express their own legal opinion. Generally, the process involved in preparing a legal advice was that a request for advice was allocated to a particular officer who prepared a written advice. That advice was then passed on to another legal officer, for a second opinion. The second officer could either express a different opinion or adopt the first officer's opinion. The advice would then be referred to the relevant decision maker. Definition of legal professional privilege 30 As the elements of "legal professional privilege" are not set out in the legislation, it is necessary to decide the meaning of that term. This Tribunal has considered whether its meaning should be governed by the common law or the Evidence Act 1995 (NSW) (See Mangoplah Pastoral Co Pty Ltd v Great Southern Energy 1999 NSWADT 93 at[20]-[29].) Its conclusion, prior to the High Court's decision in Esso Australia Resources Ltd v Commissioner of Taxation ([1999] HCA 67; 74 ALJR 339 was that it was governed by the Evidence Act 1995. Even after the Esso Case the question has not been finally resolved because that case was not concerned with legal professional privilege in the context of an FOI application. 31 It is not necessary for me to reach a conclusion as to whether the common law or the Evidence Act 1995 applies to legal professional privilege under the FOI Act. In the Esso Case, the High Court changed the common law test of legal professional privilege from a sole purpose test to a dominant purpose test thereby making it consistent with the test in the Evidence Act 1995. The majority of the Court preferred this test because, among other reasons, it is more consistent with the description of the relevant privilege in sections 118 and 119 of the Evidence Act 1995 (Cth) and its counterpart in NSW and with other common law jurisdictions. 32 The leading majority in Esso (Gleeson CJ, Gaudron and Gummow JJ) (at [46]) quoted and endorsed the statement of Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677 in relation to the definition of legal professional privilege: Having considered the decisions, the writings and the various aspects of the public interest which claim attention, I have come to the conclusion that the Court should state the relevant principle as follows: 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." Legal professional privilege in relation to government agencies 33 The High Court considered in Waterford v Commonwealth of Australia (1987) 163 CLR 54 whether legal advice given by lawyers employed by a government agency were protected by legal professional privilege. The majority of the High Court considered (at p 62) that: In our opinion. . . . there is no reason to place legal officers in government employment outside the bounds of legal professional privilege. The proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser. . . . To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment. 34 Whether or not the relationship of solicitor and client exists is a question of fact. In Phipson on Evidence (14th ed) the point is made that: Neither a formal retainer nor the payment of fees, is necessary to constitute the relationship of solicitor and client; it is enough if the adviser is in any way consulted in his professional character. (at 20-16) 35 The relationship of solicitor and client may be more difficult to establish in relation to in house lawyers. In Proudfoot v Human Rights and Equal Opportunity Commission 28 ALD 734 the Administrative Appeals Tribunal (AAT) held that legal professional privilege did not attach to certain documents. Mr Proudfoot was seeking access, pursuant to the Freedom of Information Act 1982(Cth) to documents held by the Human Rights and Equal Opportunity Commission (HREOC). One of these documents was a memorandum from a solicitor employed by HREOC in which she provided advice in relation to a legal matter referred to her. The AAT held that even though the memorandum contained legal advice and was created for the sole purpose of giving that advice, it was not provided in the course of a relationship of solicitor and client. The facts relied on to support this conclusion were that the advice was not produced in response to specific instructions and the client (the Sex Discrimination Commissioner) had acted on the matter without waiting to receive the advice. Communication must be confidential 36 To be protected by legal professional privilege the communication must be a confidential. Heydon, Cross on Evidence 6th ed par [25255] states that: If the communication is passed to a person with a common interest and is passed in circumstances in which that person would be subject to a duty to maintain its confidentiality, the doctrine is not lost (e.g. Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd (1988) 13 NSWLR 689) 37 In other words, any disclosure of the communication must have been made in circumstances which do not detract from the confidential nature of the communications. Summary of the elements of legal professional privilege 38 Subject to the fact that the High Court has changed the common law test from the sole purpose test to the dominant purpose test, I agree with the summary of the law set out in Re Proudfoot and Human Rights and Equal Opportunity Commission (1992) 28 ALD 734 at 738: * legal advice given by a qualified lawyer employed by the government can be privileged, at least where the giver of the advice holds a current practising certificate; * for privilege to attach, the legal adviser must be acting in her or his capacity as a professional legal adviser. This means that the advice must be given pursuant to a relationship of lawyer and client. Such a relationship must exist, and the advice must be given in the course of that relationship; * a corollary of this is that the circumstances in which the advice is given must be attended by the necessary degree of independence. Thus, if for instance an advice prepared subject to direction as to its contents or conclusions by a person who was not a lawyer would not be privileged; * the document must be created for the sole purpose of giving legal advice; and * the advice must be confidential. Application of law to the four documents 39 I am satisfied that legal professional privilege attaches to each of the four documents under consideration in this case and the two copies of Document 3. 40 Firstly, the legal advice was given by qualified lawyers with current practising certificates. 41 Secondly, the legal advisers were acting in that capacity when giving the advice. Mr Kay submitted that because the content of the advice concerned alleged breaches of an internal Code of Conduct and not provisions under the Public Sector Management Act 1988 or Regulations they were not "legal" advices. He also argued that the advice related to their duties as employees, not to functions that would be performed by a legal professional in private practice. I do not accept these submissions. The regulation of the conduct of employees by an employer is a legal issue, whether or not action is taken pursuant to legislation, Codes of Conduct or otherwise. In addition, while government lawyers are employees of the agency they are nevertheless providing legal advice that is analogous to advice that would be provided by a private legal adviser. 42 The advices were given pursuant to a relationship of solicitor and client. The solicitors employed in the 0Professional Standards Branch were the legal advisers. They had an ongoing relationship with the agency to provide relevant, independent legal advice. The fact that Mr Woodham did not personally request the advices is immaterial. The requests for advice were generated from other officers when matters requiring legal advice came to their attention. Solicitors employed by the agency in the Professional Standards Branch have an ongoing responsibility to provide legal advice to those in the agency with the relevant decision making capacity. This case can be distinguished from the situation in Proudfoot where the client (the Sex Discrimination Commissioner) made a decision before receiving the advice. 43 Mr Kay's view that the investigations were unnecessary is not relevant to the question of whether the advices are privileged. 44 Thirdly, the advices were prepared and given independently. The legal officers concerned were not subject to direction as to the contents of those advices by a person who was not a lawyer. The fact that the same people may also have provided advice in relation to the FOI application does not compromise the independent nature of the legal advice contained in the four documents. 45 Fourthly, I have read the advices and I am satisfied that they were created for the dominant purpose of giving legal advice. It is not necessary for the communication to arise as a result of anticipated litigation. It is sufficient that the communication arises as a result of a client seeking or a lawyer providing legal advice. Each of the four documents provides factual information, raises issues of concern which have legal implications and makes recommendations. 46 Finally, the advices were kept confidential. They were distributed to people within the agency who required background information to conduct the investigations or who had a need or an interest in the content of those advices. The Branch's intention in distributing those advices is evidenced by the confidential message that was stamped on them prior to distribution. 47 Mr Kay submitted that the documents were not privileged because they were unlawful or were created for the purpose of committing a crime or fraud. (A-G (NT) v Kearney (1985) 158 CLR 500. 48 There was no evidence whatsoever to support this allegation and I do not accept it. 49 Finally, Mr Kay submitted that even if the documents were privileged, that privilege has been waived. Legal professional privilege can be waived by the client. Waiver may be implied where the client's conduct makes it unfair or misleading to maintain the privilege (Attorney General for the Northern Territory v Maurice and others (1986) 161 CLR 475). 50 The fact that copies of some of the advices were given to Governor Bromfield and Mr Chisolm is not sufficient evidence to establish that the privilege has been impliedly waived. Documents were only sent to officers within the agency for the specific purpose of assisting those officers in relation to their tasks or decisions. 51 I have concluded that the four documents in dispute are protected by legal professional privilege. That privilege also applies to the two copies of Document 3. In Re Fallon Group Pty Ltd and Federal Commissioner of Taxation (1995) ATC 2134 at 2142 Mr Katz as he then was quotes Komacha v Orange City Council 58 FLR 452 at 459: The privilege attaching to a document will be accorded to copies made of it, provided confidentiality is maintained. If for example counsel's advice is circulated among officers of a corporation obtaining the advice, then privilege is preserved, whether the circulation is of the original or of copies." 52 I am satisfied that confidentiality was maintained in relation to the copies of the advices because the circulation of those advices was extremely limited and they were stamped with a confidentiality message. 53 On the basis of this reasoning, I find that each of the four documents and the two copies of document 3 are exempt documents within the meaning of that term in Clause 10 of Schedule 1 to the FOI Act. Override discretion 54 Having found that the documents and the copies are protected by legal professional privilege, the next issue is whether the Tribunal has a discretion to disclose the documents in any event, and, if so, whether it should do so. As these issues were not addressed in any detail at the hearing, I propose to adjourn the matter to enable the parties to adduce evidence and make submissions on these matters. 55 Consequently the matter is stood over, part heard, to a date to be fixed by the Registrar. I direct that each party file and serve any further statements or submissions in relation to this issue within 4 weeks of the decision being handed down. 56 The parties should be aware that the Tribunal made a decision relevant to these issues in Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93.

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