17 December 2007
Key Points:
Commissioner of Taxation v Devereaux Holdings Pty Ltd [2007] FCA 821 - whether disclosure under the FOI Act constituted a waiver of privilege
On 29 May 2007, Justice Gyles in the Federal Court determined whether the disclosure of documents pursuant to a request under the Freedom of Information Act 1982 had led to a waiver of legal professional privilege in other documents that had been withheld from disclosure.
An FOI request had been made by Devereaux for various documents held by the Commissioner of Taxation. Eight volumes of documents were disclosed and exemptions were claimed for nine documents on the basis that those documents were subject to legal professional privilege.
Devereaux appealed to the Administrative Appeals Tribunal ("AAT") asserting that the documents that had been disclosed pursuant to the FOI request disclosed the substance of the legal advice contained in the documents in relation to which exemptions for privilege had been claimed. It was asserted that the disclosure of the substance of the advice in the documents that had been produced constituted a waiver of privilege in relation to the underlying advices for which exemptions had been claimed on the basis of legal professional privilege. The AAT agreed and ordered disclosure of the documents in relation to which privilege had been claimed. The Commissioner appealed to the Federal Court.
The Federal Court found that the AAT had fallen into error on a question of law in not considering whether such disclosure as took place could be regarded as inconsistent with the maintenance of the confidentiality of the underlying advices (being the test for waiver set out by the High Court in Mann v Carnell (1999) 201 CLR 1). Justice Gyles concluded that he could not see any basis upon which it could be said that the production of the documents relied upon for waiver pursuant to an FOI request could be said to amount to conduct inconsistent with the maintenance of the confidentiality of the underlying advices.
In this context it was relevant that the documents relied upon were not produced voluntarily but pursuant to a compulsory process under the FOI Act. Furthermore, the portions of the documents that revealed the substance of the underlying advices were only disclosed inadvertently. In addition the disclosure was not inconsistent with the maintenance of confidentiality in the underlying advices because the disclosure had not been made to prove a point or in advance of a particular argument (the suggestion being that if you reveal the substance of your advice for the purpose of advancing a particular position, it is inconsistent to then assert that the advice is confidential and no one can review it).
The Court held that as there was only one reasonable conclusion it was not necessary to remit the matter to the AAT and made a decision refusing access to the withheld documents.
Bienstein v Attorney General [2007] FCA 1174 - transfer of an FOI request*
On 8 August 2007, Justice Gray in the Federal Court set aside the Administrative Appeals Tribunal ("AAT") decision and held that as the 30 day time period in section 15 of the Freedom of Information Act 1982 (Cth) had now passed, a deemed decision had been made and could now be reviewed by the AAT. This case emphasises the obligation to search your own records before transferring a request.
Ms Bienstein made two freedom of information requests: one to the Attorney-General and the other to the Minister for Justice and Customs. Both the Attorney-General and the Minister transferred the requests to the Attorney-General’s Department under section 16 of the Freedom of Information Act 1982 (Cth), which allows a transfer if the document is not in the possession of that agency but is, to the knowledge of that agency, in the possession of another agency; or the subject-matter of the document is more closely connected with the functions of another agency than with those of the agency to which the request is made.
The Attorney-General and the Minister argued that the transfer was valid because the subject-matter of the documents was more closely connected with the Department’s functions. Once the transfer was made, they said, their only other legal obligation was to inform Ms Bienstein of the transfer.
The Federal Court addressed two issues: whether the transfer was valid and whether a transfer can remove any obligation from the original agency for searching their documents.
The Court looked to the to the legislative purpose and context provided by the other provisions of the Act in interpreting section 16 of the Act. The Court found that the transfer was not valid as no attempt had been made to ascertain whether the documents were in the possession of the Attorney-General or the Minister before the transfer was made.
This decision is the subject of a more detailed article in the October 2007 edition of Government Insights.
Re Diane Thompson and Secretary, Department of Education, Science and Training [2007] AATA 1801 - exemptions for documents the disclosure of which would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency, documents that are subject to legal professional privilege and documents affecting personal privacy.
On 25 September 2007, the Administrative Appeals Tribunal ("AAT") affirmed the decision under review to wholly exempt three documents and confirmed confidentiality orders under section 64(1) of the Freedom of Information Act 1982.
The National Investigation Unit of the Department of Science and Training ("NIU") conducted an investigation into a complaint by Ms Thompson, who was a former employee of Murrays Coaches, that Murrays Coaches had fraudulently obtained Commonwealth incentive payments, under the regulatory scheme involved in the creation of apprenticeships between employers and apprentices or trainees. Following this formal investigation, the NIU provided a brief of evidence to the Commonwealth Director of Public Prosecutions ("CDPP"), but the CDPP considered that there was insufficient evidence to obtain a conviction against any staff of Murrays Coaches and did not pursue prosecution. Ms Thompson sought access to documents in relation to this investigation and referral to the CDPP . The Department of Science and Training provided access to 237 pages, but refused access (affirmed on internal review) to three documents. The three documents were a transcript of interview with Mr Friske (the second respondent) an employee of Murrays Coaches who was under investigation; a cover sheet and summary of witness statements provided by the Department to the CDPP in the brief of evidence; and a letter from the CDPP to the Department.
The AAT held that the interview transcript was exempt under section 40(1)(d) of the Act, which exempts documents the disclosure of which would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency, on the basis that, if there was a question about the security of sensitive information provided to the Department then participants in the apprenticeship scheme may be circumspect in providing the information that the Department uses to monitor the scheme. The AAT also accepted that the document should be exempt under section 41(1), which relates to the exemption of certain documents affecting personal privacy, as the information could defame Mr Friske. In this context the AAT also considered Mr Friske's presumption of innocence as the CDPP had decided not to prosecute him. Mr Friske also claimed that he feared his personal safety if the information was released. The AAT rejected the claim in respect of Mr Friske's concerns as to his personal safety as the Tribunal was not satisfied on the basis of the evidence before it that the test in Centrelink v Dykstra [2002] FCA 1442 (that the risk of harm to the life or physical safety of Mr Friske was reasonable as distinct from something that was irrational, absurd or ridiculous) had been met.
The AAT held that the cover sheet and summary of witness statements were also exempt under sections 41(1) and 40(1)(d). Further, it held that the dominant purpose of the documents was the provision of legal advice with an ultimate aim of seeking prosecution. The AAT noted that there had been no waiver of privilege nor had the documents been inadvertently disclosed and that accordingly, they were exempt under section 42, which exempts from disclosure documents that are subject to legal professional privilege.
The AAT held, in relation to the CDPP brief of evidence that there was likely to be a substantial adverse effect on operations to both the Department and the CDPP. It agreed with the argument that disclosure would affect the willingness of lawyers at the CDPP to provide frank and candid written advice, which would be detrimental to the operations of the CDPP and that a consequence of that disadvantage would be an elongation of processes and inefficiency for the Department and its investigations area. Accordingly the AAT determined that the brief should be exempt under section 40(1)(d). The AAT further noted that this document was, in-line with the cover sheet and summary of witness statements, also exempt under section 42 (legal professional privilege).
Bell and Commonwealth Scientific and Research Organisation (CSIRO)[2007] AATA 1569 - documents in respect of CSIRO's commercial activities.
On 20 July 2007 the Administrative Appeals Tribunal ("AAT") (Deputy President Forgie) held in relation to eight documents, to which Mr Bell sought access, that the exemptions over all the documents except one should be maintained. The Commonwealth Scientific and Research Organisation ("CSIRO") claimed that the documents were documents in respect of its commercial affairs. This exemption was claimed under section 7 and Part II of Schedule 2 of the Freedom of Information Act 1982.
Section 7(2) of the Act exempts certain agencies from the operation of the Act. Under Part II of Schedule 2 of the Act the CSIRO is such an agency in relation to documents in respect of its commercial activities.
The AAT determined that the content of the eight documents indicated that each was received or brought into existence both in the course of and for the purposes of the CSIRO's commercial activities. It held that the content of the documents related to areas of CSIRO's activities where it was competing with non-government agencies. The AAT made some interesting observations in relation to whether the documents were in respect of the CSIRO's commercial activities and held that what was important was the existence of a pattern of research with a commercial intent. A lack of financial return on such research or activity was not a fatal factor. The AAT also noted that an activity that has the intention of leading to a commercial activity may itself be a commercial activity; equally a document in relation to a commercial activity that has ceased will still maintain that characteristic.
The AAT considered the Federal Court case of Australian Broadcasting Corporation v The University of Technology Sydney (2006) 154 FCR 209 ("ABC") and expressed some concerns at the interpretation to "commercial affairs" within the context of a Schedule 2 exempt agency as discussed in that case. The AAT held that ABC required it to decide whether the documents could be described as documents in relation to documents in respect of commercial affairs. The AAT did not accept that this interpretation was necessarily the preferable or correct one, but in an abundance of caution applied it to reach the same result in this instance.
For further information, please contact Alice Linacre and Caroline Bush.
