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Wednesday, May 24, 2006

FOI ADT Appeal Panel decision: a long drawn out defence battle, but why?

You have to be an “FOI wonk” to work your way through the discussion of legal professional privilege in this NSWADT Appeal Panel decision in yet another Flemington Markets sale case – Attorney General’s Department v Cianfrano (2006) NSWADTAP26 – but keep reading if you’re interested in the lengths some go to seek to protect innocuous documents from disclosure.

The original Tribunal decision upheld the agency determination that 84 documents sought attracted legal professional privilege but ruled that 5 were not exempt. The 5 documents were communications between the Crown Solicitor’s Office and third parties. The Tribunal said that these were merely documents of an administrative nature and did not qualify for privilege.

The Attorney General’s Department (perhaps nominally - the Appeal Panel case only concerned 4 of these documents held by the Crown Solicitor’s Office) appealed the decision on the basis that the Tribunal had erred in law in finding that the documents did not attract privilege.

The Appeal Panel found that the rejection of the claim because they were administrative records was wrong in law. However it decided that the Tribunal had not erred: communications between a lawyer and third parties who were not acting as agents for the client were not covered by privilege in any event. Interestingly the Appeal Panel indicated that some of the other documents found exempt by the Tribunal might not have been exempt on these grounds but as Mr. Cianfrano had not cross appealled this issue was not before the Panel.

There have been several cases about legal professional privilege recently providing useful guidance about “litigation privilege” and “advice privilege”, the alternative limbs of a privilege claim. These include the decision to reject a privilege claim where no lawyer-client relationship was established (NSW Court of Appeal in WorkCover Authority v Law Society of NSW (2006) NSWCA 84); and a finding that a PR statement drafted in the course of preparation for an appearance before a Royal Commission did not attract privilege (Federal Court of Australia in AWB Limited v Terrence Cole (2006) FCA571).

The Appeal Panel decision in Cianfrano includes a finding that the reference to legal professional privilege in the FOIA means common law privilege not client legal privilege as defined in the Evidence Act when "advice privilege" is under consideration. To that extent it is useful but can hardly be the reason why the AG’s/Crown Solicitor’s Office brought the appeal as both parties proceeded with the case on this basis.

You have to ask just why it was thought necessary to take this matter to the highest level of the ADT – I’m just hoping they don’t feel the need to take it to the Court of Appeal.

It is remarkable that somewhere in the bureaucracy decisions were made to refuse access, refuse access on internal review, argue unsuccessfully before the Tribunal and then argue unsuccessfully before the Appeal Panel that these documents were exempt: the documents consisted of two land title search requests forms; a letter and a Section 149 Planning Certificate from Strathfield Council, and a letter to Sydney Water requesting property information including a drainage diagram.

You can see why President O’Connor in the original ADT decision referred to these documents as administrative records.

What important interests were at stake here are hard to identify.

Expense wasn’t spared either – external counsel argued the case before the Appeal Panel.

Clarification of an important legal principle, preoccupation with precedent, or a publicly funded lark by lawyers with little consideration of the spirit and intent of the Act or the costs and benefits of the exercise?

I’ll leave it to you to draw your own conclusions.

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