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Tuesday, July 11, 2006

NSWADT FOI decision on internal working documents

The NSW ADT in Howell v Macquarie University (2006) NSWADT 207 found that 13 documents recording communications between the University’s legal officers and other officers in connection with an investigation into an incident and associated matters including legal advice, were exempt on legal professional privilege grounds.

Most of the text of the decision involves an explanation of the background and a lot of consideration of whether another document was exempt as an internal working document, particularly the public interest factors for and against disclosure. The Tribunal was satisfied that a decision had been made on the matter the subject of the communication.

The University’s arguments about the public interest in non disclosure advance principles that the NSW Court of Appeal (WorkCover Authority v Law Society of NSW (2006) NSWCA 84) has expressed scepticism about – disclosure would impair the integrity and viability of decision making processes, because the document concerned deliberations at a high administrative level.

Judicial Member Wilson did not refer to the Court of Appeal decision but found that the evidence did not demonstrate that disclosure would have any adverse consequences on the University’s administrative processes, nor that it would inhibit in any way similar deliberations in the future.

Rather than finding the document was not exempt, the Tribunal referred a decision on it’s status back to the agency, urging the University to examine whether disclosure of the document would reveal a confidential source of information and/or could be the subject of legal professional privilege.

Some might suggest this was being overly helpful to the University as the two issues had not been argued as relevant to public interest considerations in the ADT.

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