the solution

Recent Cases: Commonwealth

Alpert and Secretary, Department of Defence [2020] AATA 1632 (3 June 2020)

Mr Alpert ("applicant")  sought review of an internal review decision made by the Department of Defence ("Department") to refuse access to a document on the basis that it was subject to legal professional privilege.  The Australian Information Commissioner ("IC") had exercised the discretion not to review the matter, so it was now before the Administrative Appeals Tribunal of Australia's ("Tribunal").

 

In the proceedings, the Department applied for an order to restrict the disclosure of the document to the applicant because of legal professional privilege.  The applicant argued the privilege was waived by the Department and procedural fairness and principles of natural justice required that the document should be made available to him.

 

Legal professional privilege

 

The document claimed to be protected by legal professional privilege under s 42 of the Freedom of Information Act 1982 (Cth) ("FOI Act") was an email requesting legal advice sent by an officer of the Department to the Office of Defence General Counsel, Defence Legal (Directorate).  The email was identified as ‘Sensitive: Legal’, as was the emailed reply from a Defence legal officer in the Directorate providing the legal advice.

 

The Tribunal assessed the following factors to determine whether s 42 applied to the document:

  • examination as to whether there was a lawyer-client relationship
  • whether the document in question was created for the dominant purpose of giving or receiving legal advice or for use in actual or anticipated litigation;
  • whether the advice was independent; and 
  • whether the advice was confidential.

The Tribunal held legal professional privilege applied to in-house counsel communications provided there is the necessary independence in the provision of legal services.  The Department’s in-house counsel was providing advice to an officer of the Department in their legal capacity.  Further, upon inspection of the document, it was clear that it was produced for the purpose of requesting and providing independent legal advice between lawyer and client.  It was subject to legal professional privilege.

 

Did the Department waive this privilege?

 

The Tribunal considered whether previous disclosure of the document to the IC waived privilege.  The Department said it maintained privilege as the document was provided to the IC as evidence.  The Department had also requested the IC not to share the document, including with the applicant. The Tribunal decided that these steps were consistent with maintaining legal professional privilege.  The privileged had not been waived.

 

HELD:

The Tribunal affirmed the Department's decision. 

 

Chief Executive Officer, Services Australia and Farrell [2020] AATA 2390 (21 July 2020)

Mr Farrell ("respondent"), an ABC journalist, applied under the Freedom of Information Act 1982 (Cth) ("FOI Act") to the Commonwealth Department of Human Services ("Department") for access to  ‘final decision notices to all applicants for Australian Victims of Terrorism Overseas payments since January 2014’ .  The Department refused the request on the basis that a practical refusal reason existed - that processing would substantially and unreasonably divert the resources of the Department from its other operations.

 

The respondent sought review of the decision by the Australian Information Commissioner ("IC").  The IC set aside the Department's decision, deciding instead that a ‘practical refusal reason does not exist’. 

 

The Department applied to the Administrative Appeals Tribunal ("Tribunal") for review of the IC decision.  

 

The Department’s capability to process the request

The Tribunal considered the Department to be a large, well resourced agency noting it had more than 28,000 employees.   It noted the Department is one of the largest FOI processors in the Commonwealth and for the financial year 2018-19, the Department had allocated the equivalent of 66.66 full time staff to process FOI requests.   

 

What does the phrase ‘other operations’ of the agency comprehend?

The Tribunal considered that if the work of the FOI team was not included in the assessment of the resources diverted, then the estimate of the resources diverted would be substantially reduced.  The Tribunal found that the respondent’s FOI request involved the diversion of 61.25 staff hours from the other operations of the Department. 

 

Does the processing substantially divert resources?

The Tribunal determined that there must be both a substantial AND unreasonable diversion of resources, and that these two elements cannot be looked at in isolation. 

The Tribunal was satisfied that in the context of s 24AA, "substantially" refers to a diversion of resources that is of substance, not a large diversion.  The Tribunal held that 61.25 hours of Departmental employee’s time was a diversion of substance and so met the threshold for being a substantial diversion of resources.

 

Does the processing unreasonably divert the resources?

The Tribunal acknowledged that the FOI Act is designed to promote disclosure and should be administered with a bias towards disclosure.  It noted that the diversion of agency resources at 61.25 hours, was not insignificant, but in the context of the number of employees in the Department and those whose role is to process FOI requests, the Tribunal found that the diversion was less significant than it would have been for a smaller agency.  Processing the claim was within the capacity of the agency.

 

HELD:

The Tribunal affirmed the IC decision.  While the request would substantially divert the resources of the agency from its other operations, the diversion was not unreasonable.