Recent Cases: Commonwealth

Neilson and Secretary, Services Australia [2020] AATA 1435 (25 May 2020)

Mr Neilson ("applicant") applied to the Secretary of Services Australia ("respondent") for data relating to personal information (first time the service was used, birth year, gender, etc.) of people using the Medical Benefits Scheme and Pharmaceutical Benefits Scheme between 2012 and 2016.  

The respondent notified the applicant of the decision to refuse the request on the basis that: 

(1) all reasonable steps has been taken to locate the requested documents but they did not exist; and 

(2) s 17 of the Freedom of Information Act 1982 (Cth) ("FOI Act") did not apply as the respondent was unable to provide a written document containing the information in a discrete form, by the use of a computer that is ordinarily available to the respondent for retrieving or collating store information. 

The applicant sought the Information Commissioner's review of the respondent's decision to refuse the FOI request.  On review , the Information Commissioner affirmed the decision to refuse access.  The applicant applied to the Administrative Appeals Tribunal of Australia ("Tribunal") for a review of the decision. 

The issues for the Tribunal to consider were: (1) whether the respondent is required to produce a written document by the use of a computer or other equipment that is ordinarily available to it in response to the applicant's request, pursuant to s 17 of the FOI Act; and (2) if not, whether the Information Commissioner was justified in affirming the decision to refuse the request under s 24A(1) of the FOI Act on the grounds that the document does not exist. 

Section 17 (1)(c)(i) of the FOI Act

The information required by the applicant is not available in discrete form in written documents, and the use of a computer with existing programs ordinarily available could not extract the relevant data.  Rather, the request made by the applicant requires custom computer programs to be developed and tested to produce a report containing the information which he has requested. 

Whether the use of a computer or other equipment is ordinarily available

In the case of Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67 it was held that a new computer program would be necessary to transfer the information sought from the respondent's database into a discrete format and downloaded onto a CD/DVD.  The task would involve at least seven days' work by a computer programmer who wold have to write and test a new computer program, produce a report and convert it to an Excel spreadsheet for loading.  At the time of the hearing the work was expected to cost about $7,000. 

In considering authorities on comparable state acts the Court said that a computer would not be "ordinarily available" under the applicable legislation if a new computer program were required and that the relevant agency would not be obliged to provide the requested information. 

In the present case, the evidence was that the respondent could write the relevant computer program for a cost of less the $3,000.  However, the Tribunal notes that the applicant's contention was that is is not necessary to write a program and that his request could be satisfied in a simpler fashion and with existing software in an ordinary manner. 

The Tribunal accepted the respondent's argument that the documents sought are not "ordinarily available" because access to the documents would involve a departure from the agency's ordinary or usual conduct and operations.  Thus, the decision under review was affirmed but the Tribunal and the applicant's FOI request was refused. 

Leichsenring and Secretary, Department of Defence [2020] AATA 1157(4 May 2020)

Mr Leichsenring (“applicant”) applied to the Tribunal seeking access to documents found to be exempt by the Commissioner.

The applicant had been an officer in the Australian Army for many years.  The applicant sought to obtain a bonus under the Army Expansion, Rank Retention and Completion Bonus ("Scheme") but was deemed ineligible, so he subsequently submitted a claim for an Act of Grace payment.  In the course of considering the Act of Grace payment, the Department of Defence (“Department”) expressed an opinion that the Scheme’s criteria had been incorrectly applied and that the applicant should have been offered the bonus. 

The applicant submitted an application for a redress of grievance but it was not upheld by the Department on legal advice that the scheme was not to be interpreted broadly.

The applicant made a request for access to the request of legal advice and the legal advice obtained.

Access was denied pursuant to s 42 of the Freedom of Information Act 1982 (Cth) (“FOI Act”), this was upheld in an internal review.  

On review, the Australian Information Commissioner (“Commissioner”) decided that the advice was to be partly released on the grounds that some of it had already been disclosed in the determination that the application for a redress of grievance would not be upheld. 

This decision to refuse access was reviewed at the Australian Administrative Tribunal (“Tribunal”), which held that the documents attracted legal professional privilege.  However, the issue to be determined was whether the privilege in those documents had been waived. 

The Tribunal noted that the purpose for which confidential advice might be deployed is a consideration in determining whether that deployment destroys confidentiality.  

The question of partial waiver could arise sometimes if action is taken that is inconsistent with the maintenance of privilege in a document.  However, whatever view was taken to the question of waiver, the Tribunal held it was not appropriate to order that the whole advice be disclosed. 

Did the determination waive privilege?

The determination to to redress the grievance did not disclose any conclusion of the legal advice and did not waive privilege in the documents.  It merely referred to the fact that legal opinion had been sought and obtained.

Did the Department’s actions waive privilege in the request?

The mere disclosure of the existence of legal advice, or a request for advice, will not generally amount to waiver. 

The test is not whether a document’s disclosure would make another disclosable document more comprehensible; it is whether a document attracting privilege has been used in a fashion inconsistent with its confidentiality.

Did the second determination waive privilege?

The Tribunal accepted that a portion of the legal advice was disclosed in the determination, but this fact alone was insufficient to constitute an act that was inconsistent with maintaining the confidentiality of the advice.  The advice was disclosed for the purpose of reassuring the applicant that his contentions had been fully and independently assessed.  Other than disclosing one subheading in the advice, there was no disclosure of any other material in the determination and, without disclosure, it could not be said that the determination itself constituted an act that was inconsistent with the confidentiality in the material.

While the applicant argued that the 3 parts of the advice were so interconnected that they could not be separated so that legal privilege was waived in relation to all 3 parts, the Tribunal disagreed finding that any waiver of privilege said to have infected the third part could not be said to have infected the other parts.

Showing the document to a proposed third party

The Department showed the advice to the original decision maker.  The Tribunal held that this person was not a third party and showing him the advice was consistent with the intention to keep the document confidential to the departmental hierarchy.  The disclosure rounded off a full and diligent consideration of the appeal against his original decision and such diligent administrative practice was a significant factor in favour of preserving the legal professional privilege.