Sandra Zacek v Australian Postal Corporation
[2006] AATA 124(Decision by: G.D. Friedman, Senior Member) Tribunal:
Member:
G.D. Friedman, Senior Member
Subject References:
Freedom of Information
documents relating to the applicant
whether documents exempt from disclosure
legal professional privilege
whether documents can be found or do not exist
sufficiency of searches
constructive possession
Legislative References:
Freedom of Information Act 1982 - s 4(1); 11(1); 24A; 42
Case References:
Beesley v Australian Federal Police - (2001) FCA 836
Chu v Telstra Corporation Limited - (2005) FCA 1730
Commissioner of Australian Federal Police v Propend Finance Pty Ltd - (1997) HCA 3
Commonwealth of Australia v Dutton - (2000) 102 FCR 168
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia - (1999) 201 CLR 49
Re Langer and Telstra Corporation Limited - (2002) AATA 341
Re Viewcross Services Pty Ltd and Telstra Corporation Limited - (2003) AATA 1025
Re Zacek and Australian Postal Corporation - (2002) AATA 473
Waterford v The Commonwealth of Australia - (1987) 163 CLR 54
Wentworth v DeMontfort - (1988) 15 NSWLR 348
Decision date: 15 February 2006
Melbourne
Decision by:
G.D. Friedman, Senior Member
REASONS FOR DECISION
1. Ms Zacek was an employee of the respondent until December 1996. On 14 May 2000 she sought access to documents held by the respondent that contained references to her. The Tribunal considered the matter in its decision of 18 June 2002 ( Re Zacek and Australian Postal Corporation (2002) AATA 473). On 19 March 2004 Ms Zacek made a similar request (application number V2004/1053 ), specifying that her request included documents of Work Solutions Group (WSG), her rehabilitation provider. On 3 August 2004 Ms Zacek made a further FOI request (application number V2004/1174 ) seeking access to all relevant documents generated after her request dated 19 March 2004. On 15 September 2004 Ms Zacek applied to the Tribunal for review of a decision by the respondent refusing access to certain documents under the Freedom of Information Act 1982 (the FOI Act) on the grounds of legal professional privilege. Ms Zacek also claimed that the respondent had not made adequate searches for relevant documents.
2. During the proceedings the respondent released to Ms Zacek a number of documents in respect of application number V2004/1053 that the respondent had claimed were exempt in the original decision and on internal review. At the date of the hearing ten documents (documents 3b, 5, 7, 8a, 9, 13, 14, 15, 16 and 17) were claimed by the respondent to be exempt from disclosure. In respect of application number V2004/1174 four documents (documents 1, 2, 3 and 4) were claimed by the respondent to be exempt from disclosure.
3. The issues before the Tribunal are whether the documents to which access has been refused should be released, and whether further documents could not be found or do not exist.
SHOULD THE EXEMPT DOCUMENTS BE RELEASED?
4. In affidavits filed with the Tribunal Mr A. Caprackas, the respondent's National Freedom of Information Officer, stated that Mr M. Batskos, Executive Director of FOI Solutions, is a legally-qualified solicitor who represents the respondent in FOI matters and has provided legal advice in the applications lodged by Ms Zacek. He said that such advice and recommendations contained in the exempt documents were crucial elements in the formulation of the respondent's responses to the FOI requests. Mr Caprackas noted that draft letters forwarded to Mr Batskos and draft responses were of a provisional nature and did not necessarily reflect the respondent's final views or opinions as set out in the ultimate responses.
5. Mr Caprackas told the Tribunal that those of the exempt documents that were created by Ms M. Cameron, corporate lawyer of the respondent, concern the seeking of instructions from the respondent's staff, the requesting of legal assistance from Mr Batskos, and providing further instructions. Mr Caprackas said that those of the exempt documents that were created by him are draft decision letters to Ms Zacek for which legal advice was sought from Mr Batskos.
6. Section 42(1) of the FOI Act provides:
A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege .
Decisions of the Federal Court and the Tribunal show that reference to legal professional privilege in s 42 is reference to legal professional privilege at common law ( Commonwealth of Australia v Dutton (2000) 102 FCR 168). In Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 the High Court held that legal professional privilege protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services in legal proceedings. The privilege attaches to confidential professional communications between government agencies and their salaried legal officers ( Waterford v The Commonwealth of Australia (1987) 163 CLR 54), and applies to the time a document is brought into existence, and also applies to draft documents prepared by a lawyer for use in proceedings ( Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) HCA 3).
7. On all the material before it the Tribunal is satisfied that at relevant times a solicitor/client relationship has existed between the respondent and Mr Batskos and between the respondent and Ms Cameron.
IN APPLICATION NUMBER V2004/1053
8. Document 3b is a draft letter dated 16 January 2003 prepared by Mr Batskos and sent via email to the respondent. It is a communication for the dominant purpose of providing legal advice or assistance in the form of a draft letter. It is exempt from disclosure under s 42(1) of the FOI Act.
9. Document 5 is a note dated 18 December 2002 by Ms Cameron, of a meeting she attended in her capacity as legal adviser to the respondent, with a view to obtaining further instructions about matters raised by Ms Zacek. The document is a confidential communication between officers of the respondent and their legal adviser for the dominant purpose of the provision of legal services including preparing a response to Ms Zacek. It is exempt from disclosure under s 42(1) of the FOI Act.
10. Document 7 is a letter dated 28 October 2002 by Mr Batskos requesting further instructions from the respondent and providing legal advice to the respondent. It is in response to Document 8a which is a letter dated 24 October 2002 from the respondent to Mr Batskos seeking legal assistance as part of his ongoing involvement in dealings between the respondent and Ms Zacek. The documents are communications for the dominant purpose of the provision of legal advice or assistance to the respondent by Mr Batskos. Both documents are exempt from disclosure under s 42(1) of the FOI Act.
11. Document 9 is a series of emails dated 11 and 18 September 2002 between Ms Cameron and another officer of the respondent seeking and providing instructions about matters raised by Ms Zacek. They are confidential communications between an officer and her legal adviser for the dominant purpose of the provision of legal services by an employee of a government agency. The document is exempt from disclosure under s 42(1) of the FOI Act.
12. Document 13 is a letter dated 24 May 2001 sent by Mr Batskos to the respondent seeking further instructions about matters raised by Ms Zacek in the Tribunal proceedings existing at that time. It is a confidential communication between the respondent and its legal adviser for the dominant purpose of obtaining legal services during an existing proceeding. It is exempt from disclosure under s 42(1) of the FOI Act.
13. Documents 14, 15 and 16 are draft affidavits prepared by Mr Batskos in 2001 for use by officers of the respondent in proceedings in existence at the time. They are communications between the respondent and its legal adviser for the dominant purpose of use in existing proceedings. Those documents are exempt from disclosure under s 42(1) of the FOI Act.
14. Document 17 is a memorandum of legal advice dated 5 July 2002 from Mr Batskos to the respondent, and is headed Privileged and Confidential . It is a communication for the dominant purpose of providing legal advice or assistance to the respondent. It is exempt from disclosure under s 42(1) of the FOI Act.
IN APPLICATION NUMBER V2004/1174
15. Document 1 is an email dated 29 April 2004 from Mr Caprackas to Mr Batskos enclosing a draft decision ( Document 2 ) and seeking legal advice and assistance. Document 3 is an email dated 2 May 2004 from Mr Batskos, in reply and enclosing suggested amendments to the draft decision ( Document 4 ). The documents are communications for the dominant purpose of seeking and providing legal advice or legal assistance. All four documents are exempt from disclosure under s 42(1) of the FOI Act.
COULD FURTHER DOCUMENTS BE FOUND OR DO NOT EXIST?
16. Mr Caprackas stated that the respondent has taken all reasonable steps, including detailed searches, to find documents the subject of Ms Zacek's requests for access, and is satisfied that no other documents exist or, if they exist they cannot be located and are not in the constructive possession of the respondent. Mr Caprackas said that this includes the existence of a file note recording a conversation Ms Zacek claims took place between herself and an employee of WSG on 9 May 1996. He said that there is no obligation on the respondent to provide further information to assist in the interpretation of documents released to Ms Zacek, and that documents sought after the commencement of these proceedings are not within the scope of the review.
17. Mr Caprackas described the steps taken by him and other officers of the respondent to conduct searches. He said that he contacted WSG, the respondent's Injury Prevention and Management Unit (Vic/Tas) and the Legal Services Group, a former manager of Ms Zacek and other relevant departments of the respondent, including the Accounts Payable section of the Shared Services Division. He told the Tribunal that the searches were exhaustive, and after collating all relevant files and carrying out a systematic search he was satisfied that no other relevant documents existed. He also said that the respondent has received an ever-increasing number of requests for access under the FOI Act and its commitments in this area have grown considerably.
18. Section 24A of the FOI Act provides:
An agency or Minister may refuse a request for access to a document if:
- (a)
- all reasonable steps have been taken to find the document; and
- (b)
- the agency or Minister is satisfied that the document:
- (i)
- is in the agency's or Minister's possession but cannot be found;or
- (ii)
- does not exist .
The FOI Act applies to a document of an agency (s 11(1)). Section 4(1) defines document of an agency as a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency . In Beesley v Australian Federal Police (2001) FCA 836 the Federal Court held that the question of possession goes beyond physical custody or possession, but extends to a concept of constructive possession, which is a right or power to deal with the document or an immediate right to possession or control of the document.
19. In relation to any file note dated 9 May 1996 created by WSG (a contractor providing services for the respondent until June or July 1996), the Tribunal concludes that such a note, even if it existed, is not in the constructive possession of the respondent, which has no right to require the delivery of the document ( Wentworth v DeMontfort (1988) 15 NSWLR 348). The Tribunal is satisfied that any documents for the period before 25 May 2000 (which was the date of Ms Zacek's first FOI request), or any documents the existence of which were alleged by Ms Zacek after the commencement of the proceedings, are not within the scope of the review.
20. In respect of the sufficiency of searches conducted by the respondent, the Tribunal notes that in Chu v Telstra Corporation Limited (2005) FCA 1730 the Federal Court held that the Tribunal needs to be properly satisfied that the agency has done all that could reasonably be required of it to find the documents sought. Finn J stated at paragraph 35:
...
A person requesting access to a document that has been in that agency's or Minister's possession should only be able to be denied on the s 24A ground when the agency (or the Minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question . Taking the steps necessary to do this may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes . Section 24A is not meant to be a refuge for the disordered or disorganised .
21. In Re Viewcross Services Pty Ltd and Telstra Corporation Limited (2003) AATA 1025 the Tribunal held that the steps involved in finding a document should take into account considerations such as the subject matter of the documents; the documents one would expect to exist and their expected location; the steps already taken to locate relevant documents; whether there were persons within the agency who had not been consulted as to the possible existence of further documents; the age of the documents; file management systems and the practice of destruction or removal of documents; the willingness of the applicant to provide further information; the willingness of the agency to conduct further searches; the purpose for which the request for documents was made; and the commitments of the agency.
22. The Tribunal must then determine whether it is satisfied that the document is in the possession of the respondent and cannot be found or does not exist ( Re Langer and Telstra Corporation Limited (2002) AATA 341).
23. In the matter under review the Tribunal accepts the evidence from Mr Caprackas: that Ms Zacek told the respondent that she did not seek access to any document that she already received; that Ms Zacek cannot raise matters that had been dealt with in her earlier proceeding; that the subject matter and expected location were identified considering the age of relevant documents; that searches were carried out after consultation with all relevant areas of the respondent and WSG, and all persons who would be expected to be familiar with relevant areas. The respondent is subject to the provisions of the Archives Act 1983 which require the destruction of certain account-related documents after a prescribed period. Ms Zacek indicated that she sought access to documents about events that she alleged to have occurred in relation to aspects of her employment. The respondent's commitments to FOI have also increased.
24. On balance the Tribunal is satisfied that the respondent has done all that could reasonably be required of it in the circumstances, to find the documents sought by Ms Zacek. In respect of the second requirement concerning whether documents exist or cannot be found, the Tribunal takes into account the comprehensive nature of the steps taken by the respondent to locate relevant documents and the provision of access to Ms Zacek of documents by the respondent and WSG. The Tribunal is satisfied that no other documents, within the scope of Ms Zacek's FOI requests for access, exist other than those released by the respondent or included in the exempt documents.
DECISION
25. (1) In application number V2004/1053 : The Tribunal varies the decision under review and grants access to documents released to the applicant in full or in part by the respondent during the proceedings.
(2) In application number V2004/1174 : The Tribunal affirms the decision under review.
(3) The Tribunal is satisfied that under s 24A of the Freedom of Information Act 1982 all reasonable steps have been taken to find the relevant documents, in addition to the exempt documents sought by the applicant, and that the relevant documents do not exist. Therefore, the Tribunal refuses the request for access to these documents.