‘AD6’ and Department of Environment, Land, Water and Planning (Freedom of Information) [2019] VICmr 33 (23 May 2019)

All references to legislation in this document are to the Freedom of Information Act 1982 (Vic) (FOI Act) unless otherwise stated.

Notice of Decision

I have conducted a review under section 49F of the Agency’s decision to refuse access to documents requested by the Applicant under the FOI Act.

My decision on the Applicant’s request differs in that I have decided to release additional documents to the Applicant.

The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

My reasons for decision follow.

Joanne Kummrow

Public Access Deputy Commissioner

23 May 2019

Reasons for Decision

Background to review

1. The Applicant made a request to the Agency, via a legal representative, for access to the following documents:
   1. All documents (whether existing in electronic or hard copy form) comprising our client’s complete Human Resources/personnel file;
   2. Copies of all witness statements, interview notes, investigations reports, running logs, filenotes, correspondence and/or emails pertaining to any investigation (and the outcome of any such investigation) undertaken by or at the request of the Department of Environment, Land, Water and Planning or its predecessors or successors in title (“the Department”) of the cause or circumstances leading to the development of any injury sustained by [named Applicant] in the course of her employment with the Department;
   3. Copies of any document passing between the Department, WorkSafe Victoria and/or the Department’s WorkCover insurer pertaining to [named Applicant];
   4. Any document (whether existing in electronic or hard copy form) disclosing any policy of the Department with respect to the management of workload, stress, or welfare of Department employees employed as [position title] during the period [date] to date.
   5. Any document generated or received by the Department pertaining to any attendance upon or contact with [named Applicant] for the purposes of the management of [pronoun] welfare and/or the provision of counselling pursuant to any Employment Assistance Program (EAP) or similar initiative.
2. The Applicant later clarified the request, to exclude the following documents from the scope of the FOI request:

1. 1. records of salary
   2. copies of any correspondence passing between the Department and the WorkCover insurer that post-dates [date]
   3. any document that was provided by our client or on [their] behalf to the Department which consists of WorkCover Certificates of Capacity
   4. any documents generated by the Department that forwarded any WorkCover Certificates of Capacity to the Department’s WorkCover insurer or to the Department’s Payroll division/provider

3. In its decision, the Agency identified certain documents falling within the terms of the Applicant’s request. It decided to grant access to some documents in full and refuse access to other document in full. The Agency’s decision letter also notes the Applicant agreed to exclude personal affairs information of ‘individuals comprising names and contact details’ from the scope of the FOI request.

Review

4. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
5. I have examined copies of the documents subject to review.
6. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
7. I have considered all communications and submissions received from the parties, including:

1. 1. the Agency’s decision on the FOI request;
   2. the Agency’s submission dated 15 January 2019; and
   3. information provided with the Applicant’s review application.

8. In undertaking my review, I have had regard to the object of the FOI Act, which is to create a general right of access to information in the possession of the Government or other public bodies, limited only by exceptions and exemptions necessary to protect essential public interests, privacy and business affairs.

Review of exemptions

9. The Agency relied on the exemptions in sections 32(1) and 30(1) to refuse access to certain documents in full. The Agency’s decision letter sets out the reasons for its decision.

Section 32(1)

10. The Agency applied section 32(1) to refuse access in full to Documents 52 to 54 and 56.
11. Document 55 is a duplicate of the attachment included in Document 52. Although the Agency treated Document 55 as irrelevant, I have treated this document in the same manner as the attachment in Document 52.
12. A document will be subject to legal professional privilege and exempt under section 32(1) where it contains a confidential communication:^[1]

(a)  between the client (or the client’s agent) and the client’s professional legal advisers, that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or contemplated litigation; or

(b)  between the client’s professional legal advisers and third parties, that was made for the dominant purpose of pending or contemplated litigation; or

(c)  between the client (or the client’s agent) and third parties that was made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the dominant purpose of obtaining advice on pending or contemplated litigation.

13. The dominant purpose for which the confidential communication was made determines whether the exemptions applies.
14. For legal professional privilege to attach to a communication, a lawyer-client relationship must exist.[2]
15. Legal professional privilege cannot be invoked in respect of non-confidential communications.[3]

Documents 52 to 56

16. Documents 52, 53 and 54 are emails sent by the Agency’s legal adviser to the Agency, attaching letter correspondence. Documents 55 and 56 are letters from the Agency’s legal adviser to the Agency. In summary, I am satisfied these documents meet the requirements of and are, therefore, exempt under section 32(1).
17. I have decided Documents 52 to 56 are exempt under section 32(1) for following reasons:

1. 1. It is clear from the content of the emails and the letters these communications were intended to be confidential.
   2. The correspondence was sent by the Agency’s legal adviser to the Agency for the purpose of providing legal advice.
   3. The nature of the information in the documents is such that it was relevant to legal proceedings. This includes the attached letters that provide relevant updates on the legal proceedings.

18. Therefore, I am satisfied these documents are exempt under section 32(1).

Documents 29 and 57

19. Document 57 is a duplicate of Document 29. The document is an introductory letter from a law firm to the Agency. In its original decision, the Agency determined to release Document 29 with irrelevant information, namely personal affairs information, deleted in accordance with section 25.
20. I am satisfied the law firm was acting on behalf of the Agency upon instructions from the Agency’s WorkCover insurer. As such, the Agency is in a lawyer-client relationship with the law firm.
21. It is also clear from the nature of the document, the law firm intended the document to be a confidential communication to the Agency.
22. Where privilege is waived, then the exemption under section 32(1) ‘evaporates’.[4]
23. While I accept the document does not appear to contain legal advice on its face, it seeks provision of further documents from the Agency to assist the law firm in representing the Agency in a legal proceeding. Accordingly, I accept the document is subject to legal professional privilege to which section 32(1) is concerned.
24. On 3 May 2019, the Agency advised it inadvertently released a copy of this document (specifically Document 57) to the Applicant when providing access to documents following its original decision, with irrelevant material deleted in accordance with section 25. Therefore, I must consider if legal privilege in Document 57 (and Document 29 as it is a duplicate of Document 57) was waived by the Agency by its inadvertent release.
25. I am unable to locate a previous judgment or decision of a court or tribunal on the issue of waiver of privilege where there has been inadvertent release of a confidential legal communication to an applicant in the context of freedom of information (FOI).
26. I accept privilege will not necessarily be waived if a document is inadvertently released under FOI as generally there must be an intentional act that is inconsistent with the maintenance of confidentiality in the document. However, the Courts have imputed an intent by the client to waive privilege if the holder of the privilege (i.e. the legal client) does not act to rectify the inadvertent release promptly and as being inconsistent with an intent to continue to preserve confidentiality in the document.
27. Accordingly, on 16 May 2019, OVIC staff made inquiries with the Agency as to what steps it took to rectify the inadvertent release and recall the document. On 22 May 2019, the Agency advised it accepted privilege in Document 29 had been waived in the circumstances.
28. Accordingly, I am satisfied legal professional privilege in both Document 29 and 57 was waived by the Agency and these documents are not exempt under section 32(1).
29. For completeness, I also considered if Documents 29 and 57 are exempt under another exemption in the FOI Act. However, given the document was disclosed to the Applicant, I do not consider any exemption would apply to the document.

Section 30(1)

30. The Agency refused access to Documents 65 to 67 and 71 to 73 under section 30(1) in full.
31. Section 30(1) has three requirements:

(a)  the document must disclose matter in the nature of opinion, advice or recommendation prepared by an officer of Minister, or consultation or deliberation that has taken place between officers, Ministers or an officer and a Minister;
(b)  such matter must be made in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and
(c)  disclosure of the matter would be contrary to the public interest.

32. The exemption does not apply to purely factual matter in a document.[5]
33. In summary, the Agency submitted:

1. 1. The documents are drafts and the final versions have been released to the Applicant.
   2. Release of the draft documents would disclose recommendations, opinions and advice as to the appropriateness of the proposed draft.
   3. It is contrary to the public interest to disclose documents which the author regards as inappropriate for release except for in an altered form, i.e. their final form.
   4. It would be inappropriate to release material which is out of date and deemed inappropriate for use and requiring amendment.
   5. Agency officers should have the freedom to prepare, exchange and amend drafts in order to ensure the final version of documents are accurate in both form and substance.

34. I am satisfied the draft documents amount to ‘advice, opinion or recommendation’ prepared in the course of the Agency’s deliberative processes, as required by the first two limbs of section 30(1).
35. I must also be satisfied releasing this information in the documents would be contrary to the public interest. In deciding this question, it is necessary to consider all the relevant facts and circumstances, remaining mindful the object of the Act is to facilitate and promote the disclosure of information.
36. I have taken the following factors into consideration:[6]

1. 1. the right of every person to gain access to documents under the FOI Act;
   2. the degree of sensitivity of the issues involved;
   3. the state of the policy development process at which the communication was made;
   4. whether the disclosure would be likely to inhibit frankness and candour in the making of communications;
   5. whether disclosure would lead to confusion or unnecessary debate having regard to the possibilities considered;
   6. whether disclosure would give merely a part explanation rather than a complete explanation for the taking of a particular decision;
   7. the likelihood disclosure would create mischief in one way or another such as a risk of mischievous interpretation; and
   8. the significance of the document, for example whether it is or is not merely a draft document.

37. In my view, the documents do not meet the threshold test set out above. Therefore, I am not satisfied disclosure would be contrary to the public interest, for the following reasons:

1. 1. The fact a document is in draft form may be relevant, but is not determinative as to whether the exemption applies.
   2. Document 64 is the final version of Documents 65, 66 and 67, which was released to the Applicant. Document 74 is the final version of Documents 71, 72 and 73, which was also released to the Applicant. The information in the final version of the documents is highly comparable to that in the draft version. In some instances, the draft passages have been expanded and more information is included in the final documents.
   3. I do not consider the information in the draft documents to be particularly sensitive or contentious, particularly having regard to the passage of time and the age of the documents.
   4. Having considered the Applicant’s interest in the information, I note the Applicant seeks access to all documents to assist the Applicant in deciding whether to commence legal action against the Agency in relation to injuries sustained whilst employed by the Department.
   5. I consider members of the public and the Applicant are capable of understanding the documents are in draft form.
   6. I do not consider releasing the information in the documents would undermine any of the Agency’s future decision making processes or inhibit Agency officers from preparing and exchanging draft documents in the future.

38. Therefore, for the above reasons, I am not satisfied the documents are exempt under section 30(1).

Deletion of exempt or irrelevant information

39. Section 25 requires an agency to grant access to an edited copy of a document when it is practicable for the agency or Minister to delete exempt or irrelevant information and the applicant agrees to receiving such a copy.
40. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[7] and the effectiveness of the deletions. Where deletions would render the document meaningless they are not ‘practicable’ and release of the document is not required under section 25.^[8]
41. I have considered the information the Agency deleted from a large number of documents as irrelevant. I agree it falls outside the scope of the Applicant’s request because the Applicant agreed to exclude the information from the scope of the request – the following information was excluded:

1. 1. records of salary;
   2. copies of any correspondence passing between the Department and the WorkCover insurer that post-dates 6 January 2014;
   3. any document that was provided by the Applicant or on the Applicant’s behalf to the Department which consists of WorkCover Certificate of Capacity;
   4. any documents generated by the Department that forwarded any WorkCover Certificate of Capacity to the Department’s WorkCover insurer or to the Department’s Payroll division/provider; and
   5. personal information of individuals comprising names and contact details.

42. I have also considered the effect of deleting irrelevant information from Documents 66 and 67. In my view, it is practicable for the Agency to delete the irrelevant information because it would not require substantial time and effort and the edited documents would retain meaning.

Conclusion

43. On the information available, I am satisfied section 32(1) applies to exempt Documents 52 to 56 in full. However, I am not satisfied section 32(1) applies to exempt Documents 29 and 57 or Documents 65 to 67 and 71 to 73 are exempt under section 30(1).

Review rights

44. If either party to this review is not satisfied with my decision, they are entitled to apply to the Victorian Civil and Administrative Tribunal (VCAT) for it to be reviewed.^[9]
45. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[10]
46. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[11]
47. Information about how to apply to VCAT is available online at www.vcat.vic.gov.au. Alternatively, VCAT may be contacted by email at admin@vcat.vic.gov.au or by telephone on 1300 018 228.
48. The Agency is required to notify the Information Commissioner in writing as soon as practicable if either party applies to VCAT for a review of my decision.^[12]

When this decision takes effect

49. My decision does not take effect until the relevant review period (stated above) expires, or if either party applies to VCAT for a review, until the VCAT proceeding is concluded.

Annexure 1 – Schedule of Documents

Endnotes

[1] Graze v Commissioner of State Revenue [2013] VCAT 869 at [29]; Elder v Worksafe Victoria [2011] VCAT 1029 at [22]. See also Evidence Act 2008 (Vic), section 119.

[2] Young v State Insurance Office (1986) 1 VAR 267 in which the former Victorian Administrative Appeals Tribunal found correspondence headed ‘without prejudice’ is not protected by section 32(1) unless a relationship exists between a legal adviser and a client.

[3] Telebooth Pty Ltd v Telstra Corp Ltd [1994] 1 VR 337.

[4] Department of Justice v Osland [2007] VSCA 96.

[5] Section 30(1).

[6] Hulls v Victorian Casino and Gambling Authority (1989) 12 VAR 483.

[7] Mickelburough v Victoria Police (General) [2009] VCAT 2786 at [31]; The Herald and Weekly Times Pty Limited v The Office of the Premier (General) [2012] VCAT 967 at [82].

[8] Honeywood v Department of Human Services [2006] VCAT 2048 at [26]; RFJ v Victoria Police FOI Division (Review and Regulation) [2013] VCAT 1267 at [140] and [155].

[9] The Applicant in section 50(1)(b) and the Agency in section 50(3D).

[10] Section 52(5).

[11] Section 52(9).

[12] Sections 50(3F) and (3FA).