BM Alliance Coal Operations Pty Ltd (First Applicant); Zietsman (Second Applicant) and Department of Mines and Energy

BM Alliance Coal Operations Pty Ltd (First Applicant); Zietsman (Second Applicant) and Department of Mines and Energy
(2006 F0234, 29 June 2007) 

The applicants sought access to a range of specified types of documents regarding an accident at a mine, the Department’s decision to commence proceedings in the Industrial Magistrates Court against BM Alliance and its senior site executive regarding the accident, and documents related to those proceedings.  During the review process, the Department agreed to release some matter and the applicants accepted this office’s preliminary views that other matter was exempt from disclosure.  The matter that remained in issue for the purposes of the decision was a District Inspector’s work diary and notes; miscellaneous matter remaining in issue; and matter related to the applicants’ submission that the Department’s release of a draft facsimile to them during the review process resulted in implied waiver of legal professional privileged regarding legal advice received by the Department and associated material. 

District Inspector’s work diary and notes—section 43(1) and section 44(1) 

In relation to the District Inspector’s work diary and notes, First Assistant Commissioner Rangihaeata found that legal professional privilege attached to the portions of matter that recorded or conveyed District Inspector Dunn’s confidential communications with the Department’s various legal advisors and, accordingly, such portions of matter were exempt from disclosure pursuant to section 43(1) of the FOI Act.  Further, First Assistant Commissioner Rangihaeata found that some matter—relating to preparation of a report regarding the accident, gathering of evidence and preparation of Briefs of Evidence, and miscellaneous tasks—did not constitute, record or convey communications, whether confidential or otherwise, with the Department’s legal advisors and, accordingly, that matter was not the subject of legal professional privilege, and not exempt from disclosure pursuant to section 43(1) of the FOI Act.  Finally, First Assistant Commissioner Rangihaeata found that the remainder of the matter—notes taken by the District Inspector during interviews with employees of BM Alliance and another company—was not confidential and did not record or convey confidential communications with the Department’s legal advisors (or, considering an alternative line of authority that draws an analogy with Propend, the notes were not communicated to the Department’s legal advisors) and, accordingly, the remainder of the matter was not the subject of legal professional privilege and not exempt from disclosure pursuant to section 43(1) of the FOI Act. 

In relation to the District Inspector’s notes, First Assistant Commissioner Rangihaeata noted that portions of matter recorded information regarding employees of BM Alliance and another company, such as dates of birth, residential addresses, residential phone numbers, personal mobile numbers, information regarding injuries and illnesses, including information regarding medication and ‘TPI’ (total and permanent incapacity) claims, and information regarding alcohol and other drugs.  First Assistant Commissioner Rangihaeata found that such matter concerned the personal affairs of those employees and noted that the general public interest in government held information being accessible, and the public interest in an individual receiving justice favoured disclosure; however, such considerations did not outweigh the inherent public interest in non-disclosure, in order to protect and maintain the privacy of information concerning the personal affairs of the employees.  Accordingly, First Assistant Commissioner Rangihaeata found that the matter concerning the personal affairs of the employees was exempt from disclosure pursuant to section 44(1) of the FOI Act. 

Miscellaneous matter remaining in issue—section 43(1)  

Regarding various types of documents, including a briefing note from a solicitor in the Department’s legal section to the Minister and tables prepared by that solicitor to assist in preparation of a brief to counsel, the applicants questioned whether the Department’s legal advisors provided legal advice and acted with the necessary degree of independence in order for legal professional privilege to attach to those documents.  First Assistant Commissioner Rangihaeata found that the various types of documents were authored and/or sent or received by solicitors in the employ of the Department.  First Assistant Commissioner Rangihaeata found that the solicitors were acting in their capacity as solicitors, that there was a client-solicitor relationship, that they provided independent legal advice and not advice circumscribed by the direction of their employer, the Department, and that such advice related to the accident and/or the proceedings, and not to policy, procedural or administrative issues.  Accordingly, First Assistant Commissioner Rangihaeata found that the various types of documents constituted, recorded or conveyed confidential communications between the Department’s legal advisors and the Department and, accordingly, such matter was exempt from disclosure pursuant to section 43(1) of the FOI Act. 

Regarding draft statements, the applicants submitted that the Director of Public Prosecutions Guidelines resulted in implied waiver of legal professional privilege.  On consideration of Briefs of Evidence provided by the Department to the applicants in the course of the Industrial Magistrates Court proceedings, and inspection of same at the applicants’ solicitor’s office, First Assistant Commissioner Rangihaeata considered that the Department had provided final versions of the draft statements to the applicants in the Briefs of Evidence.  First Assistant Commissioner Rangihaeata found that the draft statements recorded or conveyed confidential communications between the Department’s legal advisors and the Department and, accordingly, such matter was exempt from disclosure pursuant to section 43(1) of the FOI Act.  Further, while noting that she may not be able to consider statutory abrogation of legal professional privilege, First Assistant Commissioner Rangihaeata noted that relevant statutory provisions and the Guidelines did not abrogate nor waiver the privilege that attached to the draft statements. 

Implied waiver of privilege submission—section 43(1) 

The applicants submitted that the Department’s release of a draft letter from the Chief Inspector of Mines to a third party constituted implied waiver of legal professional privilege in underlying legal advice.  First Assistant Commissioner Rangihaeata found that the ‘findings’ set out by the Chief Inspector of Mines in the draft letter did not disclose the conclusion, gist, substance or effect of legal advice provided by legal advisors, but rather consisted of the conclusions reached by ‘the persons conducting the investigation’ (who were not legal advisors) and ‘other senior advisors’, and their administrative decisions based on those conclusions.  The applicants proposed that it was not necessary for the draft letter to mention legal advice and/or legal advisors (which it did not); however, on a review of relevant case law, First Assistant Commissioner Rangihaeata noted that the cases did not support the view that the draft letter disclosed the conclusion, gist, substance or effect of legal advice.  Further, First Assistant Commissioner Rangihaeata noted that the cases did not indicate that she should consider circumstances surrounding the draft letter, as proposed by the applicants, as well as the draft letter itself.