Flavell and Department of the Premier and Cabinet
(310068, 10 November 2010)
Sections 47(3)(a) and (b), 48 and section 49 of the Right to Information Act 2009 (Qld) (RTI Act)
Schedule 3, sections 7 and 8
Public interest factors:
Schedule 4, part 2, items 1, 2, 5, 10, 11, 16 and 17 of the RTI Act
Schedule 4, part 3, items 2, 15, 16 and 19 of the RTI Act,
Schedule 4, part 4, items 4 and 8 of the RTI Act
The applicant applied to the Department of Premier and Cabinet (DPC) for information concerning Careers Australia Group (CAG) and himself in connection with a complaint made to the Crime and Misconduct Commission. DPC refused access to 76 pages of information under the RTI Act on the basis that legal professional privilege attached to 45 pages and that disclosure of the remaining 31 pages would found an action for breach of confidence.
The OIC asked DPC to conduct further searches for a finalised copy of a deed and any covering document. DPC advised that the State of Queensland was a party to the relevant deed through the then Department of Education, Training and the Arts (DETA) and it appeared that DPC was not provided with a copy of the finalised documents. On this basis, Right to Information Commissioner Smith (RTI Commissioner Smith) was satisfied that DPC’s further searches and explanation were adequate in the circumstances.
Exempt information - legal professional privilege
RTI Commissioner Smith was also satisfied that:
· communications between DETA and its various lawyers were made in the course of lawyer-client relationships and for the dominant purpose of seeking or providing legal advice;
· relevant communications were and remained confidential; and
· there was no evidence before her which established that privilege had been waived.
Specifically with respect to the applicant’s submissions that the forwarding and/or summarising of relevant communications for the Premier and Director-General of DPC amounted to waiver, RTI Commissioner Smith was satisfied that doing so was analogous to circulating privileged communications to senior officers within a corporation and that disclosure of this nature (that is, within the Crown) did not constitute waiver of legal professional privilege.
In relation to the applicant’s submissions that the improper purpose exception to legal professional privilege was made out, RTI Commissioner Smith was satisfied that the Government’s alleged breaches of natural justice and protocol did not constitute prima facie evidence of relevant wrongdoings and, even if the breaches occurred, they did not amount to an improper purpose. Accordingly, RTI Commissioner Smith was satisfied that the exception did not operate to prevent legal professional privilege from attaching to the communications.
In summary, RTI Commissioner Smith found that:
· legal professional privilege attached to 55 entire pages and part of two pages; and
· DPC could refuse access to this information under section 47(3)(a) of the RTI Act.
Exempt information - breach of confidence
With respect to the remaining information, RTI Commissioner Smith was satisfied that:
· Some information was communicated by ministerial or departmental staff and disclosed consultations and/or deliberations that had taken place during deliberative processes involved in the functions of the Queensland government. Accordingly, section 8(2) of schedule 3 precluded that information from being exempt information, the disclosure of which would found an action for breach of confidence.
· The rest of the information did not appear to have been communicated in circumstances in which equity would find that the recipient should be fixed with an enforceable obligation of confidence. Accordingly, one of the necessary elements for establishing that disclosure would found an action for breach of confidence was not satisfied.
· Disclosure of the remaining information would not found an action for breach of confidence and access to information could not be refused under section 47(3)(a) of the RTI Act.
Public interest considerations - including deliberative processes and confidential communications harm factors
RTI Commissioner Smith then considered relevant public interest considerations and was satisfied that disclosure of the remaining information could reasonably be expected to:
· promote open discussion of an aspect of public affairs and contribute to debate on this issue;
· enhance Government accountability by revealing background and contextual information related to Government action and decisions;
· allow or assist the applicant to inquire into possible or perceived deficiencies in the conduct or administration of an agency or official; and
· advance the applicant’s fair treatment in accordance with the law in his dealings with the agency.
RTI Commissioner Smith was also satisfied that the deliberative processes public interest harm factor applied to a small amount of the information remaining in issue; however, the confidential communications public interest harm factor did not apply to that information. She also noted that disclosure of the remaining information could prejudice the private, business, professional, commercial or financial affairs of entities such as the Government or CAG or trade secrets, business affairs or research of an agency or person; and prejudice an agency's ability to obtain confidential information, its management functions or its conduct of industrial relations.
On balance, RTI Commissioner Smith considered that significant weight should be afforded to the factors favouring disclosure, whereas the factors favouring non-disclosure would not prejudice the public interest to any significant degree, given that:
· the relevant matter was resolved
· any sensitivity that may have attached to the information was diminished by the passing of time and the presence of related material in the public domain; and
· it was not apparent that disclosure of the remaining information would impede or have an adverse effect upon the administration or performance of any agency or Minister or the Government as a whole.
Accordingly, RTI Commissioner Smith was satisfied that:
· the factors favouring disclosure of the remaining information outweighed those favouring its non-disclosure; and