Henderson and Queensland Law Society Inc.; O

Application number:
2005 F0049
Decision date:
Monday, Jun 25, 2007

Henderson and Queensland Law Society Inc.; O’Dwyer (Third Party); LIH (Fourth Party)
(2005 F0049, 25 June 2007) 

The applicant sought access to matter relating to complaints made to the Queensland Law Society (QLS) by two persons (the fourth party and another person) regarding the conduct of a solicitor (the third party).  The QLS did not make a decision regarding release of such matter and was deemed to have refused access.  

Matter outside scope 

Assistant Commissioner V Corby determined that some of the matter that the QLS initially identified as being responsive to the applicant’s application did not fall within the scope of that application and, accordingly, the applicant was not entitled to access such matter via his application. 

Sufficiency of search 

In submissions, the applicant raised sufficiency of search issues regarding documents that he considered should have been located in response to his application.  However, Assistant Commissioner Corby found that those documents did not fall within the scope of the application.   

The applicant referred to a further document that he considered raised sufficiency of search issues—however, he did not provide a copy of that document.  Consistent with the comments of the Information Commissioner in Ainsworth and the Criminal Justice Commission and Others (1999) 5 QAR 284, Assistant Commissioner Corby was unable to identify any further relevant avenues of search or inquiry for the QLS to undertake and considered that the QLS had fulfilled its onus to establish that its searches and inquiries had been sufficient. 

Assistant Commissioner Corby was satisfied that there were no reasonable grounds for believing that additional documents responsive to the applicant’s application existed, and that the search efforts of the QLS were reasonable.   

Section 22(a) Access refused  

Assistant Commissioner Corby was satisfied that the QLS was entitled to refuse access to a Censure Report regarding the third party solicitor pursuant to section 22(a) of the FOI Act, as that Report had been available on the QLS’s website and was currently available on the Legal Services Commission’s website. 

Section 43(1) Legal Professional Privilege 

In relation to a brief to Counsel (and supplements to that brief) and memorandums of advice from Counsel (and supplements to such advice), Assistant Commissioner Corby observed legal professional privilege attaches to communications with counsel and found that such matter was exempt from disclosure pursuant to section 43(1) of the FOI Act. 

Section 46(1)(a) Breach of Confidence 

In relation to correspondence (and attachments thereto) between the QLS and a complainant, and between the QLS and the third party solicitor, Assistant Commissioner Corby considered that such matter was information that related to the business affairs of ‘third parties’ (that is, the complainant and the third party solicitor) and was not generally available.  Assistant Commissioner Corby found that the information possessed the necessary quality of confidence or secrecy.  On consideration of section 50 of the Queensland Law Society Act 1952 (Qld), section 3.8 of the then Operating Procedures Manual of the QLS’s Investigations and Prosecutions Section (now known as the QLS’s Investigations Section) and the comments of the Information Commissioner in ‘B’ and Brisbane North Regional Health Authority (1994) 1 QAR 279 (at paragraphs 82 and 87) and McCann and Queensland Police Service (1997) 4 QAR 30 (at paragraph 57), Assistant Commissioner Corby was satisfied that a mutual understanding of confidence existed regarding the information communicated between the QLS and a complainant, and between the QLS and the third party solicitor, and that disclosure of that information to the applicant would constitute an unauthorised use of the information. 

Assistant Commissioner Corby considered the exception to section 46(1) set out in section 46(2) and defences to an action for a breach of confidence, however she found that they were not applicable in the circumstances of the review.  In conclusion, Assistant Commissioner Corby found that the matter constituted confidential information capable of protection in equity whose disclosure would found an action for breach of confidence and, therefore, such matter was exempt from disclosure pursuant to section 46(1)(a) of the FOI Act.