Hobden and Ipswich City Council

Application number:
1997 L0020
Decision date:
Thursday, Jun 25, 1998
Reported:
(1998) 4 QAR 404

Hobden and Ipswich City Council
(1997 L0020; 25 June 1998) 

The documents in issue in this case related to an incident in which the applicant, then aged 16, was injured when he fell from his bicycle while riding on a footpath.  The documents in issue included communications between the Council and its insurer, and between a Councillor and the Council officer responsible for dealing with public liability insurance claims, together with copies of letters from the applicant's mother to the Council, and a report and draft statement by a Council officer. 

The Council claimed that the documents in issue were exempt under s.41(1) or s.43(1) of the FOI Act.  In support of its claim for exemption under s.41(1), the Council argued that the public interest of the ratepayers of Ipswich in ensuring that the Council avoided loss in a matter of litigation outweighed the interests of the applicant. 

The Information Commissioner commented that the Council's submission was misconceived.  While the Council has an obligation to its ratepayers to ensure that public monies are not wasted, that does not mean that the public interest necessarily favours withholding of relevant information from a person who potentially has a legal entitlement to compensation from the Council.  In such circumstances, the relevant duty of the Council would be more correctly described as a duty to ensure that a claimant receives no more than the claimant's proper entitlement (if any) to compensation under the applicable law.  The greater public interest lies in ensuring that individuals receive fair treatment in accordance with the law in their dealings with government.  Having regard also to the principles stated in Willsford and Brisbane City Council (1996) 3 QAR 368 at p.373, the Information Commissioner decided that disclosure of certain of the documents in issue would not be contrary to the public interest, and hence that those documents did not qualify for exemption under s.41(1) of the FOI Act. 

With respect to the claims for exemption under s.43(1), the Information Commissioner was not satisfied that any of the documents in issue had been brought into existence for the sole purpose of seeking or giving legal advice or professional legal assistance, or for the sole purpose of use, or obtaining material for use, in pending or anticipated legal proceedings.  The Council argued that copies of documents on a particular file had been created or collated for the sole purpose of defending possible litigation.  That argument may have been intended to invoke reliance on one of the principles established by the High Court decision in Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; 71 ALJR 327, i.e., that legal professional privilege may attach to a copy document, the original of which does not itself attract legal professional privilege, provided the copy was brought into existence solely for the purpose of obtaining or giving legal advice, or solely for use in litigation that is pending or reasonably anticipated. 

The Information Commissioner observed that there is limited utility for an agency in invoking exemption on that ground, since the agency would be obliged to grant access to the non-privileged originals (and any other non-privileged copies of them) provided they were (a) in the possession or control of the agency, (b) covered by the terms of the relevant FOI access application, and (c) not exempt from disclosure on other grounds.  However, it is possible that an agency may wish to avoid disclosing the contents of a file (or perhaps attachments to a brief to counsel) comprising copies of non-privileged documents that have been copied solely for a privileged purpose, because to do so would disclose its process of selection of material considered relevant for the purpose of submission to legal advisers.  In such circumstances, the agency can avail itself of the principle established in the Propend Finance case, and the Information Commissioner expects that most reasonable applicants would not even wish to challenge a claim for exemption made on that basis, provided the applicant was assured that access had been granted to all non-privileged originals, and non-privileged copies thereof, covered by the terms of the relevant FOI access application.