Kelly and Department of Justice and Attorney-General
(2000 S0041, 13 March 2002)
The applicant had applied to the Department of Justice and Attorney-General (DJAG) for all matter ‘concerning myself or my affairs’. Some 14,000 documents were identified as responsive to the applicant's access application. The vast majority of those documents related to litigation initiated by the applicant in July 1998 against the Electoral Commissioner of Queensland and Pauline Hanson's One Nation Party, the Crown Solicitor having been retained to represent the Electoral Commissioner. Most of the documents were subject to a claim for exemption under s.43(1) of the FOI Act, as documents subject to legal professional privilege; however, a small amount of matter was claimed to be exempt under s.45(1)(c) of the FOI Act.
The applicant also raised several ‘sufficiency of search’ issues, and a related contention that a letter from the Members' Ethics and Parliamentary Privileges Committee ought appear on Departmental files and had not been disclosed to him.
As to the general 'sufficiency of search' issues raised by the applicant, the Assistant Commissioner was satisfied that there were no reasonable grounds for believing that additional responsive documents existed in DJAG’s possession. The Assistant Commissioner also found that segments of matter containing Crown Law charge rates appearing on billing guides qualified for exemption under s.45(1)(c) of the FOI Act.
The letter from the Members' Ethics and Parliamentary Privileges Committee had originally existed on Departmental files, but had been misplaced by the time of this external review. The Assistant Commissioner was satisfied that DJAG had made all reasonable searches and inquiries in an effort to locate the document. DJAG asked the Parliamentary Committee to provide it with a further copy for the purposes of this external review; however, the Parliamentary Committee refused that request. The Assistant Commissioner found that DJAG did not have legal ownership of any copies held by the Parliamentary Committee, and no legal entitlement to take physical possession of such copies. Accordingly, the letter was not a 'document of the agency' as defined by s.7 of the FOI Act, and could not be dealt with further in a review involving the Department. The Assistant Commissioner observed that it was clear from the nature of the document that it would have qualified for exemption under s.50(c)(i) of the FOI Act in any event (see the case summary for Sharples and Queensland Police Service, 2001 S0068, 7 December 2001).
The Assistant Commissioner found that the majority of the documents in issue were exempt from disclosure to the applicant under s.43(1) of the FOI Act. She identified four principal categories of privileged documents:
· communications between the Electoral Commissioner and Crown Law;
· copies of non-privileged documents made for use in litigation or for providing legal advice;
· details of legal advice contained in Crown Law billing documents; and
· communications between the Crown Solicitor and the solicitors for the One Nation party relating to certain interlocutory issues in the litigation and to certain settlement proposals, which qualified for legal professional privilege under the head of ‘common interest’ privilege (see Buttes Gas & Oil Co and Anor v. Hammer and Anor (No.3)  QB 223; Bulk Materials (Coal Handling) Services Pty Ltd v. Coal and Allied Operations Pty Ltd (1988) 13 NSWLR 689).
The applicant argued that the privilege claimed in relation to the bulk of the documents in issue had been waived as a consequence of the DJAG permitting him to inspect some documents during the course of the review, or alternatively, that privilege was denied under the ‘illegal or improper purpose’ exception. The Assistant Commissioner rejected these arguments. She found that the DJAG FOI officers, who had inadvertently allowed the applicant to inspect some privileged documents, did not have authority to waive a privilege that properly belonged to the Electoral Commissioner, and that there were no considerations of fairness to the applicant which warranted a finding of implied waiver stemming from the inadvertent disclosure of some privileged documents. Based on her examination of the documents in issue and the material put forward by the applicant, the Assistant Commissioner was not satisfied of the existence of a prima facie case that any of the documents in issue had been created in preparation for, or furtherance of, an illegal or improper purpose.