ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – EXEMPT INFORMATION – LEGAL PROFESSIONAL PRIVILEGE – access refused to documents - whether information is exempt on the basis of legal professional privilege under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 and schedule 3, section 7 of the Right to Information Act 2009 (Qld)
ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – EXEMPT INFORMATION – SERIOUS ACT OF HARASSMENT OR INTIMIDATION – access refused to documents - whether information is exempt because disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation – section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 and schedule 3, section 10(1)(g) of the Right to Information Act 2009 (Qld)
ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – access refused to documents – whether information concerns applicant’s personal information – – whether information is outside scope of the access application – sections 40 and 47 of the Information Privacy Act 2009 (Qld)
1. In two access applications, the applicant applied to TransLink Transit Authority (TransLink) under the Information Privacy Act 2009 (Qld) (IP Act) for:
2. In response to the First Application, TransLink identified documents comprising 2,318 pages in total. It refused access to some pages and parts thereof on the basis that the information was subject to legal professional privilege or its disclosure would, on balance, be contrary to public interest. TransLink also excluded other information from consideration on the basis that it was irrelevant to the access application.
3. In response to the Second Application, the Department of Transport and Main Roads (Department)1 identified documents comprising 672 pages and made a decision on the same basis.
4. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the two decisions insofar as they refused access to information. During the external reviews, a number of issues were informally resolved and the Department gave the applicant access to additional information. Following this process, the applicant has, in total, obtained access to:
5. With respect to the remaining Information in Issue, for the reasons set out below, the Department was entitled to:
6. Significant procedural steps relating to the applications and the external reviews are set out in the appendix to this decision.
7. The decisions under review in external reviews 311110 and 311176 respectively are:
8. Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and appendix).
9. During the external reviews, the Department accepted OIC’s view that some information that the Department considered to irrelevant to the access applications was within scope and therefore subject to consideration in the reviews.2 Some of this information was not released to the applicant on the basis that it comprises either Category A information3 or Category B information,4 for the reasons set out below.
10. Additionally, the Department accepted OIC’s view that a document5 correctly identified by TransLink as being outside the scope of the First Application, was within the scope of the Second Application.6 This document contains Category B information, for the reasons set out below.
11. The specific issues for determination are whether:
12. Yes, for the reasons that follow.
13. The Category A information comprises 1,380 entire pages and parts of 44 pages responsive to the First Application and 314 entire pages and parts of 7 pages responsive to the Second Application.10
14. Under the IP Act, an individual has a right to be given access to documents of an agency to the extent the documents contain the individual’s personal information. However, this right is subject to limitations, including grounds for refusal of access.11 The Right to Information Act 2009 (RTI Act) provides that access may be refused to documents to the extent that they comprise exempt information.12 Schedule 3 of the RTI Act sets out categories of information the disclosure of which Parliament has deemed to be contrary to the public interest, and therefore exempt from disclosure.13
15. Schedule 3, section 7 of the RTI Act provides that information will be exempt from disclosure if it would be privileged from production in a legal proceeding on the ground of legal professional privilege. This exemption reflects the requirements for establishing legal professional privilege at common law.14
16. Confidential communications between a lawyer and client will be privileged where the communications are for the dominant purpose of seeking or giving legal advice (advice privilege) or use in existing or anticipated legal proceedings (litigation privilege).15 The dominant purpose is ‘the ruling, prevailing, or most influential purpose’16 and is to be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions.
17. Legal professional privilege will also protect further communication of the above types of communication between parties, where each party has a common or mutual interest in obtaining legal advice or representation with respect to actual or anticipated litigation.17
18. The Category A information comprises confidential communications:
19. I am satisfied that the dominant purpose for the communications involving its internal and/or external legal advisers was seeking or providing legal advice, or obtaining evidence for the Department’s use in, or in relation to, legal proceedings.
20. In this regard, I consider that proceedings before the Australian Human Rights Commission are sufficiently analogous to court proceedings to warrant recognition of the privilege.19
21. Further, I am satisfied that the contracted service provider and the Department had a common or mutual interest in the defence of their respective legal proceedings (which encompassed the same issues), and therefore a common or mutual interest in relevant parts of the Category A information (which comprised advice regarding the issues, or material created for the use in, or in relation to, those proceedings).
22. The applicant submits20 that:
23. Given the applicant’s submissions, I have considered whether legal professional privilege does not attach to the Category A information because:
24. In Secher and James Cook University23 the Assistant Information Commissioner considered the improper purpose exception to legal professional privilege and explained that:
Legal professional privilege will not apply to legal communications made in the furtherance of a fraud or crime. This exception operates to displace legal professional privilege where evidence exists that the relevant client has embarked on a deliberate course of action knowing that the proposed actions were contrary to law, and has made the relevant communications in furtherance of that illegal or improper purpose.
The person alleging that privilege has been displaced by reason of an alleged illegal or improper purpose must show that it is made out in the current circumstances. In establishing improper purpose, the standard of proof is high. The High Court has observed that it “is a serious thing to override legal professional privilege where it would otherwise be applicable” and as a result “vague or generalised contentions of crimes or improper purposes will not suffice.”
25. I have carefully considered the applicant’s submissions together with the Category A information. My jurisdiction to consider these submissions is limited, given the issues and legislation they traverse. In any event, even if section 38 of the GHAD Act does not meet requirements of sections 9 and 54A of the DDA Act (about which I make no finding, given the limits on my jurisdiction), there is no evidence on the face of the Category A information, or otherwise before me, that the particular communications were made in furtherance of an illegal or improper purpose associated with registration requirements for assistance animals, or any other illegal or improper purpose.
26. In these circumstances, I am satisfied that the improper purpose exception does not preclude the application of legal professional privilege to the Category A information.
27. Legal professional privilege may protect communications between a salaried employee legal adviser of a government department or statutory authority and his/her employer as the client, including communications through other employees of the same employer, provided there is a professional relationship of legal adviser and client, which secures to the advice an independent character, notwithstanding the employment.24
28. In response to OIC inquiries regarding the status of the various Departmental officers identified in the Category A information as ‘Principal Legal Officer’ or ‘Manager’ in the Department’s unit responsible for providing legal services, the Department confirmed that officers holding such positions in that unit are appropriately qualified and engaged for the entirety of their positions in providing independent legal advice and support to the Department.
29. Given that information, I am satisfied that the Department’s internal legal advisers acted in a professional, independent capacity, and accordingly, communications involving them may attract legal professional privilege.
30. In conclusion, I find that the entirety of the Category A information satisfies the common law requirements for establishing legal professional privilege.
31. Yes, for the reasons that follow.
32. The Category B information comprises parts of 143 pages responsive to the First Application and parts of 205 pages responsive to the Second Application.25
33. Schedule 3, section 10(1)(d) of the RTI Act provides that information is exempt if its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation.
34. The RTI Act does not define ‘a serious act of harassment or intimidation’ - therefore the terms should be given their ordinary meanings. The Information Commissioner has previously accepted the following dictionary definitions:26
35. Further, the Information Commissioner has noted that some degree of harassment or intimidation is permissible before this exemption will apply.27 Therefore, the expected harassment or intimidation must be serious in nature for schedule 3, section 10(1)(d) to apply. Relevant dictionary definitions of ‘serious’ include ‘weighty or important’,28 ‘giving cause for apprehension; critical’,29 and ‘having (potentially) important, esp. undesired, consequences; giving cause for concern’.30
36. In Sheridan the Information Commissioner considered the phrase ‘could reasonably be expected to’ and found that, depending on the circumstances of the particular review, a range of factors may be relevant in determining whether an expectation is reasonably based. These factors may include, but are not limited to:31
37. The Category B information comprises information that identifies individuals, including staff of the Australian Human Rights Commission, the Department and one of its service delivery providers, and their contact details.32
38. I have carefully considered the information available to me, including the Department’s submissions, information released to the applicant by the Department, information on the applicant’s website and the Category B information.
39. Documents that the Department released to the applicant under the First Decision, containing information that identifies certain individuals, have been posted on the applicant’s website accompanied by offensive and abusive remarks directed at those individuals. Further, the applicant’s website explicitly notes that it is his intention that potential future employers of individuals included on his website will, if they conduct internet searches of the individuals’ names, be directed to comments on the applicant’s website belittling and deriding them, in order to adversely affect their future employment prospects.
40. After taking into account all of the information available to me, I have formed the view that this behaviour constitutes harassment, as the applicant’s actions are actions that attack, disturb or torment other persons. I also consider the applicant’s actions to be acts of intimidation, as his behaviour has, as intended, induced fear among some individuals regarding their current employment and future career prospects.
41. While the posting of commentary such as that appearing on the applicant’s website alone may be insufficient to reach the threshold of a ‘serious act of harassment or intimidation’, the relevant commentary may be viewed in conjunction with its malicious intention of causing professional detriment to those referred to (as stated on his website). In these circumstances, I am satisfied that the applicant’s conduct is sufficiently concerning to constitute serious acts of harassment and intimidation of the individuals concerned.
42. As set out above, I consider that the applicant seriously harassed and intimidated individuals identified in information released to him by the First Decision. In this regard, I consider the applicant’s conduct occurred as a result of the disclosure of information similar to the Category B information.
43. Further, I am satisfied that the applicant’s conduct regarding this similar information provides the necessary causal link34 to establish a reasonable expectation that, if the Category B information is disclosed to the applicant, he will subject the individuals identified in it to similar serious acts of harassment or intimidation. That is, I am satisfied that the applicant’s website posts and comments regarding persons mentioned in the Category B information could reasonably be expected to commence, resume or intensify as a result of disclosure of that information.
44. The applicant submits, in the context of this issue, that he was recently the victim of violence by three TransLink officers. He states he was assaulted by the TransLink officers on 5 March 2013 while on a bus with his assistance animals, and sustained injuries to his shoulder.
45. On the information before me, I am unaware of any investigations undertaken in respect of the applicant’s allegation. In any event, I acknowledge the serious nature of the allegation and the applicant’s related antipathy towards the Department. However, I also note that the applicant’s submissions do not address his previous conduct towards individuals identified in information released to him by the First Decision, or the future likelihood of such conduct by him if he was able to access the Category B information. The applicant’s submissions therefore provide no evidence to counter or put into context the balance of information on this issue before me.
46. Potentially, the applicant’s expressed antipathy towards the Department prompted by the alleged incident may increase the likelihood that the applicant may engage in serious acts of harassment and intimidation towards individuals identified in the Category B information. Whether or not this is the case, taking into account the causal link mentioned above and the lack of any evidence to suggest otherwise, I am satisfied that the expectation for future acts of this nature is reasonably based.
47. In conclusion, I find that disclosure of the Category B Information could reasonably be expected to result in individuals being subjected to serious acts of harassment or intimidation.
48. Yes, for the reasons that follow.
49. The Category C information comprises 100 entire pages and parts of 2 pages (the remainder of which comprise Category A information).
50. Under the IP Act, a person has a right to be given access to documents of an agency, to the extent the documents contain the individual’s personal information.35 As the access applications are made under the IP Act, access may be refused to documents which do not contain the applicant’s personal information.36 If any of the documents located in response to an access application under the IP Act do not contain the applicant’s personal information, the documents will not respond to the access application.37 Additionally, access may be refused to documents which were not in existence when the particular access application was made.38
51. The terms of the First Application are:
I now seek access to all information on any and every document that contains any information that relates to me, is relevant to me or is in any way personal to me, that is contained in any Files in the possession of TransLink.
52. The terms of the Second Application are the same, except that it further specifies:
AND that have come into existence or the possession or control of Translink subsequent to the date or time of myu [sic] previous request for such. This will include all documents produce [sic] in the process of fulfilling my previous IP application.
53. I have carefully examined the Category C information. I am satisfied that it:
54. Some of the Category C information post-dates 21 July 2012, and therefore post-dates both the date on which Department received the First Application on 17 May 2012 and the date on which the Department received the Second Application on 21 July 2012.
55. Given section 47(1) of the IP Act – which provides that an access application only applies to documents in existence on the day the application is received by the agency – I am satisfied that the Category C information that post-dates 21 July 2012 is outside the scope of both applications and cannot be considered in either review.
56. The remaining Category C information that does not relate to the applicant either:
57. The applicant made submissions regarding information concerning complaints lodged by persons other than him that:
Because Translink has acted unlawfully to me for as long as it has existed, complaints by other persons are not of no concern to me.
58. However, both the specific terms of the two access applications, and the fact that they were made under the IP Act, constrain responsive information to information that is the applicant’s personal information. The applicant’s interest in accessing information about other persons who may have complaints about TransLink does not render that information the applicant’s personal information, and consequently cannot have the effect of enlarging the scope of his access applications. I am satisfied that information concerning other persons’ complaints falls outside the scope of both of the First Application and the Second Application.
59. Similarly, I am satisfied that the remaining information unrelated to the applicant (regarding another person’s access application and issues such as the Department’s website or general policy issues) does not comprise the applicant’s personal information, and is therefore outside the scope of both applications.
60. In summary, I find that the Category C information falls outside the scope of both the First Application and the Second Application and therefore cannot be considered in either review.
61. For the reasons set out above, I vary the First Decision and the Second Decision under review and find that:
62. I have made this decision as a delegate of the Information Commissioner, under section 139 of the Information Privacy Act 2009 (Qld).
Acting Assistant Information Commissioner
Date: 28 August 2013
|17 May 2012||TransLink received the access application under the RTI Act.|
|20 June 2012||TransLink issued its initial decision to the applicant.|
|22 June 2012||TransLink received the internal review application.|
|18 July 2012||TransLink issued its internal review decision to the applicant.|
|19 July 2012||OIC received the external review application. OIC asked TransLink to provide a number of procedural documents by 24 July 2012.|
|20 July 2012||OIC received the requested documents from TransLink.|
|23 July 2012||OIC notified the applicant and TransLink that it had accepted the external review application and asked TransLink to provide a copy of the documents in issue.|
|2 August 2012||OIC received the requested information from the Department.|
|21 July 2012||TransLink received the access application under the RTI Act.|
|28 August 2012||The Department issued its initial decision to the applicant.|
|28 August 2012||The Department received the internal review application.|
|17 September 2012||The Department issued its internal review decision to the applicant.|
|17 September 2012||OIC received the external review application.|
|18 September 2012||OIC asked the Department to provide a number of procedural documents by 21 September 2012.|
|21 September 2012||OIC received the requested documents from the Department.|
|8 October 2012||OIC asked the Department to provide a list identifying documents in the review and the Department provided OIC with the requested list.|
|10 October 2012||OIC notified the applicant and the Department that it had accepted the external review application.|
|31 January 2013||OIC provided the applicant and Department with an update on the status of the external reviews.|
|11 March 2013||OIC requested that the Department provide information about documents released to the applicant under its decisions and the Department provided this information.|
|19 March 2013||OIC requested that the Department provide additional information about documents released to the applicant.|
|20 March 2013||OIC requested that the Department provide further information about documents released to the applicant.|
|21 March 2013||The Department provided information to OIC about documents released to the applicant.|
|22 March 2013||The Department provided further information to OIC about documents released to the applicant.|
|3 May 2013||OIC conveyed a preliminary view to the Department regarding information in issue in the reviews.|
|16 May 2013||The Department notified OIC that it accepted the preliminary view.|
|21 May 2013||OIC asked the Department to provide information that it no longer refused to disclose to the applicant by 27 May 2013.|
|13 June 2013||The Department notified OIC that it had provided the applicant with the relevant information.|
|18 June 2013||OIC conveyed a preliminary view to the applicant regarding information in issue in the reviews.|
|18 June 2013||The applicant notified OIC that he did not accept the preliminary view and provided submissions supporting his case in three emails.|
|15 July 2013||OIC requested that the Department provide information regarding its internal legal advisers and the Department provided that information.|
|19 August 2013||OIC conveyed a preliminary view to the applicant regarding information outside the scope of the two applications by two emails.|
|26 August 2013||OIC requested that the Department provide further information regarding individuals’ concerns and fears following publication of personal information responsive to the First Application by the applicant, and the Department provided that information.|
 Following machinery-of-Government changes implemented on 2 August 2012, TransLink became part of the Department.
 In review 311110: File A, pages 173-289. In review 311176: pages 26-27, 54-63 and 615.
 In review 311110: File A, pages 173-289. In review 311176: page 615.
 In review 311176: pages 26-27 and 54-63.
 In review 311110: File A, page 300.
 As it concerns the applicant and is dated prior to the date that the Second Application was received by the Department – section 47 of the IP Act.
 Sections 47(3)(a), 48 and schedule 3 section 7 of the RTI Act.
 Sections 47(3)(b) and 49 of the RTI Act.
 Section 40 of the IP Act.
 Note – some of the part pages also contain Category B information.
 The grounds for refusal are set out in section 47(3) of the RTI Act.
 Section 47(3)(a) of the RTI Act.
 Section 48(2) of the RTI Act.
 Ozcare and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 13 May 2011) at .
 The general principles of legal professional privilege were summarised by the High Court of Australia in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at  as follows: ‘It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings…’’
 Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at .
 Buttes Gas & Oil Co and Anor v. Hammer and Anor (No.3)  QB 223 at 243; Bulk Materials (Coal Handling) Services Pty Ltd v. Coal and Allied Operations Pty Ltd (1988) 13 NSWLR 689 at 691,696; and Southern Cross Airlines Holdings Ltd (in liq) v Arthur Anderson & Co (1998) 84 FCR 472 at 480.
 Discrimination complaint proceedings concerning the provision of transport services.
 Attorney-General (NT) v Maurice (1986) 69 ALR 31 at 41; and Farnaby and Military Rehabilitation and Compensation Commission  AATA 1792 at .
 Submissions dated 18 June 2013.
 Where a communication is made in furtherance of an illegal or improper purpose or, a purpose that is contrary to the public interest.
 Which requires that communications involving an agency’s internal legal adviser occur in his/her capacity as a professional legal adviser.
 (Unreported, Queensland Information Commissioner, 6 June 2012) at  and .
 Waterford v Commonwealth (1986) 163 CLR 54, 62 (Mason and Wilson JJ).
 Note – some of the part pages also contain Category A information.
 Ogawa and Queensland Police Service (Unreported, Queensland Office of the Information Commissioner, 21 June 2012) applying Sheridan and South Burnett Regional Council (and others) (Unreported, Queensland Information Commissioner, 9 April 2009) (Sheridan) at paragraphs 194-197 referring to the Macquarie Dictionary Online (Fourth Edition). The decision in Sheridan concerned section 42(1)(ca) of the now repealed Freedom of Information Act 1992 (Qld). Schedule 3, section 10(1)(d) of the RTI Act is drafted in substantially the same terms as the provision considered in Sheridan. Therefore, the Information Commissioner’s findings in that matter are relevant in interpreting schedule 3, section 10(1)(d) of the RTI Act.
 Sheridan at .
 Macquarie Dictionary Online (Fifth Edition).
 Macquarie Dictionary Online (Fifth Edition).
 New Shorter Oxford Dictionary (Fourth Edition), as quoted by the Information Commissioner in Sheridan.
 Sheridan at .
 The Category B information comprises: names, position, signatures, telephone numbers (including mobile telephone numbers), fax numbers, email addresses, photographs. In the First Decision and the Second Decision, the Department refused access to the Category B Information on the basis that, on balance, disclosure would be contrary to the public interest under section 47(3)(b) and section 49 of the RTI Act.
 Rather than independently or from any other circumstances.
 Richards and Gold Coast City Council (Unreported, Queensland Information Commissioner, 28 March 2012) at  adopting the reasoning in Sheridan at .
 Section 40 of the IP Act.
 Personal information is defined in section 12 of the IP Act as: information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
 Mahoney and Ipswich City Council (Unreported, Queensland Information Commissioner, 17 June 2011) at .
 Under section 47(1) of the IP Act, an access application is taken to apply only to documents that are, or may be, in existence on the day the application is made.
 Sections 47(3)(a) and 48 and schedule 3 section 7 of the RTI Act.
 Sections 47(3)(b) and 49 of the RTI Act.
 Section 40 of the IP Act.