Mathews and The University of Queensland
(210612, 18 December 2008)
Section 29B Refusal to deal with application – previous application for same document – previous application the subject of external review – waiver
The applicant applied for documents relating to legal advice obtained by the University of Queensland (UQ) (Later Application). UQ indicated that the applicant had previously applied to UQ for the same documents (Earlier Application) and refused to deal with the Later Application under section 29B of the Freedom of Information Act 1992 (Qld) (FOI Act). This decision was affirmed on internal review.
In considering the application of section 29B of the FOI Act, Acting Assistant Commissioner Jefferies (A/AC Jefferies) stated that UQ was entitled to refuse to deal with the Later Application if the following criteria were satisfied:
a) the documents sought under the Later Application were the documents sought under the Earlier Application
b) UQ’s decision on the Earlier Application was the subject of a completed review under Part 5 of the FOI Act
c) the Later Application did not disclose any reasonable basis for again seeking access to the documents
In considering each of the above requirements, A/AC Jefferies found that in respect of criteria a) (which was not in contention between the parties) that the documents sought under the Later Application were the same documents as those sought under the Earlier Application. Accordingly, A/AC Jefferies was satisfied that the requirement in section 29B(3)(a) had been met.
In relation to criteria b), (which was not in contention between the parties) A/AC Jefferies confirmed that the Earlier Application resulted in external review number 657/05 which was completed on 28 February 2006 when a decision was issued by Assistant Commissioner Barker. Accordingly, A/AC Jefferies was satisfied that the requirement in section 29B(4)(a)(ii) had been met.
In relation to criteria c), A/AC Jefferies considered the applicant’s submission that by their conduct a UQ staff member had waived legal professional privilege (LPP) in the documents. A/AC Jefferies considered the case of Osland v Secretary to the Department of Justice 249 ALR 1 and found there was insufficient evidence to establish that the conduct referred to was inconsistent with maintaining confidentiality in the terms of the documents. As a result, A/AC Jefferies was not satisfied that legal professional privilege (LPP) in the documents sought by the applicant had been waived by UQ. Accordingly, A/AC Jefferies found that the Later Application failed to disclose any reasonable basis for again seeking access to the documents and therefore the requirement in section 29B(3)(b) had not been met.
In affirming the decision under review, A/AC Jefferies found that UQ was entitled to refuse to deal with the applicant’s freedom of information application on the basis of section 29B of the FOI Act.