McLean and Central Queensland University
(210598, 18 March 2009)
The applicant sought access to various documents from Central Queensland University (CQU).
In response to the FOI Application, CQU provided the applicant with access to numerous documents but claimed that some documents qualified for exemption or exclusion under sections 43(1) and 29B of the Freedom of Information Act 1992 (Qld) (FOI Act).
During the course of the review and in response to inquiries by this Office, CQU agreed to release further documents (or parts thereof) to the applicant.
In response to Assistant Commissioner Henry’s preliminary view, the applicant indicated that he did not consider that the exemption claim under section 43(1) of the FOI Act was appropriate in the circumstances and also submitted that he was dissatisfied with the searches for documents undertaken by CQU.
Section 43(1) Legal Professional Privilege – application of the ‘improper purpose exception’
The application disputed the application of section 43(1) of the FOI Act to the matter in issue (Matter in Issue) and submitted that CQU’s solicitor may have condoned an illegal act in which case he was unable to claim that he was acting in his capacity as a lawyer at the relevant time and his advice to CQU could not be held to be legitimate legal advice.
On the information available and with reference to comments made by the Information Commissioner in Murphy and Queensland Treasury (1998) 4 QAR 446, Assistant Commissioner Henry considered there was no evidence establishing that the relevant communications were made in preparation for, or furtherance of, some illegal or improper purpose. Accordingly the improper purpose exception was not made out.
In applying the principles established in Esso Australia Resources Ltd v Commission of Taxation (1999) 201 CLR 49, Grant v Downs  HCQ 63; (1976) 135 CLR 674, Waterford v Commonwealth of Australia (1987) 163 CLR 54, Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 and Trade Practices Commission v Serling (1979) 36 FLR 244 Assistant Commissioner Henry found the Matter in Issue comprised of confidential communications:
· between CQU and its solicitor where the dominant purpose of each communication was to request or obtain legal advice; or
· between CQU’s solicitor and a third party where the dominant purpose of each communication was to request or obtain material to enable CQU’s solicitor to provide CQU with legal advice.
Accordingly, Assistant Commissioner Henry decided that the Matter in Issue qualified for full or partial exemption from disclosure under section 43(1) of the FOI Act
Section 28A – refusal of access – agency to be satisfied document does not exist – obligation on an agency to create a document where information does not exist in form requested
In questioning the adequacy of CQU’s searches for documents the applicant submitted that:
· further documents sent to a staff member of CQU concerning him should be provided
· statistical information for the period 1996 to 2002 is required to be kept by CQU and therefore should exist.
Applying the principles set out in PDE and University of Queensland (unreported decision of 9 February 2009) for the purposes of section 28A(1) of the FOI Act, whether an agency is ‘satisfied’ that a document does not exist is an evaluative judgement based on the knowledge and experience of the agency with respect to, among other key factors, relevant administrative practices and procedures including but not exclusively information management approaches.
CQU stated that whilst the statistical information was retrievable by searching and extracting information from timesheets and personnel records, it did not currently exist in the form requested by the applicant. In respect of this issue, Assistant Commissioner Henry found that because the information currently existed in a range of written documents held by CQU, the exemption under section 30(1)(e) of the FOI Act did not apply in the circumstances and CQU was not obliged to create the requested document.
In deciding that CQU was entitled to refuse access to the documents under section 28A(1) of the FOI Act, Assistant Commissioner Henry was satisfied that:
· CQU had undertaken extensive searches for documents held by it relating to the applicant and these searches would have captured all documents within its possession responsive to the FOI Application
no further documents responsive to the FOI Application existed.