McMahon and Department of Natural Resources, Mines and Water

McMahon and Department of Natural Resources, Mines and Water
(2003 F0255, 2 May 2006)

McMahon and Department of Natural Resources, Mines and Water
(2003 F0256, 2 May 2006) 

s.12 – documents of the Information Commissioner; s.43(1) – legal professional privilege – waiver – 'improper purpose'; s.44(1) – personal affairs – identities of unsuccessful job applicants; 'sufficiency of search' 

The applicant sought access to a wide range of documents concerning his employment with the Department, including legal advices received from an in-house lawyer, Crown Law and private counsel, which he contended did not attract legal professional privilege as they were sought/given in furtherance of an improper purpose.  He also sought access to the identities of unsuccessful applicants for positions to which he himself had failed to secure appointment, and to correspondence and documents from this office to the Department.  The applicant also raised numerous 'sufficiency of search' issues. 

AC Barker found that correspondence from this office was excluded from the operation of the FOI Act by s.12, and that the Department had been entitled to refuse access to it.  In accordance with Information Commissioner Albietz's findings in Baldwin and Department of Education and Others, AC Barker found that the identities of the unsuccessful job applicants were prima facie exempt from disclosure under s.44(1) of the FOI Act.  As the applicant had not identified any public interest which would be served by disclosure of that matter, AC Barker affirmed the Department's decision that it qualified for exemption. 

With respect to the matter claimed to be privileged, AC Barker varied the Department's decision by finding that privilege had been waived with respect to 8 documents; that a further 39 documents contained no privileged information; but that the balance of the documents qualified for exemption under s.43(1) of the FOI Act, as there was no evidence that the advice was obtained in furtherance of an improper purpose. 

Additional documents were released to the applicant during the course of the reviews.  Based on the evidence of searches and inquiries conducted by the Department, and the statutory declarations of several officers concerning the existence of particular documents and code-named files, AC Barker was satisfied that those searches and inquiries had been reasonable in all the circumstances of the case, and that there were no further searches which the Department could be requested to undertake.