Price and Department of Justice and Attorney-General
(2000 S0295, 12 March 2002)
The applicant sought access to all documents relating to certain litigation in which Crown Law had represented the QPS and the Department of Justice and Attorney-General (DJAG). The documents in issue consisted of Crown Law billing work sheets, memoranda of fees, and invoices/draft invoices, as well as internal file notes and correspondence between Crown Law and the QPS, and between Crown Law and the DJAG. The applicant also raised 'sufficiency of search' issues.
The DJAG was asked to provide details of the particular searches that it conducted in order to locate all documents falling within the terms of the applicant's FOI access application, and the results of those searches. The DJAG provided a description of all files held by it that related to the applicant, together with a history of which particular files had been considered in response to the various FOI access applications that the applicant had made to the DJAG since 1996. An additional file was located and the applicant was given access to some documents from that file. Another file, numbered 18 by the DJAG, could not be located.
Applying the principles detailed in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, the Assistant Information Commissioner found that there were no reasonable grounds for believing that additional documents falling within the terms of the applicant's FOI access application existed in the possession, or under the control, of the Department. As to file 18, the Assistant Information Commissioner was satisfied the search efforts made by the DJAG in an effort to locate that file had been reasonable in all the circumstances of the case.
The Assistant Information Commissioner also decided that those parts of the billing documents which described or disclosed the particular nature of the professional legal advice or assistance which Crown Law had provided to the QPS and/or the DJAG in the course of acting for those agencies in litigation and/or in providing professional legal advice, qualified for exemption from disclosure under s.43(1) of the FOI Act. In relation to the internal file notes and correspondence between Crown Law and the QPS, and between Crown Law and the Department, the Assistant Information Commissioner decided that each comprised a record of a confidential communication made for the dominant purpose of giving or receiving professional legal advice or assistance, or for use in legal proceedings, and that accordingly, each of those documents attracted legal professional privilege and qualified for exemption from disclosure under s.43(1) of the FOI Act.
The applicant claimed that legal professional privilege could not apply to any of the documents in issue because they were created in furtherance of a crime or fraud. The Assistant Information Commissioner was not satisfied from examination of the contents of the documents in issue, and of the material put forward by the applicant, of the existence of a prima facie case that the documents had been brought into existence in furtherance of an illegal or improper purpose.
The Assistant Information Commissioner also decided that those parts of the billing documents which disclosed the specific hourly rates charged by Crown Law officers qualified for exemption under s.45(1)(c) of the FOI Act.
