Price and Nominal Defendant
(1995 S0002, 30 June 1999)
The central issue in this case was whether documents held by a firm of solicitors, and by a firm of loss assessors, both of which had acted for the Nominal Defendant, were "documents of the agency" (i.e., the Nominal Defendant) as defined in s.7 of the FOI Act, and hence whether the Nominal Defendant was obliged to deal with those documents when responding to the applicant's FOI access application for all documents relating to his claim file with the Nominal Defendant. The Information Commissioner stated that the ruling test imposed by the definition of "document of an agency" is comprised in the words "in the possession or under the control of an agency", with the remaining words of the definition illustrating, rather than extending, the ruling test. The Information Commissioner indicated that the words "under the control" convey the concept of a present legal entitlement to control the use or physical possession of the document, and that for a document to be under the control of an agency, the agency must have a present legal entitlement to take physical possession of the document.
With regard to documents on the solicitors' file, the Information Commissioner distinguished between documents in respect of which the Nominal Defendant had rights of ownership, and documents in respect of which the Nominal Defendant merely had a right to obtain copies, on payment of a charge for provision of copies. In doing so, the Information Commissioner took guidance from the judgment of the New South Wales Court of Appeal in Wentworth v De Montfort & Ors (1988) 15 NSWLR 348 where it was held that, applying principles that are referable to the relationship between a professional person and his/her client, the client has a legal right of ownership to certain documents on a solicitors' file. The Information Commissioner found that any document on the solicitors' file, in respect of which the Nominal Defendant had legal rights of ownership, was a "document of the agency" (i.e., of the Nominal Defendant) and hence subject to the application of the FOI Act, but that other documents on the solicitors' file were not.
Applying that principle, the Information Commissioner found that a number of documents (correspondence, and records of telephone communications, between the solicitors and the Nominal Defendant, internal records and memoranda as to work to be done, accounts and receipts pertaining to Counsel, and to town agents of the solicitors) were not "documents of the agency", but that documents involving counsel (apart from accounts and receipts), communications with third parties and communications with town agents (apart from accounts and receipts) were "documents of the agency", and subject to the application of the FOI Act.
As to the loss assessor's file, the Information Commissioner found that considerations governing the relationship of principal and agent applied, so that all documents brought into existence by the agent during the agency relationship belonged to the principal, apart from documents prepared by the loss assessors for their own purposes: McIlwraith McEacharn Operations Limited v C.E. Heath Underwriting & Insurance (Australia) Pty Limited (No.2) [1995] 1 Qd R 363 at p.376. The Information Commissioner concluded that most of the documents on the loss assessors' file were "documents of the agency", and subject to the application of the FOI Act.
Apart from a small amount of matter which the Information Commissioner found to be exempt under s.44(1) or s.46(1)(a) of the FOI Act, the Information Commissioner found that all of the documents in issue which were subject to the application of the FOI Act attracted legal professional privilege and were exempt matter under s.43(1) of the FOI Act. In making that finding, the Information Commissioner rejected the applicant's contention that there was prima facie evidence that the communications comprised in the matter in issue were made in furtherance of an illegal or improper purpose, so as to disqualify them from attracting legal professional privilege.
