Shaw and Esk Shire Council

Shaw and Esk Shire Council
(2004 F0053, 31 August 2005)

The applicant sought access to documents held by the respondent concerning the respondent's prosecution of him in respect of his keeping several dogs at his property. The applicant raised concerns that additional responsive documents were held by the respondent and had not been provided to him in response to his FOI access application. The respondent conducted further searches and located additional responsive documents.

Applying the principles stated in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, Assistant Commissioner Barker was satisfied that the searches and inquiries by the respondent in an effort to locate any additional responsive documents had been reasonable in all the circumstances of the case, and that there were no reasonable grounds for believing that any other responsive documents existed in the respondent's possession or under its control.

Legal professional privilege – improper purpose exception

The matter in issue comprised draft documents and letters passing between the Council and its solicitors relating to the applicant's keeping of dogs at his property. 

AC Barker found that the matter in issue comprised confidential communications between solicitor and client made for the dominant purpose of seeking or giving legal advice or professional legal assistance, and attracted legal professional privilege.  Applying the principles stated in Murphy and Queensland Treasury (No. 2) (1998) 4 QAR 446 at paragraph 38, AC Barker found that the documents in issue did not, on their face, indicate that they were made in preparation for, or furtherance of, an illegal or improper purpose. Moreover, there was nothing before AC Barker, except the applicant's unsupported assertion, to suggest that the Council's prosecution of him (or the preceding amendment of the local law) was, in fact, unlawful.  Accordingly, AC Barker considered that the improper purpose exception did not operate to displace the privilege which existed in the documents remaining in issue, and she decided that the matter in issue was exempt under s.43(1) of the FOI Act.

Sufficiency of search