Smith and Department of Administrative Services
(1993 S0002, 30 June 1993)
Mr Smith had requested access to all documents held by the Department comprising communications between that Department and the Crown Solicitor's Office relating to a particular dispute between himself and the Department. The Department identified one document as being responsive to the terms of the access application, and refused to grant access to that document on the basis of the s.43 ('legal professional privilege') exemption. Mr Smith applied for an external review of the Department's decision in respect of that document, and challenged the sufficiency of the Department's search for documents responsive to his access application.
In the Information Commissioner's decision, the preliminary issue of the Information Commissioner's jurisdiction to entertain an application for review involving such 'sufficiency of search' allegations was addressed, and the Information Commissioner's powers on review (assuming that jurisdiction could be established). After examining relevant cases decided under the Commonwealth and Victorian FOI legislation, the Information Commissioner determined that ss. 72(1) and 88(1) of the FOI Act, when read together, confer on the Commissioner the jurisdiction to entertain such applications, and the power to direct that further steps be taken in an effort to locate documents responsive to the application. In the particular circumstances of the present case, one additional document was located as a result of further inquiries.
The Information Commissioner's decision also contains a discussion of the legislative history and intent of the s.43 exemption in the FOI Act, and a summary of the general principles which can be extracted from the recent line of decisions of the High Court of Australia concerning the nature and scope of 'legal professional privilege' at common law. On the basis of the Information Commissioner's inspection of the two documents in issue, the Information Commissioner determined that both fell squarely within the protection afforded by the s.43 exemption, and in doing so found against the arguments advanced by the applicant concerning waiver of the privilege, and entitlement to access on the basis of personal interest or public interest.