Thorsen and Department of Justice and Attorney-General

Thorsen and Department of Justice and Attorney-General
(2004 F0737, 30 June 2006)

Sufficiency of search

The applicant sought access to documents relating to a civil action against the Commissioner for Railways which was heard in 1981, and to a subsequent appeal and representations to the Department.  Assistant Commissioner Barker was satisfied that some of the documents had been returned to another agency or destroyed in accordance with retention and disposal schedules; that other documents, which should still exist, could no longer be identified or located; and that the searches and inquiries by the Department to locate those documents had been reasonable in all the circumstances of the case.

s.43(1) – legal professional privilege

AC Barker found that the majority of the matter remaining in issue was exempt from disclosure under s.43(1) of the FOI Act, as it related to the provision of legal advice in relation to the applicant's civil case, appeal and representations to the Department.  The applicant raised a number of public interest arguments in favour of disclosure of the matter in issue to him, but such arguments are not relevant to the application of s.43(1).  AC Barker also found that there was no evidence of improper purpose which might displace the privilege attaching to the matter in issue.

s.42(1)(c) – danger to the life or physical safety of a third party

The third party (who was at one time the applicant's solicitor) objected to the disclosure of notes of conversations between himself and Crown Law officers, because he alleged that in 1981 the applicant had made threats to harm certain persons.  AC Barker found that, in the absence of any evidence that the applicant had made or attempted to carry out those threats, or that he had ever behaved in a violent manner, there were no reasonable grounds for believing that the third party would be endangered by release of that matter.

s.12 – documents of the Commissioner

AC Barker found that a small number of documents, comprising correspondence from this office to the Department, fell within the definition of "documents of the commissioner" and were therefore excluded from the operation of the FOI Act.  AC Barker found that the Information Commissioner had no jurisdiction to review the Department's refusal to provide copies of those documents to the applicant.