VSC and The Public Trustee of Queensland
(210360, 30 June 2008)
Section 43(1) Matter affecting legal proceedings
The applicant applied to the Public Trustee of Queensland (PTQ) for a copy of her file. The PTQ located three files responsive to her application and decided to grant the applicant full access to one file and partial access to the remaining two files on the basis that most of the documents contained within those files qualified for exemption under section 43(1) of the Freedom of Information Act 1992 (Qld) (FOI Act). This decision was affirmed on internal review.
Although the applicant sought documents concerning legal proceedings relating to her, the PTQ claimed that as it had been appointed by the Guardianship and Administration Tribunal to act as the applicant’s administrator in these legal matters, it was the client for the purposes of legal professional privilege and in carrying out its duties as an administrator had instructed its own solicitor (the Official Solicitor to the PTQ).
In examining the relationship between the PTQ and its solicitor, Assistant Commissioner Henry examined relevant provisions of the Public Trustee Act 1978 (Qld) and was satisfied that a valid solicitor-client relationship existed between the PTQ and its solicitor, which entitled the PTQ to the benefit of legal professional privilege.
In reviewing the documents claimed by the PTQ as exempt from disclosure under section 43(1) of the FOI Act, Assistant Commissioner Henry grouped the documents into three categories - confidential communications, research material and other documents.
Assistant Commissioner Henry found that as the first category comprised confidential communications between the PTQ and its solicitor and/or relevant third parties, it qualified for exemption under section 43(1) of the FOI Act.
With reference to the case of Propend Finance P/L & ors v Australian Federal Police Commissioner & Ors (1995) 128 ALR 657, Assistant Commissioner Henry found that the second category comprising research material gathered by staff of the Official Solicitor (using their skill and knowledge) also qualified for exemption under section 43(1) of the FOI Act.
Assistant Commissioner Henry decided that the category 3 documents did not qualify for exemption under section 43(1) of the FOI Act.
Section 45(1)(c) Matter relating to trade secrets, business affairs and research
However, Assistant Commissioner Henry found that parts of some category 3 documents which comprised billing information of the Official Solicitor, qualified for partial exemption under section 45(1)(c) of the FOI Act.
In forming this view Assistant Commissioner Henry compared the billing operations of the Official Solicitor with those of Crown Law, an entity which the Information Commissioner has previously decided operates in a commercially competitive environment for the purposes of section 45(1)(c) of the FOI Act. See Kelly and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 13 March 2002) and Macrossan and Amiet and Queensland Health and Ors (Unreported, Queensland Information Commissioner, 27 February 2002).
