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NSW Court of Appeal decides "no leaning" in favour of disclosure

By Peter Timmins

A decision handed down by the NSW Court of Appeal this week is the latest in a long line of cases involving an applicant seeking access to documents held by Macquarie University and claimed exempt on legal professional privilege grounds. The Court dismissed the applicant's appeal and awarded costs to the University.

Two important points emerge from the Court's unanimous decision.

While the NSW Freedom of Information Act enshrines a "general policy of disclosure" of official information, the exemption in Clause 10 "should be construed without any prior inclination to construe it narrowly, nor any inclination to construe it broadly" (para. 46-48). So the law as it stands requires no 'leaning' in favour of disclosure.

The Court also rejected an argument that the words in the exemption "would be privileged from production in legal proceedings" required a decision maker (in this case the Tribunal) to have regard to the standard of evidence required by courts and the procedures courts follow when claims of legal professional privilege are determined (para. 49-56). Parliament could not have intended an agency decision maker to receive evidence on oath, undertake cross examination or other steps involved in court proceedings in deciding a privilege claim. The task was simply to make up his or her own mind on the basis of available information:

"Clause 10 does not change its meaning depending upon whether it is being applied by an officer of the agency, or by the Tribunal. The task of the Tribunal in reviewing a claim of legal professional privilege made by an agency is to make up its own mind, on the basis of such information as it has available to it, about whether the matter contained in a document has the characteristics that would make it privileged...."

The Court also rejected arguments that an error of law had occurred in the way in which the Appeal Panel had considered whether in this case privilege had been lost because advice had been sought for an improper purpose.

Full post as published by Open and Shut on March 13, 2008 (boomark / email).