What constitutes a waiver of privilege under the GIPA Act?
In Lipscombe v Blue Mountains City Council [2020] NSWCATAD 121, an individual (Applicant) applied to Blue Mountains City Council (Council) under the Government Information (Public Access) Act 2009 (GIPA Act) seeking access to reports relating to independent investigations into asbestos management and risk issues involving the Council.
The Council refused access to two reports (IR1 and IR2) that fell within the scope of the access application on the basis that there was a conclusive presumption against disclosure of the information as it was privileged from production in legal proceedings on the ground of legal professional privilege.
The applicant applied for an external review of the Council’s decision by the Information Commissioner, who concluded that the decision was not justified and recommended that the Council make a new decision. The Council again refused. The individual then commenced an action in the NSW Civil and Administrative Tribunal (Tribunal) seeking a review of the Council’s decision.
Background
The Council retained a law firm (advising firm) as one of its external solicitors. In November 2017, the Council instructed the advising firm to engage suitably qualified investigators (investigating firm) to carry out an investigation relating to the Council’s management of asbestos. In response, the advising firm engaged the services of the investigating firm, who wrote the two reports in question. In preparing these reports, the investigating firm consulted with a number of stakeholders and sections of the report were disclosed.
The applicant contended that:
Legislative provisions
Section 5 of the GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Clause 5 of Schedule 1 of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
Section 97 of the GIPA Act places the onus of establishing the claim for legal professional privilege on the agency, which is the Council.
The relevant tests for determining privilege and waiver of that privilege are contained in the Evidence Act 1995.
In refusing access to the two reports on the basis that the documents were subject to legal professional privilege, two issues arise for consideration:
Did the privilege attach to the documents when they were created?
Under sections 118 and 119 of the Evidence Act 1995, the essential elements for determining privilege are:
The Tribunal did not agree with the applicant’s contention that the investigating firm was retained by the Council and that the advising firm was merely acting as the Council’s agent when it engaged the investigating firm.
The Tribunal was satisfied that a client-lawyer relationship existed between the Council and the advising firm when the investigating firm was engaged, and that the investigating firm was retained for the dominant purpose of providing legal advice to the Council.
The Tribunal was further satisfied that the investigating firm had an obligation of confidentiality to the advising firm, which arose from the client-lawyer relationship. The Tribunal found that the investigating firm was subject to an obligation to keep the reports confidential and not provide them to anyone except for the advising firm.
The reports were created in the context of that relationship, in that the reports were commissioned by the advising firm for the purpose of providing the Council with legal advice and/or legal services in respect of anticipated litigation. The Tribunal found that the reports were brought into existence for the dominant purpose of assisting the advising firm to provide legal advice or services to the Council.
The Tribunal, therefore, found that the reports were subject to legal professional privilege when they were created.
Has privilege been waived?
The more pressing issue at hand is whether this privilege was waived, which would, under clause 5 of Schedule 1, eliminate the conclusive presumption of an overriding public interest against disclosure of the information. Where a client or their agent deliberately and intentionally discloses confidential information, legal professional privilege will be waived.
In Attorney General (NT) v Maurice and Others (1986) 161 CLR 475, which was considered by the Tribunal, the High Court outlined a test which stated that implied waiver occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege. However, in Mann v Carnell (1999) 201 CLR 1, which the Tribunal also turned its attention to, the High Court considered circumstances in which legal professional privilege will be impliedly waived, and noted that where particular conduct is inconsistent with the maintenance of the confidentiality which legal professional privilege seeks to protect, the law recognises the inconsistency and determines its consequences, and that inconsistency, rather than fairness, is the appropriate test.
The Tribunal did not agree with the applicant’s contention that provision of the reports to stakeholders during consultation brought about a waiver of the privilege, as the reports were made available on the understanding that they were privileged and confidential and the provision of the reports in these circumstances did not amount to acts inconsistent with the maintenance of the privilege. The Tribunal was not satisfied that privilege had been waived, and therefore, clause 5 of Schedule 1 of the GIPA Act applied. The Tribunal held that it was conclusively presumed that there was an overriding public interest against disclosure of the information, and no further assessment or weighting of considerations in favour of release occurred.
The Council’s decision to refuse to provide access to the information was held to be the correct and preferable decision and was affirmed by the Tribunal.
Authors: Michael Selinger & Rebecca Weakley
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Regulations and other miscellaneous instruments
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