Mr X and Department of Transport

• Judge: Senior Investigator
• Judgment Date: 13 April 2022
• Case Outcome: The Senior Investigator varied the decision of the Department. While he found that the majority of the records were exempt under sections 31(1)(a), 35(1)(b) and 37(1), he directed the release of a small amount of information redacted from two of the records at issue.
• Record Number: OIC-111669-S0Z3J6
• Respondent: Department of Transport
• Court: Information Commission

Whether the Department was justified in refusing access, under various provisions of the FOI Act, to records relating to its decision not to appoint the applicant to a particular role

13 April 2022

Background

The applicant in this case applied for a particular role within the Department. While he was offered and accepted the position, the Department ultimately decided not to proceed with his appointment. On 4 June 2021, he sought access to all records the Department held relating to him on the matter.

On 28 July 2021, the Department part-granted the applicant’s request, releasing some records and refusing access to a number of other records, either in whole or in part, under sections 31, 35, 36 and 37 of the FOI Act. On 29 July 2021, the applicant sought an internal review of the Department’s decision. He also argued that additional relevant records should have been considered for release.

On 13 August 2021, the Department varied its original decision, part-releasing two additional records and identifying 10 more records as falling within the scope of the request, to which it refused access under section 31 (making a total of 86 records identified by the Department as falling within the scope of the applicant’s request). On 16 August 2021, the applicant sought a review by this Office of the Department’s decision. He maintained that the Department had not considered all relevant records for release.

During the course of the review, the Investigator considered that the release of one record (see below) that the Department withheld under sections 35(1)(a) and 36(1)(b) had the potential to affect the interests of a third party organisation. Accordingly, he invited the organisation to make a submission on the matter of the release of the record. A submission was duly received.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the applicant and the Department as set out above and to the communications between this Office and the applicant, the Department, and the relevant third party organisation on the matter. I have also had regard to the contents of the records at issue.

I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedules of records it prepared when processing the request.

Scope of the Review

While the Department redacted certain information from records 1, 2, and 8, it indicated in its schedule of records that the redacted information was not relevant to the applicant’s request. While I agree that the information redacted from record 8 is not relevant as it has nothing to do with the applicant, I am satisfied that records 1 and 2 are relevant in their entirety. As such, while record 8 can be excluded from the scope of this review, records 1 and 2 fall within the scope of this review. I also note that record 29 is an exact copy of record 28 and record 71 is an exact copy of record 70. Accordingly, I have removed records 29 and 71 from the scope of the review.

Moreover, in relation to the additional records that the applicant argued ought to exist, I consider the Department’s position to amount to an administrative refusal of any further relevant records under section 15(1)(a), and examine this aspect of the applicant’s case below under this provision of the Act.

Accordingly, this review is concerned with

i. whether the Department was justified in refusing access, under various provisions of the Act, to records 10 to 15, 18, 19, 26, 28, 35 to 38, 40, 41, 54, 57, 58, 65, 67, and 69, 70, 72, and 77 to 86 and in redacting certain information from records 1 to 3, 6, 25, and 43, and
ii. whether the Department was justified in effectively refusing to grant access, under section 15(1)(a) of the Act, to any other relevant records on the ground that no further relevant records exist or can be found.

Analysis and Findings

While I am required by section 25(3) of the FOI Act to take all reasonable precautions during the course of a review to prevent the disclosure of exempt information, I think it would be useful to set out a brief background to the records at issue, the details of which I consider to be known to the applicant having regard to the records released by the Department to date.

As I have mentioned above, the applicant applied for a particular role within the Department. While he was initially offered and accepted the position, the Department received information relating to the applicant and his previous employment that caused it to reconsider its offer of employment. As a result of the information received, the Department sought and received legal advice in relation to issues arising concerning the applicant’s proposed employment. In a letter dated 1 April 2021 (record 17), the Department informed the applicant that it had received information concerning the termination of his previous employment with a named company. It provided an outline of allegations made and it invited him to comment on the issues arising before making a final decision on whether to proceed with his employment. The applicant submitted a substantive response on 2 April 2021 (record 21) and again on 21 April 2021 (record 39).

In a further letter dated 23 April 2021 (record 45), the Department informed the applicant that representatives from the company spoke with one of its officials with regard to the reasons for his resignation. It requested the applicant to engage directly with the company on the matter. It also offered him a further opportunity to make submissions on the matter. The applicant responded on 29 April 2021 (record 47) and 5 May 2021 (record 49). On 3 June 2021, the Department informed the applicant that it would not be proceeding with his appointment (record 75)

Section 31(1)(a)

As many of the records have been withheld under section 31(1)(a) of the Act I consider it appropriate to examine the applicability of that exemption in the first instance. The Department relied upon section 31(1)(a) to refuse access to records 10 to 14, 18, 19, 26, 35 to 38, 40, 41, 54, 57, 58, 65, 67, 69, 70, 72, and 77 to 86, and to redact certain information from record 25. In its submissions to this Office, the Department said it had also refused access to record 29 in part under section 31(1)(a). As I have indicated above, I have excluded record 29 from the scope of the review as it is an exact copy of record 28. Accordingly, while the Department did not specifically cite section 31(1)(a) as a ground for refusing any part of record 28, I will consider whether the exemption applies given its arguments in respect of record 29.

Section 31(1)(a) provides for the mandatory refusal of a request where the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP).

LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege) and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The Department argued that litigation privilege attached to the redacted part of record 25 and to record 28 and that advice privilege attached to all of the remaining records to which access was refused under section 31(1)(a). I will deal with the claim of legal advice privilege first.

The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Furthermore, this Office is of the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

During the course of the review, the Investigating Officer sought clarification from the Department as to the basis on which it argued that section 31(1)(a) applied to three specific records that, on their face, did not appear to attract LPP, namely records 18, 65, and 67. In response, the Department explained that record 18 was drafted by its legal adviser for the purposes of briefing the Minister for Transport. It explained that record 65 was a modified version of Record 18, brought up to date with the inclusion of certain additional information that had come to light since the original record was drafted and that record 67, a document entitled “Legal Briefing”, was created by the Department’s HR Section and provided to the Office of the Attorney General for the purposes of briefing legal counsel.

Having considered the nature and contents of the records at issue and the details of the Department’s submissions, I find that section 31(1)(a) applies to records 10 to 14, 18, 19, 26, 35 to 38, 40, 41, 54, 57, 58, 65, 67, 69, 70, 72, and 77 to 86. I should add, for the sake of completeness, that a number of the records concerned were created by the Office of the Attorney General and as such, the Act does not apply to those records pursuant to section 42(f) of the Act. That section provides that the Act does not apply to a record created by the...