A cautionary tale about sharing legal advice between agencies

Has your agency ever shared legal advice with another agency? If so then the decision of Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353, will be of great interest.

The documents in question, subject of a Government Information (Public Access) Act 2009 (NSW) (GIPA Act) application, comprised information held by Transport for NSW and Roads and Maritime Services on the Exposure Draft Coastal Management Bill. RMS made claims of legal professional privilege over certain documents.

Waiver by inadvertent disclosure

In responding to the GIPA application, RMS had inadvertently disclosed documents which described the contents of various legal advice sought and obtained from the Crown Solicitor’s Office by the Office of Environment & Heritage (OEH), certain of which was forwarded by email from OEH to RMS.

The Applicant argued that legal professional privilege had been waived, however, the Member was satisfied that a reasonable person would have realised that the disclosure of the email attachments was inadvertent and in error, by reason of the presentation of the attachments and the supplementary decision which stated that access was denied. Accordingly, neither the CSO nor RMS acted inconsistently with objecting to the adducing of the evidence.

Waiver by sharing among agencies

At the hearing and in written submissions, the Applicant had contended that OEH was the client, but had regard to RMS’ conduct, as if RMS was the client. After the Member had reserved, it became apparent that there was an issue around the disclosure of the advice to RMS and whether that conduct was inconsistent with maintaining privilege. Further submissions on this issue were sought.

The Applicant submitted that:

  • the failure of the OEH to object to the production of the advice by RMS amounted to an abandonment of privilege
  • the advice had been emailed and this was inconsistent with the maintenance of confidentiality.

The Member disagreed with the first proposition on the basis that it was the agency holding the information that was able to raise the objection. The failure to object by a stranger to the proceedings would rarely amount to waiver.

On the second submission, the Member found that the authority relied on by the Applicant was not authority for the proposition that emailing a document would always be inconsistent with maintaining privilege.

However, the Member took issue with RMS’ position that there was no evidence that the documents had been knowingly and voluntarily shared, other than with employees of the State of New South Wales, which was the relevant client for the purposes of the Evidence Act 1995 (NSW).

The Member noted that RMS, as a statutory corporation, was a separate legal entity. As such, the issue became one of whether the state sharing advice with a statutory corporation attracts the operation of s 122(3) of the Evidence Act. The Member referred to Court of Appeal authority (State of New South v Public Transport Ticketing Corporation [2011] NSWCA 60) that the State and a statutory corporation representing the Crown are to be treated as separate persons for the purposes of another section of the Evidence Act and concluded that this also held for s 122(3).

The circumstances permitted the Member to examine the issue another way.

All but one of the disclosures had occurred in the context of an interagency working group, which could also be considered to be the client. In this regard it was noted that reference was made within certain of the documents to the interagency working group having sought the advice. RMS formed part of the interagency working group.

However, this analysis could not be applied to the CSO advice which had been emailed to RMS and had been sought before the interagency working group had been established. That disclosure was held to be a knowing and voluntary disclosure of the information to another person.

Implications

Where there is real utility in sharing legal advice between agencies, formal structures for interagency relations must be in place to establish who the client is before requesting legal advice. A statutory corporation as a legal person may in fact waive legal professional privilege by sharing advice with another agency, to the extent they are separate legal persons and not the same client.