NSW Government Bulletin - 29 July 2015

In a recent decision of NCAT, CCB v Department of Education and Communities [2015] NSWCATAD 154, the Tribunal found that an agency wishing to assert client legal privilege as a basis for resisting disclosure of a communication with an in house lawyer was required to lead evidence as to the independence of the in house lawyer.

The Department of Education and Communities (DEC) had declined a GIPA request in relation to several categories of documents.  The relevant parts of the decision concern two lines redacted in a diary note made by a school principal of a conversation with an in house lawyer employed by the DEC, in which legal advice was said to be recorded.  The DEC had refused access to the redacted text on the basis that it was subject to a conclusive presumption of an overriding public interest against disclosure because that information would be privileged from production in legal proceedings on the ground of client legal privilege within clause 5 of Schedule