Asbestos reports not cover by legal privilege, commissioner rules

Council’s attempts to keep secret its asbestos reports have been dealt a blow after a freedom of information victory by a Mt Victoria resident.

Mark Lipscombe, who applied to see the reports and was knocked back by council, appealed to the Information and Privacy Commission (IPC), which has ordered council to reconsider its decision.

“This is a major victory for the community of the Blue Mountains who want to know what our council actually did and didn't do with regard to asbestos,” said Mr Lipscombe. “The council declared in December 2017 that the reports would be made public and that this was a reason they should not be sacked by the minister. Then they changed their minds and have cloaked these reports in secrecy.”

Council had argued before the IPC that the reports, which were prepared by Michael Tooma of Clyde and Co, constituted “confidential communications between council and its legal representative” and so were protected under legal professional privilege.

But the IPC review officer, Catherine Nguyen, said she was “not satisfied that Mr Tooma was engaged as a lawyer to provide legal advice and/or services. Rather, he was engaged to conduct an independent investigation. This does not constitute a client/lawyer relationship.” 

She also noted that at an extraordinary meeting on December 15, 2017, council agreed to make the reports public.

Council subsequently backed down from that undertaking. After much to-ing and fro-ing, councillors eventually resolved to release summaries of the reports, 31 days after the May 29 council meeting.

Just days before that June deadline, the local government minister, Gabrielle Upton, announced the public inquiry into council.

Council reacted again, saying: “The release of the summary could be seen to conflict with the conduct of the Inquiry.”

Its final position was that a summary of the reports would be prepared but that council would seek the views of the inquiry commissioner, Richard Beasley, SC, before deciding to release the information publicly.

Council has been given until October 25 to respond.

Cr Kerry Brown has called for an extraordinary meeting to consider the IPC findings. It will be held tonight.

She said: “As the IPC has made clear, council cannot have its cake and eat it too. Either this was an investigation into matters of public interest and the ... community has the right to know or it was for legal advice on council liabilities and must therefore be kept secret.

“I voted on the investigation for the first purpose and I am delighted that the IPC have upheld this as the primary intent.”