Fight over FOI documents continues

A resident battling to get copies of council’s asbestos reports has vowed to continue the fight, despite his latest set-back.

Mark Lipscombe

Mark Lipscombe

Mark Lipscombe, a Greens Party member from Mt Victoria applied to see the reports under GIPA (Government Information Public Access) legislation but was knocked back by council. He appealed to the Information and Privacy Commission (IPC), which last month ordered council to reconsider its decision.

Last week, council told Mr Lipscombe it still refused to release them.

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

But the IPC found Mr Tooma wasn’t engaged as a lawyer to provide legal advice, rather as an independent investigator which was not a “client/lawyer relationship”. 

Council’s reconsidered decision rejected the IPC’s findings.

A council officer wrote to Mr Lipscombe, noting the IPC had concluded that legal professional privilege did not justify refusing access. But she had reviewed the IPC advice and, in particular, any criteria for the existence of such privilege.

“I have … concluded that the nominated criteria are satisfied. It is therefore the council's view that legal professional privilege does exist in the documents to which access is sought.”

Mr Lipscombe has now lodged a further appeal to the NSW Civil and Administrative Tribunal. A case management conference will take place on January 22.