Aus-ship P & I, CR Cox & Associates, London Offshore Consultants and Australian Maritime Safety Authority and Baosteel International Trade Corporation
[2001] AATA 828
•28 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 828
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2000/60
GENERAL ADMINISTRATIVE DIVISION )
Re AUS-SHIP P & I C R COX & ASSOCIATES LONDON OFFSHORE CONSULTANTS COCKS MACNISH
Applicants
And AUSTRALIAN MARITIME SAFETY AUTHORITY
Respondent
And BAOSTEEL INTERNATIONAL TRADE CORPORATION
Party JoinedDECISION
Tribunal Associate Professor S D Hotop, Senior Member
Date28 September 2001
PlacePerth
Decision The decision under review is affirmed.
...........(sgd S D Hotop)...........
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – "reverse freedom of information" – exempt documents – documents and video tapes relating to shipping casualty – whether disclosure of documents would disclose information having commercial value that would be, or could reasonably be expected to be, destroyed or diminished if disclosed – information concerning business, commercial or financial affairs of organisation or undertaking – whether disclosure would, or could reasonably be expected to, unreasonably affect organisation or undertaking in respect of its lawful business, commercial or financial affairs – whether disclosure could reasonably be expected to prejudice future supply of information to Commonwealth or agency
Freedom of Information Act 1982 ss3(1), 3(2), 11(1), 43(1)(b), 43(1)(c)(i), 43(1)(c)(ii), 58(1), 58(2), 59(1), 59(2), 61(1), 61(2)
Attorney-General's Department and Australian Iron and Steel Pty Ltd v Cockcroft (1996) 10 FCR 180
Mitsubishi Motors Australia Ltd v Department of Transport (1986) 12 FCR 156
Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111
REASONS FOR DECISION
28 September 2001 Associate Professor S D Hotop, Senior Member
The applicants have applied to the Tribunal, pursuant to s59(1) of the Freedom of Information Act 1982 ("FOI Act"), for a review of a decision of an officer of the respondent ("AMSA"), made on 22 February 2000, that certain documents, access to which had been requested under the FOI Act by the party joined, are not exempt documents under s43 of that Act.
At the hearing the applicants were represented by Ms P Saraceni, solicitor, AMSA was represented by its General Counsel, Ms B Pearson, and the party joined was represented by Mr G Abbott of counsel. The Tribunal had before it the statement and documents ("T documents") lodged by AMSA pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and an affidavit of Ajay Tandon sworn on 28 June 2000 tendered in evidence by the applicants (Exhibit A1). There was no oral evidence.
BackgroundThe following background to the present application for review appears from the T documents.
On 19 October 1999 AMSA received a valid request made on behalf of the party joined under s15 of the FOI Act for access to all documents (including video tapes) in the possession of the respondent relating to a casualty involving the vessel MV "Vakis T" ("the vessel") and the subsequent detention of the vessel by AMSA in the port of Dampier, Western Australia in April 1999.
Following receipt of the abovementioned request for access to documents, AMSA, pursuant to s27(1) of the FOI Act, contacted various organisations and invited them to make submissions in support of the contention that the documents and video tapes, the subject of that request for access, are exempt documents under s43 of the FOI Act.
By letter dated 14 February 2000 Cocks Macnish, Barristers & Solicitors, made submissions to AMSA on behalf of all the applicants in support of the contention that the relevant documents are exempt documents under s43 of the FOI Act. Those submissions were as follows:
"1. Background Summary
1.1We and all of our above referred clients, being the recipients of the subject FOI Notices, have from virtually the occurrence of this casualty to the 'Vakis T' represented the Owners of that vessel and her Protection and Indemnity Association, The North of England P&I Association ('the Club'). The FOI Notice recipient clients as marine surveyors, engineers, experts, and lawyers have at all material times been involved in order to see to the best interests of the Owners and the Club in all matters concerning this serious casualty. The Club insures on a mutual basis the liabilities of the Owners associated with the operation of the vessel.
1.2The circumstances giving rise to the FOI Notices are common to each recipient in that they involve the structural damage sustained by the 'Vakis T', which necessitated her return to Dampier in a fully loaded condition. She was carrying a cargo of 127,000 MT of iron ore for discharge in China. Ultimately, following considerable technical investigation, the vessel after lying at anchor for 5 months off Dampier arrived at the discharge point of Beilun on 18th October 1999. She made the discharge port under her own power escorted by a tug. On arrival in China, action was taken by cargo interests under the Bill of Lading contract of carriage. The cargo interests have also taken action in the Federal Court of Australia (Perth) in Admiralty. The Australian proceedings are in suspense by agreement between the parties.
1.3The carriage of this cargo was evidenced by Bill of Lading which (inter alia) provided for London arbitration in the event of any dispute. I am instructed that Arbitrators have been appointed in London by both Owners and cargo claimants. So that there are currently 3 sets of proceedings on foot.
1.4The involvement of all of the subject FOI Notice recipients has been with a view to assisting in resolving the complicated legal and technical issues which arose from this casualty. This was a casualty which appeared to have the potential to result in serious loss to Owners and cargo interests and to adversely affect other local parties, such as the Dampier Port Authority, if not satisfactorily resolved. It was a casualty which required careful and thorough technical consideration of very complicated engineering and naval architecture matters. Other parties contributing to the ultimate resolution of the matter were:
(1)The vessel's Classification Society – Polish Register;
(2)Flag State – Cyprus;
(3)Hull and Machinery underwriters.
2. Basis For Claim From (sic) Exemption From Disclosure Under Section 43 of FOI Act
2.1 Ourselves and our clients must have regard to the interests of our Owner principals in seeking to justify exemption. It is the Owners' position in relation to the subject matter of the FOI Notices and the effect thereof that is relevant with respect to the exemption grounds set out in Section 43 of the Act. The responses of ourselves and each of the FOI Notice recipients is the same and need not be separately dealt with.
2.2 Material has been provided during the course of a crisis which Owners reasonably believed, in a spirit of cooperation at the time, would remain confidential.
2.3 If information of this nature, which is potentially or actually sensitive, is accessible to claimants, or even those without a direct interest, then in future crises it is less likely that shipowners involved will be forthcoming and open with a view to resolving crises. Compelling the release of such material will discourage open disclosure in times when it is essential for all participating parties to work together. In this regard, it is submitted that a serious shipping casualty of this nature is unique and the expectation of confidentiality is more (sic) important. A serious shipping crisis is unique because of:
2.3.1 Potential magnitude of the casualty/disaster;
2.3.2The fact that with proper management from all concerned serious consequences could be averted or minimised;
2.3.3The fact that so many parties have a critical interest in the outcome:
- Port owners
- Port lessees/shippers- Other vessels
- Local authorities
- Regulatory bodies such as AMSA and DOT
- Cargo owners
- Vessel charterers·Oil pollution regulators
etc
2.4 As already mentioned, proceedings are on foot in China, London and in Perth. These proceedings have not resulted in discovery of documents. This may occur. The present active proceedings are in the Maritime Court of Nantong in China. I am informed these proceedings do not include the process known in our and English Courts as Discovery. Therefore a list of what documents would be otherwise privileged has not been made. The China proceedings involve (inter alia) a contest to the jurisdiction of that Court. These proceedings can be summarised as follows:
2.4.1On 15th October 1999, MV 'Vakis T' ('the Vessel'), laden with 127,020 MT of fine iron ore ("the Cargo"), arrived in Beilun, China. On 18th October 1999, discharge of the Cargo was finished and the Cargo was stored with the local Port authority. Since then Baosteel Group International Trade Corporation ('Baosteel') have taken delivery of part of the Cargo from the Port Authority against a copy of the original Bill of Lading. Presently around 50,000 MT of the Cargo is still stored with the Port Authority.
2.4.2On 23rd October 1999, at the application for evidence preservation submitted by, (sic) the Nantong Division of the Wuhan Maritime Court ('the Court') delivered a Civil Ruling [(1999) WHFTZBZ No. 03] ordering Vrinera Marine Co Ltd ('Vrinera') and Overseas Marine Enterprises Inc ('Overseas Marine') to submit documents to the Court including deck log book, engine log book, bell book, crew list, ISM documents and sea protests etc. In the meantime, the Vessel was undergoing repairs at Nantong and the Court forbade the Vessel from leaving Nantong unless all the documents were provided. The Vessel was obliged to submit most of the documents requested by the Court.
2.4.3On 30th October 1999, at the application for pre-trial of the Vessel submitted by Baosteel dated 29th October, the Court delivered a Civil Ruling [(1999) WHFTBZ No. 10] ordering that the Vessel be arrested and not be released unless security was provided in the amount of USD1,100,000.00.
2.4.4On 2nd November 1999, local lawyers were requested to provide General Average Security. This request was not met.
2.4.5On 17th November 1999, a Letter of Undertaking issued by China Re in the amount of USD1,100,000.00 was provided on behalf of the Vessel, and on 19th November the Court delivered a Civil Ruling [(1999) WHFTBZ No. 10] permitting the release of the Vessel.
2.4.6On 24th November, the Court accepted the claim brought by Baosteel against Vrinera and Overseas Marine.
2.4.7On 15th December 1999, a Challenge to the Jurisdiction over the 'Vakis T' case was submitted on behalf of the owners of the Vessel. The argument was based on the arbitration clause which was incorporated into the Bill of Lading from the Voyage Charter between Bao Steel Hong Kong Trading Co Ltd as charterers and Eastern Rich Operations Inc as Owners dated 8th April 1999.
2.4.8The Court has not yet fixed a hearing date for the Challenge. If this Challenge succeeds, the Court will reject the claim brought by Baosteel and all disputes under the Bill of Lading shall be referred to London arbitration. Arbitrators on behalf of Vrinera, Overseas Marine, and Baosteel have been appointed.
2.4.9The claim for General Average is being progressed by Owners and remains alive.
It is not therefore known whether privilege can or will be claimed in respect of all or part of the material subject of the FOI Notices. It is not therefore appropriate to risk defeat of a potential claim for privilege by the release of any documents prior to discovery and claims to privilege.
2.5 The material subject of the FOI Notices can be wrongly interpreted when viewed in isolation and without the benefit of technical and other information which has subsequently come to light as to the cause of the casualty and the condition of the vessel. As such, this could lead to a damaging effect on Owners. Parties not fully informed but in possession of limited information could reach incorrect conclusions and publish inaccurate information which could be damaging to the Owners.
2.6 No proper purpose can be served by the disclosure of what Owners perceived to be confidential material to any source. Any party which may have a direct interest, such as cargo owners, has the right through legal proceedings to obtain what material it may be entitled to.
3. Nature of the Documents Sought Under the FOI Notices
3.1 The documents generally represent correspondence, minutes of meetings, drawings and calculations, descriptions of the damage, discussions and proposals which were canvassed by the main parties involved in this casualty. In particular those parties were:
3.1.1 Dampier Port Authority;
3.1.2 C.R. Cox & Associates;
3.1.3 Owners' representative, Mr. Chondros;
3.1.4 Cocks Macnish;3.1.5 Overseas Marine Enterprises Inc;
3.1.6 AMSA;
3.1.7 Ships agents, Beaufort Shipping;
3.1.8 Class, Polish Register;
3.1.9 Vrinera Marine Company Limited;
3.1.10 Various contractors;
3.1.11 West Australian Department of Transport;
3.1.12 The Master.3.2 All of the material was generated with a view to determining the likely cause and extent of the damage to the vessel, how it could be controlled and safely repaired, and what alternative plans were available to deal with the problem. This involved issues relating to:
3.2.1 removal of bunkers and the avoidance of oil pollution;
3.2.2removal by dumping or transshipment of all or part of the cargo;
3.2.3temporary repairs to stop inflow of any water and enable a tow to proceed;
3.2.4 weather conditions;
3.2.5 towage plans etc.
3.3 The documents can be categorised into 9 areas:3.3.1 Vrinera's letter of 1 July 1999 in response to the Australian Maritime Safety Authority's message of 30th June 1999;
3.3.2 Emails emanating from Mike Balsdon to GMS and PSS;
3.3.3Polish Register letter of 18th May 1999 to Overseas Marine attaching their longitudinal and zone strength analysis;
3.3.4Correspondence of 30th April and 19th May from the Dampier Port Authority dealing with the option for the Vessel and cargo off Dampier;
3.3.5 Divers' drawings showing damage dated 31st May 1999;
3.3.6Electrotech Customer Service Report for repair of MF/HF transceiver;
3.3.7 Master's reports issued through Beaufort Shipping Agency;
3.3.8Correspondence and reports dealing with the removal of the Vessel's bunkers and the quantity ROB;
3.3.9Correspondence from Polish Register setting out the conditions upon which the Vessel was permitted to carry out one voyage to the discharge port.
4. Section 43 Submissions
4.1 All of the material subject of the FOI Notices would normally remain entirely confidential as between the Owners and their various contractors and associated parties. Because of the interest of Dampier Port Authority and AMSA in regulating foreign shipping which carries cargoes to and from Australian ports, those entities (and the West Australian Department of Transport) have an interest to assist in resolving such crises.
4.2 The material subject of the FOI Notices is capable, when viewed in isolation, of leading to damaging allegations and innuendo concerning the condition and management of the Vessel. This could reasonably be expected to unreasonably affect the Owners in respect of its lawful business, commercial or financial affairs. It is the position of the Owners in relation to claims by cargo interests that the Vessel was at all times seaworthy, cargoworthy, and properly managed. The successful voyage of the Vessel to China under her own power is evidence of this. Material which has the potential to commercially damage a party in these circumstances should be exempt.
4.3 There is adequate reason to conclude that pursuant to Sections 43(1)(c)(i) and (ii), Owners are entitled to exemption for all of the material the subject of the FOI Notices.
4.4 It remains to be seen whether in the proceedings in 3 different fori (sic) the documents will be the subject of any privilege claim."
On 22 February 2000 Mr P Quirk, General Manager, Maritime Safety and Environmental Strategy, AMSA decided to grant access under the FOI Act to all the documents and video tapes, the subject of the relevant request for access, with the exception of 2 documents which he decided were exempt documents under s41 of the FOI Act. In respect of some of the documents, Mr Quirk decided to grant access with certain deletions. The solicitors for the party joined were notified of Mr Quirk's decision by letter dated 24 February 2000, and Cocks Macnish (representing the applicants) were so notified by letter dated 28 February 2000.
On 3 March 2000 the applicants lodged with the Tribunal an application for review of Mr Quirk's decision of 22 February 2000.
The Affidavit of Ajay TandonAn affidavit of Ajay Tandon, sworn on 28 June 2000, was tendered in evidence by the applicants. Mr Tandon's affidavit states as follows:
"1.I am the principal of C R Cox & Associates (Australia), the Secondnamed Applicant and am duly authorised to swear this affidavit on its behalf and on behalf of the other Applicants.
2.I was at all times engaged as a representative and/or agent of the Vessel 'Vakis T' ('the Vessel') and its Protection and Indemnity Association.
3.Save as is otherwise expressly stated herein the matters deposed to are from my own personal knowledge and where I have no personal knowledge they from (sic) enquiries and searches undertaken or commissioned by me of the Applicants and of the owners and/or operators of the 'Vakis T', all of which I believe to be true and correct.
4.I was involved in the investigation of the incident involving the casualty concerning the Vessel ('the Casualty'') and its subsequent detention by the Respondent.
5.I am a qualified foreign going Master and Marine Surveyor and have been operating as such since approximately 1982. I have considerable experience in the investigation of marine casualties. In my function as a marine surveyor I have acquainted myself with the Australian Maritime Safety Authority Act, 1990 and the functions and objectives of the Respondent. I have over the years had numerous dealings with the Respondent in relation to, inter alia, the investigation of marine casualties and I am familiar with its means of operation and its objectives including the promotion of safety at sea, the protection of the marine environment, the inspection of foreign ships visiting Australian Ports as part of its Port State Control functions and its power of detention under the Navigation Act, 1912.
6.The Vessel is registered at the Port of Limassol, Cyprus. I verily believe that the Vessel was at all material times owned (or demise chartered) by Vrinera Marine Company Limited ('the Owner') and chartered in (sic) Eastern Rich Operations, of Room 2001-03, 20/FSUN Hung Kai Centre, 30 Harbour Road, Wanchai, Hong Kong ('the Charterer'). The master of the Vessel at the material time, Captain Patronas Konstantinos was a Greek master holding a foreign going master's certificate. I verily believe that the operator at the time of the Vessel was Overseas Marine Enterprises of Athens, Greece. The Vessel's classification society is Polski Registr Statkow.
7.(a) To the best of my knowledge, information and belief neither the Owner or the Charterers have any local office in Australia and as such are in large measure in normal circumstances wholly dependant upon their appointed shipping agent in the relevant port;
(b)The Vessel's agent for the Port of Dampier at the material time was Beaufort Shipping Agency ('the Agent').
8.(a) From my experience in the shipping and maritime industry I verily believe that the relationship between a ship owing (sic) or operating principal and a port agent is necessary and fundamental to the principal's efficient and safe shipping operations at the port;
(b)The port agent's functions include (but are not limited to) the ordering and paying for port and harbour services, clearing of Vessels for customs and immigration purposes, ordering stores and provisions, arranging repairs, crew changes and towage, dealing with administrative matters, arranging for the Vessel's berth and stores, fuel and repairs, arranging tugs, pilots and stevedores, Iiaising with shippers and receivers so as to ensure cargo is delivered and collected, caring for crew requirements whilst the Vessel is in port, and attending to all necessary documentation including the issuing and collecting of Bills of Lading, cargo manifests, delivery notes, ordering surveys of Vessel or cargo, collecting and remitting freight and demurrage. They have the responsibility of entering into contracts on behalf of their principal and thereby binding their principal. Accordingly the degree of level and trust (sic) necessary between an agent and his or her principal is critical to the efficient and proper operation of the Vessel. An agent also offers advice to the master. This is particularly critical in relation to foreign Vessels who only call at a particular port from time to time. The advice which an agent can be called upon to proffer includes advice on technical or even, on occasions, legal issues. The agent can also be called upon to determine the necessity for a classification surveyor to attend in the event of hull damage, and where appropriate to deal with union related problems;
(c)The degree of necessary reliance and dependancy of a principal upon local agents is heightened particularly if the language and local custom may present particular problems for the foreign master;
(d)I also verily believe that agents may have functions other than those of purely ship's agents such as marketing responsibilities for his or her principal which requires the agent to procure cargo for carriage on his or her principal's Vessel, I further verily believe from my experience in the industry that competition for cargo in Australian Ports is fierce;
(e)I am further advised by Messrs Cocks Macnish, solicitors and I verily believe that an agent can involve his or her principal in vicarious liability for any torts committed by the agent within the scope of the agent's authority (whether actual or apparent);
(f)The relationship between the agent and his principal is a relationship of trust and confidence and I verily believe that if the trust and confidence which the principal and in particular foreign principals such as the owner and/or operator or charter (sic) of the Vessel reposes in the agent is undermined or in any way jeopardised then this could undermine the agent's function and the efficient and proper operation of the Vessel at the particular port. As part of the relationship of trust and confidence between the agent and his principal I verily believe that it is important that the parties, the agent and principal, confide and communicate openly and candidly with each other so as to ensure the proper and efficient operation of the Vessel at the particular port. I verily believe that full and frank disclosure amongst principal and agent is fundamental to their relationship,
9. …
10.The relationship of trust and confidence arises from the fact that the agent undertakes to act in its principal's best interest.
11. I verily believe that if the communications from or to the Agent concerning the operations of the Vessel and/or the running of the Vessel or its other activities become public and able to be provided to third parties, then this may discourage candour (sic) communication between the agent and principal. This may well impede the safe and efficient operation of a Vessel within a port, with potential adverse economic consequences both to (sic) the parties involved. It may also potentially prejudice the international standing of Australian ports. As such I verily believe that disclosure of such documents and information could potentially unreasonably affect the Owner and/or Charterer and/or operator's conduct of its shipping business and commercial and financial affairs,
12. The Respondent is a government agency charged with the responsibility of, inter alia, maritime safety and the protection of the marine environment from ship source pollution. I verily believe that an integral part of its function is to develop a relationship with members of the maritime industry, including shipowners and operators, I verily believe that such a relationship is a necessary prerequisite to the Respondent's efficient and effective performance of its function in maritime safety and protection of the marine environment. I also verily believe that the Respondent coordinates Australia's international responsibilities in relation to ship safety and protection of the sea from marine pollution. It also is responsible for flag, state and port state policy functions which include the operational standards of Vessels in Australian waters to ensure seaworthiness and safe operation and enhancement of national and international maritime safety standards, the development and application of international navigational safety policy and standards and environmental protection of Vessels in Australian waters.
13.I verily believe that as part of the Respondent's Port State control regime it inspects Vessels of other flag states visiting Australian ports, such as the 'Vakis T' with the aim of establishing that the Vessels' Statutory Certificates are valid and that the hull, machinery, equipment and crew meet international requirements to ensure the safety of the crew and the marine environment. I also verily believe that the Respondent has the power to detain Vessels until they are restored to a safe and seaworthy condition if they are found to not comply with international requirements.
14. I verily believe to the best of my recollection in the circumstances of this case that the Respondent issued a Detention Notice for the Vessel after the Casualty. The Respondent's representative requested the Vessel to keep it notified on a regular and frequent basis of the extent of water ingress so that, if there was any threat to life and limb the Respondent could issue an order that the Vessel be removed from Australian waters. I verily believe that the master of the Vessel voluntarily complied with the Respondent's request and was not legally compelled to do so.
15. I verily believe that the master's voluntary compliance with the Respondent's request for regular and frequent updates or reports was done in the interests of the ship's safety, and so as not to prejudice the shipowner and/or operator and/or charterer's standing with the Respondent.
16.I further verily believe that in order to facilitate full and frank disclosure of information by shipowners and operators to the Respondent and other regulatory authorities to assist in the joint obligations of maritime safety and the protection of the environment from ship source pollution, any disclosure of documents and/or information provided by the ship should not be made because this may undermine or jeopardise the ongoing provision of such information and/or documentation and may further undermine or jeopardise the level of cooperation between international visiting ships and the Australian regulatory authorities. I verily believe that if the relationship is undermined then this could ultimately have the effect of impeding the Respondent's regulatory functions and impeding its ability to effectively and efficiently achieve its aims of maritime safety and protection of the environment from ship source pollution. I further believe that the Respondent is to a large degree reliant upon the goodwill and co-operation of international shipowners and operators particularly in their investigations and also in relation to the achieving of the Respondent's corporate plans and goals being to achieve world's best practice.
17.I further verily believe from my involvement with foreign shipowners, operators and charterers that a degree of confidentiality and trust is necessary between the relevant authorities and the foreign shipowner and/or operator or charterer so as to ensure full and frank exchange and achieving of mutual goals. I further verily believe that this sentiment is reflected in Regulation 15 of the Navigation (Marine Casualty) Regulations.
18. I verily believe that some of the document (sic) that are the subject of this Application include loading and discharge plans and capacity plans. I verily believe that these plans will show commercially sensitive information such as the identification of cargo, quantities of cargo, possibly consignors and consignees of cargo and other commercially sensitive information. I verily believe that the dissemination or disclosure of commercially sensitive information such as referred to herein may reduce the commercial value of that information and may unreasonably affect the Owner and/or Charterer and/or operator's conduct of its business or commercial affairs, as the information contained in or gleaned from the documents the subject of this Application, and in particular the loading and discharge plans and the capacity plans will be of significant interest to competitors of the Owners and/or operator and/or Charterer.
…".
The Legislation
The FOI Act relevantly provides:
"3(1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:
(a) …;…
(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
(c) …
(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
…
11(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.…
43(1) A document is an exempt document if its disclosure under this Act would disclose:(a) trade secrets;
(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or
(c) information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:
(i) the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or
(ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.
…
58(1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
(2) Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
…
59(1) Where, on a request having been made for access to a document containing information concerning:(a) a person's business or professional affairs; or
(b) the business, commercial or financial affairs of an organisation or undertaking;
an agency or Minister decides that the document to which the request relates, or an edited copy of the document, is not an exempt document under section 43, the person or organisation, or the proprietor of the undertaking, may apply to the Tribunal for a review of the decision.
(2) Where an application is made in accordance with subsection (1):(a) the provisions of this Part (other than section 55) apply in like manner as they apply in relation to an application for review of a decision refusing to grant access to a document; …
…
61(1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.
(2) In proceedings under section 58F, 59 or 59A, the party to the proceedings that opposes access being given to a document in accordance with a request has the onus of establishing that a decision refusing the request is justified or that the Tribunal should give a decision adverse to the applicant."
The word "document" is defined (inclusively) in s4(1) of the Act in very broad terms and it is common ground that a video tape falls within that definition.
The Documents the Subject of the Present Application for Review
The paper documents the subject of the present application for review have been described by the applicants' solicitors as follows:
"(a) facsimile transmission from Dampier Port Authority to MV 'Vakis T' Owners Representative dated 30 April 1999;
(b) Minutes of Meeting held at Dampier Port Authority dated 29 April 1999;
(c) Bunker Discharge of Port - C.R Cox & Associates undated;
(d) handwritten memorandum headed 'Peter Douglas P&I' dated 30 April 1999;(e) facsimile transmission from Overseas Marine Enterprises to AMSA dated 3 July 1999;
(f) facsimile transmission from Vrinera Marine Company Limited to Overseas Marine Enterprises dated 1 July 1999 comprising letter to AMSA and Dampier Port Authority in response to their facsimile transmission of 30 June 1999;
(g) Electrotech Customer Service Report 21613 dated 27 September 1999;
(h) e-mail from Mike Balsdon (AMSA) to GMS & PSS dated 27 April 1999;
(i) facsimile transmission from Dampier Port Authority to Beaufort Shipping Agency Company dated 19 May 1999;
(j) telex headed 'Beaufort Shipping Dampier Received MSG: CTE Thermophlae' dated 23 April 1999;
(k) DOT Vessel Information Form Appendix 5;
(l) e-mail from Patrick Quirk to Mike Balsdon dated 23 April 1999;
(m) DOT Vessel Information Form Appendix 5 dated 23 April 1999;(n) facsimile transmission from Beaufort Shipping Agency Company to Harbour Master/Port Control Dampier Port Authority dated 28 April 1999;
(o) e-mail from Mike Balsdon to GMS & PSS - Report dated 28 April 1999;
(p) DOT Marine Pollution Situation Report undated;
(q) e-mail from Mike Balsdon to GMS & PSS dated 29 April 1999;
(r) handwritten document headed 'Fuel Oil' dated 25 April 1999;
(s) handwritten document headed 'Lubricants' dated 29 April 1999;
(t) copy searches (sic) of Vessel;(u) e-mail from Patrick Quirk to Dampier Port Authority dated 7 September 1999;
(v) facsimile transmission from Beaufort Shipping Agency Company to Dampier Port Authority dated 27 April 1999;
(w) facsimile transmission Beaufort Shipping Agency Company to Dampier Port Authority dated 28 April 1999 (x 2);
(x) facsimile transmission from Beaufort Shipping Agency Company to AMSA Karratha dated 30 April 1999;
(y) facsimile transmission from Dampier Port Authority to 'Vakis T' Owners Representative dated 30 April 1999 together with sketch headed 'Diver's Drawing';
(z) copy ship's documents headed 'Figure A and AA' - various;
(aa) copy facsimile Polski Rejestr Statkon to Overseas Marine Enterprises dated 18 May 1999;
(bb) copy e-mail in Polish headed 'PRS Survey Department';
(cc) copy document headed 'Zone Strength Analysis of Bottom Side Structure in No 3 Hold - Enclosure 1' with attached diagram undated;
(dd) Results of the Calculations of the Grillage headed 'PRS Survey Department' undated;
(ee) handwritten notes headed 'Case No 2 and Case No 3' together with Results of Grillage undated;
(ff) Longitudinal Strength Analysis Report headed 'Enclosure 2' undated;
(gg) copy Loading Condition: Cargo and Water in No 3 Hold - Stan: Heavy Homo 1, and Loading Condition: Cargo and Water in No 3 Hold together with graph and readings (various);
(hh)facsimile transmission from M Dudek, Survey Department to Overseas Marine Enterprises dated 10 November (sic) 1999;
(ii)facsimile transmissions from Polski Rejestr Statkon to Overseas Marine Enterprises dated 6 September 1999;
(jj) facsimile transmission from P Chondros to Republic of Cyprus, Department of Merchant Shipping dated 7 September 1999."
[The Tribunal notes that the word "searches" in para (t) should be "sketches", and the date "10 November" in para (hh) should be "11 August".] The video tapes the subject of the present application for review comprise 4 video tapes dated, respectively, 24 April 1999 – 3 May 1999, 6 May 1999, 10 May 1999 – 18 May 1999, and 23 September 1999. Those video tapes show underwater inspections of the damage to the hull of the vessel and of welding and other work subsequently carried out to repair that damage. The Tribunal understands that those video tapes were produced, not by AMSA, but instead by a representative of Overseas Marine Enterprises Inc who subsequently provided them to AMSA. The abovementioned paper documents and video tapes will hereafter be referred to as "the documents".
Consideration and Findings
Ms Saraceni (for the applicants) rightly conceded that the applicants' submissions in support of the contention that the documents are exempt documents within the meaning of the FOI Act must be confined to the category of exempt documents referred to in s43 of the FOI Act: see Mitsubishi Motors Australia Ltd v Department of Transport (1986) 12 FCR 156. Ms Saraceni submitted that the documents are exempt documents under para (b), and subparas (c)(i) and (c)(ii), of s43(1) of the FOI Act.
Are any of the documents exempt under s43(1)(b) of the FOI Act ?The question for determination in relation to s43(1)(b) of the FOI Act is whether disclosure of any of the documents would disclose information (other than trade secrets, which are the subject of para (a)) having "a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed".
In Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 the Federal Court of Australia (Full Court) said (at 123):
"In the application of s43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed or diminished if the information were disclosed. It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable.
…the question under s43(1)(b) is not whether there is a reasonable basis for a claim for exemption but whether the commercial value of the information could reasonably be expected to be destroyed or diminished if it were disclosed. These two questions are different. The decision-maker is concerned, not with the reasonableness of the claimant's behaviour, but with the effect of disclosure…".
In the present case the only evidence that was presented to the Tribunal in support of the contention that some of the documents are exempt documents under s43(1)(b) of the FOI Act was that contained in para 18 of Mr Tandon's affidavit (Exhibit A1). In that paragraph Mr Tandon referred to "loading and discharge plans and capacity plans" which he believed to be included within the documents. He continued:
"I verily believe that these plans will show commercially sensitive information such as the identification of cargo, quantities of cargo, possibly consignors and consignees of cargo and other commercially sensitive information. I verily believe that the dissemination or disclosure of commercially sensitive information such as referred to herein may reduce the commercial value of that information and may unreasonably affect the Owner and/or Charterer and/or operator's conduct of its business or commercial affairs, as the information contained in or gleaned from the documents the subject of this Application, and in particular the loading and discharge plans and the capacity plans will be of significant interest to competitors of the Owners and/or operator and/or Charterer."
Having inspected the documents the Tribunal notes that a very small number of them refer in very brief and general terms to the classification of the cargo, and state the weight of the cargo, that was on board the vessel at the relevant time. The Tribunal is not satisfied on the evidence before it that that information has any commercial value or, if it does, that such value would be, or could reasonably be expected to be, destroyed or diminished if that information were disclosed. Likewise Mr Tandon's general assertion that the abovementioned documents would contain "other commercially sensitive information" whose disclosure "may reduce the commercial value of that information" is not of itself sufficient to satisfy the Tribunal that those particular documents are exempt documents under s43(1)(b) of the FOI Act. That mere assertion neither explains the basis on which that information may be said to have a "commercial value", nor in terms refers to, or provides any basis for, the existence of a reasonable expectation that such commercial value (if it existed) would or could be diminished by the disclosure of that information.
The Tribunal finds, therefore, that none of the documents is an exempt document under s43(1)(b) of the FOI Act.
Are any of the documents exempt under s43(1)(c)(i) of the FOI Act?Ms Saraceni (for the applicants) submitted, relying chiefly on paras 11 and 18 of Mr Tandon's affidavit (Exhibit A1 – see paragraph 9 above) that the documents are exempt under s43(1)(c)(i) of the FOI Act in that their disclosure under that Act would disclose information concerning the business, commercial or financial affairs of the owners, charterers or operators of the vessel, and that disclosure of that information would, or could reasonably be expected to, unreasonably affect one or more of those undertakings adversely in respect of their lawful business, commercial or financial affairs. In particular, Ms Saraceni submitted that disclosure under the FOI Act of "commercially sensitive" information contained in the documents could reasonably be expected to advantage commercial competitors of the owners, charterers or operators of the vessel. She also submitted that information contained in the documents is capable, when viewed in isolation, of leading to damaging allegations and innuendoes concerning the condition and management of the vessel and, accordingly, its disclosure could reasonably be expected to unreasonably affect the owners, charterers or operators of the vessel adversely in respect of their lawful business, commercial or financial affairs.
In Searle (above) the Full Federal Court, referring to s43(1)(c)(i) of the FOI Act, said (36 FCR at 125):
"…the test is not whether it is reasonable for a person to claim exemption but whether, in the opinion of the decision-maker, having regard to the information before the decision-maker: '... the disclosure ... would, or could reasonably be expected to, unreasonably affect that person adversely'.
…
…the word 'unreasonably' should be given its ordinary meaning. Section 43(1)(c)(i) poses the issue whether disclosure of the information would unreasonably affect a person adversely. The issue is not whether 'the effect is of substance rather than incidental or trivial', …
If it be in the public interest that certain information be disclosed, that would be a factor to be taken into account in deciding whether a person would be unreasonably affected by the disclosure; the effect, though great, may be reasonable under the circumstances. To give two examples: if the relevant information showed that a business practice or product posed a threat to public safety or involved serious criminality, a judgment might be made that it was not unreasonable to inflict that result though the effect on the person concerned would be serious. Of course, the extent and nature of the effect will always be relevant, often decisive. Whether the effect of the disclosure is unreasonable cannot be assessed without taking into account all relevant factors: see Colakovski v Australian Telecommunications Corp(1991) 29 FCR 429 at 438, 441." (original emphasis)
The evidence before the Tribunal is not sufficient to satisfy it that any of the documents are exempt under s43(1)(c)(i) of the FOI Act. Mr Tandon, in para 11 of his affidavit, deposes to his belief that public disclosure of communications from or to the port agent concerning the operations of the vessel "may discourage" candid communication between the agent and the owner or operator of the vessel and "may well impede the safe and efficient operation of a vessel within a port, with potential adverse economic consequences" to the parties involved, and concludes:
"As such I verily believe that disclosure of such documents and information could potentially unreasonably affect the Owner and/or Charterer and/or operator's conduct of its shipping business and commercial and financial affairs."
In para 18 of his affidavit, Mr Tandon merely states that he believes (relevantly):
"that the dissemination or disclosure of commercially sensitive information such as referred to herein … may unreasonably affect the Owner and/or Charterer and/or operator's conduct of its business or commercial affairs, as the information contained in or gleaned from the documents the subject of this Application, and in particular the loading and discharge plans and the capacity plans will be of significant interest to competitors of the Owners and/or operator and/or Charterer."
In the Tribunal's opinion those statements fall short of establishing that disclosure of the relevant information "would, or could reasonably be expected to, unreasonably affect" any of the relevant undertakings adversely in respect of its lawful business, commercial or financial affairs, within the meaning of s43(1)(c)(i) of the FOI Act. As regards Ms Saraceni's submission that information contained in the documents is capable, when viewed in isolation, of leading to damaging allegations and innuendoes concerning the condition and management of the vessel, no evidence has been presented to the Tribunal in support of that submission. Furthermore, whether disclosure of the relevant information would or could unreasonably affect any of the abovementioned undertakings adversely in respect of its lawful business, commercial or financial affairs is, in the Tribunal's opinion, a matter of mere speculation rather than of reasonable expectation.
Having inspected the documents for itself, it is not apparent to the Tribunal that they contain information whose disclosure would, or could reasonably be expected to, unreasonably affect the owners, charterers or operators of the vessel adversely in respect of their lawful business, commercial or financial affairs.
The Tribunal finds, therefore, that none of the documents is an exempt document under s43(1)(c)(i) of the FOI Act.
Are any of the documents exempt under s43(1)(c)(ii) of the FOI Act?In Attorney-General's Department and Australian Iron and Steel Pty Ltd v Cockcroft (1996) 10 FCR 180 Bowen CJ and Beaumont J, referring to s43(1)(c)(ii) of the FOI Act, said (at 190):
"In our opinion, in the present context, the words 'could reasonably be expected to prejudice the future supply of information' were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based…".
Ms Saraceni (for the applicants) submitted, relying chiefly on para 16 of Mr Tandon's affidavit, that the documents are exempt under s43(1)(c)(ii) of the FOI Act in that their disclosure under that Act would disclose information concerning the business, commercial or financial affairs of the owners, charterers or operators of the vessel, and that disclosure of that information under the Act could reasonably be expected to prejudice the future supply of information to AMSA (an "agency" within the meaning of the Act) for the purpose of its administration of the Navigation Act 1912 and the Australian Maritime Safety Authority Act 1990 or the administration of other matters administered by AMSA.
Mr Tandon, in para 16 of his affidavit, deposes generally to his belief that disclosure of documents or information provided by ship owners and operators to AMSA "may undermine or jeopardise the ongoing provision" of such documents or information to AMSA. That general assertion, in the Tribunal's opinion, does not constitute sufficient evidence to satisfy it that disclosure of the documents under the FOI Act "could reasonably be expected to prejudice the future supply of information" (within the meaning of s43(1)(c)(ii) of the FOI Act) to AMSA for its statutory purposes. In expressing that opinion the Tribunal notes that the judgment of the officer who made the decision under review (a senior officer of AMSA), having considered the risk that disclosure of the documents would prejudice the future supply of similar information to AMSA, was that the documents were not exempt under s43(1)(c)(ii) of the FOI Act. That judgment, having regard to that officer's high-level position within AMSA, is, in the Tribunal's opinion, entitled to substantial weight – certainly, greater weight than the abovementioned general assertion of Mr Tandon in para 16 of his affidavit.
On the basis of the whole of the material before it, the Tribunal finds that none of the documents is an exempt document under s43(1)(c)(ii) of the FOI Act.
ConclusionThe Tribunal concludes, therefore, that none of the documents is an exempt document under s43 of the FOI Act.
DecisionFor the above reasons, the Tribunal affirms the decision under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Senior Member
Signed:
...............................(sgd S Railton)................................
AssociateDate/s of Hearing 14 & 15 December 2000
Date of Decision 28 September 2001
Counsel for the Applicant Ms P Saraceni
Solicitor for the Applicant Cocks Macnish
Counsel for the Respondent Ms B Pearson
Solicitor for the Respondent Australian Maritime Safety Authority
Counsel for the Party Joined Mr G Abbott
Solicitor for the Party Joined Freehills/Pynt McKay
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