Baueris, V.G. v The Commonwealth of Australia

[1987] FCA 293

Re: VICTOR GEORGE BAUERIS
And: THE COMMONWEALTH OF AUSTRALIA
No. G309 of 1986
Freedom of Information

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Freedom of Information - Whether information exempt as involving a breach of confidence - Freedom of Information Act 1982, s.45(1) - whether material inherently confidential.

HEARING

SYDNEY

#DATE 9:6:1987

Counsel and Solicitors for Applicant: Ms. C. Simpson instructed by MacMahon & Drake

Counsel and Solicitors for Respondent: Mr. D.M. Yates instructed by Australian Government Solicitor

ORDER

Appeal dismissed.

Applicant to pay the respondent's costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal on a question of law arising under the Freedom of Information Act 1982 ("the Act"). The question arises in this way. The applicant, the General Secretary of the N.S.W. Teachers Federation, requested the Commonwealth Schools Commission to grant access under the Act to certain information relating to an application made to the Commission by St. John's High School, Dubbo. The information requested related to an application for recurrent funding for the creation of a senior high school for years 11-12 and to an application for capital funding for the establishment of a new year 7-10 school on a new site. The Commission refused access to all the documents sought. Subsequently, the Department of Education, to which the responsibility for the administration of the capital grants and general recurrent grants programs had been transferred, decided to grant access to the documents but deleted certain material in ten of the documents. Access was denied to the deleted material on the ground that s.45(1) of the Act exempted it from disclosure. Section 45(1) of the Act provides that a document is an exempt document if its disclosure under the Act "would constitute a breach of confidence".

1. The Tribunal upheld the claim for exemption. In its reasons, the Tribunal described the deleted material as follows:
   
   

"(a) the finances of the Dubbo parishes for the year ended 31 March, 1984;

(b) the finances of the parishes of St. Ingrid, St. Laurence and St. Mary for the year ended 31

March, 1983;

(c) the annual recurrent budgets 1983 and 1984 for

St. John's College;

(d) the Bathurst Diocesan School Building Fund

account for the year ended 31 March, 1983;

(e) a financial statement 1 April to 31 December,

1983 relating to an unnamed parish;

(f) a budget prediction for St. John's College in

respect of the period 1 January - 31 March,

1984;

(g) details about the financial position of the

parishes of St. Ingrid, St. Laurence and St.

Mary for the year ended 31 March, 1984 and about the loan accounts of the three parishes as

regards School-Building Programmes, together

with summaries of the same information;

(h) projections drawn from the information contained in sub-para (g) above;

(i) similar information to that referred to in

sub-para (g);

(j) the same.

(There is some duplication in the parts of the

documentation to which access was refused)."

1. Pursuant to s.64(1) of the Act, the Tribunal was provided with copies of the documentation in controversy. The Tribunal characterised the deleted material to which access was resisted as documentation with respect to "the financial affairs of St. John's College Dubbo, and of the Roman Catholic Parishes which support it." The Tribunal reviewed in some detail the evidence as to the circumstances in which the information in question was communicated to the Commission. The Tribunal then identified the following three elements as the relevant considerations in the determination of a claim for exemption under s.45(1):
   
   

"1. Whether the information is confidential.

2. Whether the information was communicated in

confidence or in such a way that there was an

obligation of confidence.

3. Whether disclosure would be an unathorized use

by the confidant although not necessarily with a prejudicial or detrimental effect."

1. The Tribunal held that each of these ingredients was satisfied in the present case. It then dealt with and rejected a separate argument advanced on behalf of the applicant, which is not pursued in this Court (see Re Maher (1986) 4 AAR 266 at pp 288-9), that, in applying s.45(1), the Tribunal was bound to take into account a suggested countervailing public interest.

2. By his amended notice of appeal, the applicant challenged the Tribunal's decision on a number of grounds. On the hearing of the appeal, only one ground was argued. It was submitted on behalf of the applicant that s.45(1) applied to information which was inherently confidential. It followed, the argument ran, that for the purposes of s.45(1) it was not open to the parties, by a merely private agreement, to change the character of information that is not confidential into something that is confidential. It was then submitted that, in essence, this is what happened here. The suggestion was made that the parties to the communications now in question agreed that the material be treated as confidential with a view to avoiding its disclosure under the Act. Their agreement was said to be a "sham".

3. I cannot accept this analysis.

4. It is now well established that s.45(1) is wide enough to afford protection from disclosure in circumstances where an action for breach of confidence may not succeed (see Attorney-General's Department v. Cockcroft (1986) 10 FCR 180 at p 191). However, the circumstances in which equity will restrain a breach of confidence provide a useful analogy here. One of the requisites for the grant of equitable relief is that the information in question has the necessary quality of confidence. It must be inherently confidential in that, as a general rule, it is inaccessible to the public. It must not be something which is public property and public knowledge (see Gurry, Breach of Confidence at p.4; Kearney, The Action for Breach of Confidence in Australia at pp.9-13; Meagher, Gummow and Lehane, Equity - Doctrines and Remedies, 2nd ed. at p.828).

5. In the present case, there could be no suggestion that the subject information, dealing as it did with the financial affairs of a number of private institutions, had become public property or public knowledge. On the contrary, the evidence indicated, as one would expect, that the communication of such material had been restricted. It follows, in my opinion, that the necessary quality of confidence existed here (see Cockcroft, supra, at pp.191-2).

6. The first of the three elements to be proved by a plaintiff to enforce a duty of confidence was thus established (see Coco v. A.N. Clark (Engineering) Ltd. (1969) RPC 41 per Megarry J. at p 47). There remained the other two elements in Megarry J.'s well-known formulation. The Tribunal also correctly identified these other elements and found, on the evidence, that they were made out. There was no serious challenge to these findings. The evidence showed that much of the information was conveyed under the umbrella of an express undertaking of confidentiality. There was alos evidence that the balance of the material was communicated to the Commission in circumstances in which it was proper to infer or imply a pledge of confidentiality (see Department of Health v. Jephcott (1985) 62 ALR 421 at p 425).

7. It follows that the suggestion that the parties were seeking, by a "sham" agreement, to transform the character of the information disclosed must be rejected. The material always had the necessary quality of confidence and the parties, by their express or implied agreement, were doing no more than seeking to preserve its confidentiality. To restrict its disclosure in this way was not a sham. On the contrary, the agreement accorded with the true position.

8. The applicant also sought to rely upon the reasons in Re Low and Department of Defence (1984) 2 AAR 142 at pp 147-149. In my opinion, that case has no bearing upon the present question.

9. It was also argued on behalf of the applicant that the protection of s.45(1) was not available because the information was furnished with a view to obtaining a benefit. The fact that the information in question was provided to the Commission for the purpose of obtaining a grant may be accepted. But there is no reason to read down the operation of s.45(1) so as to exclude such a situation from its protection.

10. In my opinion, the Tribunal correctly held that the exemption under s.45(1) was available. The appeal will be dismissed with costs.