Boyd v Director General, NSW Agriculture
[2004] NSWADT 125
•06/25/2004
CITATION: Boyd v Director General, NSW Agriculture [2004] NSWADT 125 DIVISION: General Division PARTIES: APPLICANT
Lindsay Boyd
RESPONDENT
Director General, NSW AgricultureFILE NUMBER: 033147 HEARING DATES: 09/02/2004 SUBMISSIONS CLOSED: 02/09/2004 DATE OF DECISION:
06/25/2004BEFORE: Higgins S - Judicial Member APPLICATION: access to documents - confidential material - Freedom of Information Act - access to documents - confidential material MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Plant Diseases Act 1924CASES CITED: B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 338
B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 341
Maher and Attorney General's Department (1985) 7 ALD 731 at 737
Ryder v Booth [1985] VR 870 at 872
Saxon and Australian Maritime Authority (unreported, AAT, Cth, 19 June 1995 at 25)
The Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin’s Case)
Wiseman v Commonwealth, (unreported, Federal Court, 24 October 1989)
Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253
Young v Wicks (1986) 13 FCR 85 at 89REPRESENTATION: APPLICANT
In Person
RESPONDENT
M Khoury, solicitorORDERS: 1. The decision of the agency in respect of deletions no. 1 (in so far as these contain information about the personal affairs of the persons listed), 3, 5, 6, 7, 8 and 9 in Document A and deletion no.4 in Document C is affirmed; ; 2. The decision of the agency in respect of deletions no.2, 4 and 10 in Document A, deletions in the body of Document B, deletions no.1 (insofar as it names third persons), 2, 3 and 5 in Document C, and the deletion in Document D is set aside; ; 3. The agency is to provide Mr Boyd, within 28 days, with a copy of Document D with no deletions and a further copy of the Documents A, B and C with deletions of those matters referred to in paragraph (a) above; and ; 4. The confidential material provided to the Tribunal by the agency to be returned forthwith.
REASONS FOR DECISION
BACKGROUND
1 This is an application by Mr Lindsay Boyd (“Mr Boyd”) seeking review of a decision of the freedom of information reviewing officer of NSW Agriculture (“the FOI reviewing officer”) to refuse him access to deletions that had been made by the FOI officer to documents Mr Boyd had requested pursuant to the Freedom of Information Act 1989 (“the FOI Act”). The FOI reviewing officer determined that the information contained within the deletions were exempt by virtue of various clauses under Schedule 1 of the FOI Act.
2 Mr Boyd had made his request for access to documents on 4 March 2003 (“the FOI application”). In his request he sought access to:
3 “All information regarding a complaint made against myself in relation to an alleged matter regarding finger limes on my property.”
4 On 24 March 2003, the Freedom of Information officer (“FOI officer”) of NSW Agriculture (“the agency”) made the initial determination of Mr Boyd’s FOI application. That officer determined that there were six documents held by the agency, which came within the terms of Mr Boyd’s FOI application. The officer determined to release three of those documents without any deletions and to release the remaining three documents with deletions on the basis that the information contained in the deletions were exempt.
5 On 28 March 2003, Mr Boyd requested an internal review. That internal review was determined by the FOI reviewing officer. That officer determined the internal review on 10 April 2003. In his determination, the FOI reviewing officer confirmed the earlier decision of the FOI officer and informed Mr Boyd that three additional documents had been located. In respect of these three additional documents, the officer determined that one document should be released, another document should be released subject to deletions, and access to the third document was to be refused.
6 The matter first came before the Tribunal, on 26 August 2003, at a planning meeting. Planning meetings and a directions hearing were subsequently held on 25 September 2003, 15 October 2003, 6 November 2003 and 16 December 2003. More than one planning meeting was necessary as both parties sought to resolve their differences. While some differences were resolved others could not be resolved, so the matter was set down for hearing on 9 February 2004.
7 At the hearing the only matters in dispute were deletions, other than deletions that identified the complainant, in the following four documents:
8 The Tribunal has jurisdiction to hear and determine this application by reason of s.53(1) and (3)(a)(iii) of the FOI Act and s.38 of the Administrative Decisions Tribunal Act 1997.
Document A – A letter dated 19 February 2003, from the complainant to Mr Chris Wetherill of the agency.
Document B – An undated handwritten facsimile from the complainant to Greg Wassell (“Mr Wassell”) of the agency.
Document C – An email dated 27 June 2002, which was attached to Document B.
Document D – A Customer Details Sale Record dated 24 February 2003, which was also attached to Document B.
Evidence
9 In support of his application, Mr Boyd tendered into evidence the following material:
10 an affidavit sworn by Mr Boyd, on 11 December 2003. In that affidavit, Mr Boyd gave evidence of what occurred when he attended an interview between Mr Wassell and James Boyd (nee Wager) on 4 March 2003. In that affidavit Mr Boyd states that Mr Wassell showed him a handwritten document, which Mr Wassell identified as being a document written by the complainant;
11 another affidavit by Mr Boyd sworn, on 15 December 2003, in which Mr Boyd responds to a statement of Mr Wassell dated 5 December 2003;
12 an affidavit of James Boyd (nee Wager) sworn on 11 December 2003. James Boyd also gave evidence about his interview with Mr Wassell on 4 March 2003. The essence of his evidence was that Mr Wassell gave him a bundle of documents, which included a two page handwritten document on pink photocopy paper. He states that Mr Wassell confirmed that this handwritten document was from the complainant and that the complainant was the person named by James Boyd; and
13 copies of the documents, with deletions, to which he had been given access, together with some other documents relating to the conduct of Mr Wassell’s interview with Mr Boyd.
14 In addition to the abovementioned material, Mr Boyd gave oral evidence and also called James Boyd to give oral evidence.
15 Mr Khoury, on behalf of the agency, tendered into evidence the following documents:
16 a statement, dated 5 December 2003, of Gregory John Wassell (“Mr Wassell”). The statement was marked ‘Confidential’. Initially confidentiality was only relied on for paragraph 10 of the statement. That was withdrawn at the hearing and Mr Boyd was provided with a full copy of Mr Wassell’s statement. In his statement, Mr Wassell, who is employed as a regulatory officer with the agency, gave evidence of the investigation he had conducted following receipt of a complaint dated 21 February 2003;
17 a Statutory Declaration by Arthur Akehurst, dated 15 January 2004, concerning the colour of paper used by the agency for facsimiles that are received in the Murwillumbah office;
18 a Notice of Intention to Inspect Property, dated 12 January 2004, from Mr P. Reagan, Senior Inspector (Regulatory) of the agency, to Mr L. Boyd concerning an inspection of the property on 17 February 2003; and
19 property searches of Mr Boyd’s property, a search of the registration of the business name ‘Finger Limeing Good’ and an ASIC extract of ‘Finger Liming Good Pty Ltd’. The business name is registered in the name of Mr Boyd and James Boyd, and the directors and shareholders of Finger Limeing Good Pty Ltd are Mr Boyd and James Boyd.
20 In addition to the abovementioned material, Mr Khoury, on behalf of the agency, provided the Tribunal, on a confidential basis, copies of the documents that are the subject of this application, with no deletions, a report concerning investigations by the agency dated 5 February 2004, correspondence from the complainant and copies of emails from other relevant third parties.
21 In addition to the abovementioned material (including the confidential material) the agency called Mr Wassell to give oral evidence and to be made available for cross-examination.
Relevant legislation
22 Part 3 of the FOI Act makes provision for any person to make an application for access to documents held by a government agency or a Minister (s.17 FOI Act). Where a person makes such an application the agency is required to determine whether access to the document is to be given or refused (s.24 FOI Act). Access can only be refused on specified grounds (s.25 FOI Act).
23 Section 25(1)(a) of the FOI Act provides that an agency may refuse access to the document where the document is an “exempt document”. The term “exempt document” is defined in s.6 of the FOI Act to mean the following:
24 In this case, the exemptions relied on are those contained in Clauses 4, 6, 7, and 13 of Schedule 1. These exemptions, so far as they are relevant, provide as follows:
“exempt document means:
(a) a document referred to in any one or more of the provisions of Schedule 1.”
25 Where a document contains information concerning the personal affairs or business affairs of a third party to the FOI application, ss.31 and 32 of the FOI Act provides that an agency is not to give access to the document unless it has taken such steps as are reasonably practicable to obtain the views of the relevant third party.
“4 Documents affecting law enforcement and public safety
(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected;
6 Documents affecting personal affairs
(a) to prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, or
(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, or
…
(e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including revenue law), or..”
7 Documents affecting business affairs
(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).
(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.
(a) A document is an exempt document:
…
(c) if it contains matter the disclosure of which:
13 Documents containing confidential material
(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and
(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.”
A document is an exempt document if it contains matter the disclosure of which:
…
(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.”
26 Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document where it is practicably to give access to a copy of the document from which the exempt matter is deleted and the FOI applicant wishes to be given such a copy.
27 Section 55 of the FOI Act provides that the Tribunal, when determining a review application is to ensure that it does not, in its reasons for its decision or otherwise, disclose any exempt matter.
28 Section 61 of the FOI Act provides that in proceedings for external review, the burden of establishing that the determination of the agency is justified lies on the agency or the Minister.
Submissions
29 Both parties provided the Tribunal with written submissions, which they supplemented during oral argument. Mr Khoury on behalf of the agency, relied on Clauses 4, 6, 7 and 13 of Schedule 1 of the FOI Act as being the grounds on which access to the deleted material had been refused. I will deal with each of these matters below.
30 The Applicant, in his written submissions of 19 January 2004, argued that the business affairs and confidential grounds on which the access has been refused could not be supported as this information was already in the public domain.
Reasons and decision
31 The role of the Tribunal is to determine whether the decision of the FOI reviewing officer of the agency is the correct and preferred decision having regard to the applicable law and the established facts (see s.63 Administrative Decisions Tribunal Act 1997).
32 The Tribunal has carefully considered all the material before it. As mentioned above, Mr Boyd did not seek access to those deletions that identified the complainant. He is seeking review of the determination to refuse him access to the remaining deletions.
33 As mentioned above, the onus is on the agency to satisfy the Tribunal that the exemptions relied upon do in fact apply.
34 As the information contained in the deletions in document A and document C differ from each other, I will use the following numbering system when referring to these deletions. The number in bold type is the number I have allocated to the deletion and the description that follows this number identifies the paragraph in the relevant document in which the deletion/s occur:
35 The remaining deletions in Document A and Document C relate to the identity of the complainant, and as mentioned above, is not the subject of review.
(a) Document A : No 1 paragraph 1
(b) Document C: No 1 body of email of 27 June 2002
No 2 paragraph 2, headed “NSW”
No 3 paragraph 3, headed “QLD”
No 4 paragraph 6, commencing “Mr Boyd purchased trees …”
No 5 paragraph 7, including the deletions in the parentheses commencing “(Please note that there is no ….)”
No 6 paragraph 8, with the words “purchased the following” in the first line and including the words in parentheses commencing “(See attached copies of Non-Propagation, …)
No 7 paragraph 9, commencing “According to Department of …”
No 8 paragraph 10, commencing “On 12th February 2003, …”
No 9 paragraph 11, commencing “I believe that Mr Boyd and ….”
No 2 name of sender of email of 27 June 2002
No 3 name of recipient of email of 26 June 2002
No 4 body of email of 26 June 2002
No 5 name of sender of email of 25 June 2002
Law enforcement exemption
36 It is convenient to firstly deal with the exemption relating to law enforcement. It is the agency’s contention that disclosure of the deleted material in each of the documents A, B, C and D would prejudice the investigation of any contravention of the law, in particular breaches of the Plant Diseases Act 1924.
37 The agency has already disclosed, to Mr Boyd, that part of the complainant’s letter (Document A) in which the complainant alleges that Mr Boyd has been involved in the unauthorised importation of grafted citrus trees from Queensland to New South Wales, contrary to Proclamation P124, made pursuant to s.4(1) of the Plant Diseases Act 1924. The Tribunal notes that s.26(1)(a)(ii) of the Plant Diseases Act 1924 creates an offence where a person has imported, introduced or brought into New South Wales any plant in contravention of a Proclamation made under that Act. The Plant Diseases Act 1924 also provides other remedies such as seizure of plants and power to destroy plants where they have been introduced into New South Wales contrary to that Act, which includes an introduction contrary to a proclamation made pursuant to the Act.
38 In this case, the relevant issues are whether, as a matter of fact:
39 On the basis of the confidential material filed before the Tribunal, I find that the agency was conducting an investigation under the Plant Diseases Act 1924 at the time of Mr Boyd’s FOI application, and that the investigation has been ongoing as at the date of hearing.
the agency is conducting an investigation of a contravention or possible contravention of the Plant Diseases Act 1924 ;
the material that has been deleted relates to that investigation; and
disclosure of the deleted material could reasonably be expected to prejudice that investigation;
the disclosure of the deleted material could reasonably be expected to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law to be ascertained; or
inhibit further candour, frankness and willingness of the complainant and other third parties to provide information in support of the investigation or possible prosecution in the future whether in this case specifically or generally.
40 I also find that deletion No 3, 5, 6, 7, 8 and 9 in Document A relate to this investigation and that, having regard to the circumstances of this application, a disclosure of this material could reasonably be expected to prejudice that investigation.
41 I also find that deletion No 1 and 7 of Document A and deletion No 4 in Document C, if disclosed could reasonably be expected to identify a confidential source of information relating to the enforcement or administration of the provisions of the Plant Diseases Act 1924.
42 In my opinion, the remaining deletions in Document A and Document C and the deletions in Document B and Document D are not exempt on the basis of cl. 4 of Schedule 1 of the FOI Act. The information in these deletions do not relate to an alleged breach of the Plant Diseases Act 1924 or the breach of another law, nor do they identify the complainant or a confidential source of information in respect of a contravention of the law.
43 Furthermore, there is no evidence before the Tribunal to support the agency’s contention that a disclosure of the deletions referred to in paragraph 33 above would inhibit further or future candour, frankness and willingness of the complainant or third parties to provide information to the agency for the purpose of investigating a contravention of the law.
Personal affairs exemption
44 For the deletions to attract the “personal affairs” exemption contained in cl. 6 of Schedule 1 of the FOI Act, the agency must show that:
45 It is well established that a corporation cannot be the subject of an exemption under this clause.
(a) the deletion contains information concerning the “personal affairs” of any person (other than Mr Boyd), and
(b) the disclosure of such information would be “unreasonable”.
46 Again, whether a document contains information about the “personal affairs” of a person is a question of fact to be determined from the circumstances of each individual case (see The Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin’s Case) and Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253). The term “personal affairs” is not defined in the FOI Act but it has been accepted that the term means “matters of private concern to an individual” (Young v Wicks (1986) 13 FCR 85 at 89).
47 It is the agency’s contention that the deletions in Documents A, B and C contain information concerning the “personal affairs” of the complainant and third parties. It has not been specific as to which deletions come within the terms of this exemption.
48 In my opinion, having regard to the material before the Tribunal deletion No 1, in Document A, arguably relates to the personal affairs of the complainant. However, as this deletion is exempt under cl 4 of Schedule 1 of the FOI Act and disclosure of it would enable the complainant to be identified, I have considered it no further.
49 In my opinion deletion No 1 in Document C also arguably contains information that is of private concern to the persons referred to in that deletion. However, the deletion in so far as it names particular persons is not a matter relating to the personal affairs of these persons.
50 The agency does not appear to have consulted the persons referred to in deletion No 1 of Document C, in regard to disclosure of the information relating to their personal affairs, however, in the circumstance in which Document C came into existence and the circumstances in which it was provided to the agency, in my opinion, the disclosure of the personal information (i.e. information other than the name of the person) of these persons would be unreasonable. In light of what has already been disclosed in Document C, it would be practical for the agency to give access to Mr Boyd of that part of the deletions in No 1 of Document C that do not relate to the personal affairs of named third persons. That is, pursuant to s. 25(4) of the FOI Act it would be practicable to give Mr Boyd access to that part of deletion No 1 which names the third persons and deleting the exempt personal information relating to those persons.
51 The remaining deletions, namely, deletions No 2, 4 and 10 of Document A, the deletions in Document B (other than those relating to the identity of the complainant), deletion No 2, 3 and 5 in Document C and the deletions in Document D do not, in my opinion, relate to the personal affairs of the complainant or any other third person. In relation to deletion No.10 in Document A, in my opinion this deletion is not exempt as it refers to the professional capacity of the person named.
Business affairs exemption
52 The courts have stated that the term “business, commercial or financial affairs”, as it appears in cl. 7 of the FOI Act, should not be narrowly construed (Re Saxon and Australian Maritime Authority (unreported, AAT, Cth, 19 June 1995 at 25)).
53 There are two limbs to cl 7(1)(c)(ii) of Schedule 1 of the FOI Act, of which only one limb needs to be satisfied. The first limb applies where it is established that the disclosure of the document in question "could reasonably be expected to have adverse effect on the business, professional, commercial or financial affairs of the third party". The second limb applies where it is established that the disclosure of the document in question “could reasonably be expected to prejudice the future supply of such information to the Government or to an agency".
54 Apart from the common requirement of “reasonableness”, each limb of cl. 7(1)(c)(ii) of the FOI Act is directed to a different issue. The first limb is concerned with there being “an unreasonable adverse effect” on the business, professional, commercial or financial affairs of the agency or the third party. This means that the agency must show that the effect of disclosure of the document in question will be adverse, that the adverse effect is unreasonable and that the adverse effect could reasonably be expected to occur (see Cossins, Annotated Freedom of Information Act New South Wales (1997), at 107.15).
55 On the other hand the second limb is concerned with the future supply of such information to the Government or agency. In this regard the approach is the same as that which applies to the confidential exemption contained in cl. 13 of the FOI Act as outlined below. That is, the question to be asked is whether the Government or its agency will be unable to obtain such information in future and not whether the particular business will provide the information in future (see paragraph 53 below).
56 The relevant deletions for the purpose of the business affairs exemption are deletion No 2 and 4 of Document A, deletions in the body of Document B, deletion No 1, 2, 3, and 5 of Document C and the deletions in Document D. The information contained in these deletions each relate to businesses of third persons. However, in light of the information in these Documents to which Mr Boyd has been granted access, in my opinion, these deletions do not relate to the business affairs or financial affairs of these third persons. They merely name these businesses and in the case of the business referred to in Document D, the address and contact details of that business. Accordingly, in my opinion the business affairs exemption does not apply to these deletions.
57 In the event, if I am incorrect and the deleted information referred to in paragraph 47 above does relate to the business affairs of third persons, there is no evidence before the Tribunal to establish that the disclosure of the deleted information will have an adverse effect on those affairs or the nature of any adverse effects. Nor is there any evidence that disclosure of these particular deletions would prejudice the future supply of such information. It is not sufficient for the agency or the third person to merely assert such adverse effect or prejudice. There must be evidence of such facts and in this case, where there has been a substantial disclosure of the contents of the Documents in question it is difficult to infer such adverse effect or prejudice from the circumstances in which the documents were created and came to be in the possession of the agency.
58 Accordingly, in my opinion, the deletions referred to in paragraph 47 above, are not exempt by virtue of the business affairs exemption contained in cl. 7 of Schedule 1 of the FOI Act.
Confidential Information Exemption
59 In order to be able to rely on the confidential information exemption contained in cl 13(b) of Schedule 1 of the FOI Act, the CCA must show that:
60 The rationale for this exemption is to protect the flow of confidential information to Government and its agencies. The object is to protect the public interest in Government and its agencies being able to fulfil their functions, many of which are dependent on the flow of confidential information.
(a) release of the document would disclose information obtained in confidence;
(b) disclosure would reasonably be expected to prejudice the future supply of such information to it; and
(c) the disclosure would on balance, be contrary to the public interest.
61 It is well established (see Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253 at [52]) that in order for information to be "obtained in confidence" it must be shown that it was "communicated and received under an expressed or inferred understanding that [it] would be kept confidential." (see Re Maher and Attorney General's Department (1985) 7 ALD 731 at 737 and Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 338). Confidentiality can be inferred from all the circumstances (see Wiseman v Commonwealth, unreported, Federal Court, 24 October 1989).
62 In respect of determining whether disclosure of the information would “prejudice” the future supply of such information to the agency, the test is not whether the particular confider whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in future. The test is whether the agency will be able to obtain such information in the future (see Ryder v Booth [1985] VR 870 at 872 and Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 341).
63 The agency contends that each of the deletions in Documents A, B, C and D are exempt on the basis of cl 13 of Schedule 1 of the FOI Act. They rely on the circumstances in which the documents were provided to it and the evidence of Mr Wassell. In his statement, Mr Wassell states that in order to perform its statutory functions the agency relies on receiving information of alleged contraventions of the Plant Diseases Act 1924, on a confidential basis, from members of the public. He goes on to state that if that confidentiality is not maintained, members of the public will be reluctant to provide this information and therefore prejudicing the agency in its statutory functions.
64 The difficulty with this application is that confidentiality has only been claimed in respect of the deletions and not for the documents as a whole. Having regard to the contents of the documents and the fact that they related to Mr Boyd this approach, in my opinion, was appropriate having regard to the objectives of the FOI Act and the agency’s responsibility under it.
65 I will firstly deal with the deletions in Document D. The material before the Tribunal does not establish that this particular document was provided in confidence and on this basis would not be exempt under Clause 13 of Schedule 1 of the FOI Act. Even if I am incorrect in this finding, the material before the Tribunal does not establish that the disclosure of the deletions would prejudice, in the relevant sense referred to in paragraph 53 above, the future supply of such information. The agency has specific powers to obtain documents of this type (see for example ss. 13 and 18 of the Plant Diseases Act 1924), and the third party named has not indicated that he/she would refuse to provide similar information in future.
66 In respect of the deletions in the body of Document B, I make the same findings as those relating to Document D and referred to above in paragraph 56. That is, while the document may have been provided in confidence initially, the substance of the document has been disclosed and it is difficult to understand on what basis confidentiality can be claimed in respect of the deletions. In any event, there is no material before the Tribunal to indicate that a disclosure of the deleted material would prejudice, in the relevant sense, the future supply of this information.
67 In respect of deletions no. 1, 2, 3, 4 and 5 of Document C, the material before the Tribunal indicates that the information contained in these deletions was not provided to the recipients of the emails in confidence. Indeed, the contents of the emails would suggest the contrary.
68 In respect of deletion no. 4 in Document C, I have already found that this deletion is exempt under cl. 4 and 6 of the FOI Act (see paragraph 32 and 39 above) so I have not considered this deletion further for the purposes of the exemption under cl. 13.
69 In respect of deletion no. 1 in Document C, which is a list of persons, Document B specifically mentions that this list is to be kept confidential by the agency. Accordingly, I find that this list of persons was provided to the agency in confidence. I have already found that these deletions, in so far as they contain personal information in respect of these persons, is exempt under cl. 6 of the FOI Act (see paragraph 40 and 41 above) and I will not consider the deletion in so far as it contains personal information any further. This leaves the names of the persons in the list.
70 While the list of named persons in deletion no. 1 has been provided to the agency in confidence, I find that there is no material before the Tribunal to establish that the disclosure of the names of these persons would prejudice, in the relevant sense, the future supply of such information to the agency
71 In respect of the remaining deletions in Document C (i.e. no. 2, 3 and 5) it is difficult to see how it can be claimed that these were provided in confidence. Even if it is accepted that these deletions were provided in confidence, I find that there is no material before the Tribunal to establish that the disclosure of information in the deletions would prejudice, in the relevant sense, the future supply of such information to the agency.
72 I make the same findings in respect of deletions no.3 and 4 in Document A. The remaining deletions in this document I have not considered further as I have already found that they are exempt under cl. 4 of Schedule 1 of the FOI Act (see paragraph 31 and 32 above).
73 In light of my abovementioned findings concerning deletion no.2, 4 and 10 in Document A, deletions in the body of Document B, deletions no.1 (insofar as it names third persons), 2, 3 and 5 in Document C and the deletions in Document D, it is not necessary for me to consider the “public interest” test in cl. 13(b)(iii) of Schedule 1 of the FOI Act
74 In conclusion, for the reasons stated above, I find the following deletions in Documents A and C are exempt:
75 In respect of the remaining deletions in documents A and C, and the deletions in Documents B and D, for the reasons stated above, I find that the information in these deletions are not exempt.
(a) Document A : deletion no. 1, 3, 5, 6, 7, 8 and 9 and Document C : deletion no. 4 - on the grounds that the information contained in these deletions is exempt under cl. 4 of Schedule 1 of the FOI Act
(b) Document C: deletion no. 1 in so far as the deletions contain information about the personal affairs of the persons named – on the grounds that these deletions are exempt under cl. 6 of Schedule 1 of the FOI Act.
76 The Tribunal orders that:
(a) the decision of the agency in respect of deletions no. 1 (in so far as these contain information about the personal affairs of the persons listed), 3, 5, 6, 7, 8 and 9 in Document A and deletion no.4 in Document C is affirmed;
(b) the decision of the agency in respect of deletions no.2, 4 and 10 in Document A, deletions in the body of Document B, deletions no.1 (insofar as it names third persons), 2, 3 and 5 in Document C, and the deletion in Document D is set aside;
(c) the agency is to provide Mr Boyd, within 28 days, with a copy of Document D with no deletions and a further copy of the Documents A, B and C with deletions of those matters referred to in paragraph (a) above; and
(d) the confidential material provided to the Tribunal by the agency to be returned forthwith.
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