City of Onkaparinga v Houlahan

[2015] SADC 91

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

CITY OF ONKAPARINGA v HOULAHAN

[2015] SADC 91

Judgment of His Honour Judge Slattery

12 June 2015

ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS

Application by the appellant for leave to appeal under section 40(1) of the Freedom of Information Act 1991 (SA) against the determination of the South Australian Ombudsman. The respondent applied for access to internally produced documents from the appellant relating for the management of a waste water plant. The respondent relies on an exemption under clause 6 and 9 of Schedule 1 of the FOI Act to deny access.

Held:

1. Leave to appeal granted.

2. That the appeal is allowed.

3. That the decision of the Deputy Ombudsman made on 19 February 2014 be set aside.

Freedom of Information Act 1991 (SA) s 40(1); District Court Act 1991 (SA) ss 42A, 42B, 42C, 42E, 42F; Environment Protection Act 1993 (SA); Ombudsman Act 1972 (SA) s 22, referred to.
Rann v SA Water and Bahnn (No 2) (1996) 189 LSJS 438; Bakewell v Macpherson; Clark v Macpherson (1992) BC9200236; Ipex Information Technology Group Pty Ltd v Department of Information Technology Services South Australia (1997) 192 LSJS 54; House v The King (1936) 55 CLR 499; Moore v The Registrar of Medical Board (2001) 215 LSJS 133; Minister for Education and Child Development v Chapman [2013] SADC 130; Re Anderson and Australian Federal Police (1986) 11 ALD 356; Re Aldred and Department of Foreign Affairs and Trade (1990) 20 ALD 264; Re Hudson and Department of the Premier, Economic & Trade Development [1993] QICmr 4; Fisse v Secretary, Department of the Treasury and Another (2008) 109 ALD 1; Perton and Department of Manufacturing & Industry Development (1991) 5 VAR 149; Commissioner of Police v District Court of New South Wales & Anor (1993) 31 NSWLR 606; City of Unley v Warnecke [2004] SADC 48; Re Mann v Commissioner of Taxation (1987) 12 LV 738; Hays v Federal Commissioner of Taxation (1956) 96 CLR 47; B and L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; Harrow Trust v Adelaide Hebrew Congregation Inc (2002) 221 LSJS 449, considered.

CITY OF ONKAPARINGA v HOULAHAN
[2015] SADC 91

1. This is an application of the City of Onkaparinga (‘Council’) as appellant for leave to appeal under section 40(1) of the Freedom of Information Act 1991 (SA) (‘FOI Act’) to the District Court of South Australia against the determination of the Deputy Ombudsman. The Ombudsman was dealing with other matters concerning the appellant, therefore the determination in question was made by the Deputy Ombudsman (‘Deputy’) on the Ombudsman’s behalf. On 19 February 2014 the Deputy varied a determination of the appellant (an agency), in the matter of an application under the FOI Act made by the respondent, Mr Houlahan.

2. This is an appeal under the Administrative and Disciplinary Division (see sections 42A, 42B, 42C, 42E and 42F of the District Court Act 1991 (SA) (‘District Court Act’)). Under section 42E of the District Court Act, I am required to give due weight to the decision being appealed against and the reasons for it and not to depart from the decision except for cogent reasons.

3. It is appropriate that I set out in summary form a short discussion of the operation of the FOI Act. It will then be necessary to make reference to section 39(10) of the FOI Act and the operation of Division 2 of Part 3 of the Act. The relevant propositions are as follows:

   1.A person has a legally enforceable right to be given access to an agency’s documents under the Act: section 12 FOI Act.

   2.Once an application is made to an agency then a decision must be made by the agency about whether it would provide the documents as requested: section 13 FOI Act.

   3.An agency may grant, defer or refuse access to the documents requested: section 19 FOI Act.

   4.An agency may refuse access to a document in a number of circumstances, including where the document is an exempt document: section 20 FOI Act.

   4.1An exempt document is a document which is classed as an exempt document by virtue of Schedule 1 to the Act: section 4 FOI Act.

   4.2One of the classifications of exempt document is those documents which meet the description of internal working documents: clause 9 Schedule 1 FOI Act.

   4.3A document is an exempt document if it contains matters that relate to any opinion, advice or recommendation that has been obtained, prepared or recorded or any consultation or deliberation that has taken place in the course of or for the purpose of the decision making functions of … an agency and, on balance it would be contrary to the public interest for the document to be provided: Schedule 1 Clause 9(1)(a)(b) FOI Act. There is no question but that Clause 9(1)(a) FOI Act applies in this case.

   4.4A document is also an exempt document if it contains matters the disclosure of which would found an action for breach of confidence or if it contains matters obtained in confidence the disclosure of which might reasonably be expected to prejudice the future supply of such information to the agency and would, on balance be contrary to the public interest: Schedule 1 Clause 13(1)(a)(b) FOI Act.

   4.5A document is an exempt document if it contains matters the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person living or dead. Personal affairs is defined (section 4) to include a person’s (a) financial affairs; (b) criminal record; (c) marital or other personal relationships; (d) employment records; (e) personal qualities or attributes but does not include the personal affairs of a body corporate: Schedule 1 Clause 6 FOI Act.

   4.6A document is an exempt document if it contains matters the disclosure of which would disclosure trade secrets of any agency or any other persons. There is no public interest test applicable to this aspect of exempt documents. A document would also be an exempt document if it contained matters consisting of information (apart from trade secrets) that has a commercial value to any agency or any other person and the disclosure of which could reasonably be expected to destroy or diminish the commercial value of the information and on balance would be contrary to the public interest: Schedule 1 Clause 7 FOI Act.

   4.7A document is an exempt document if it contains matters that would be privileged from production in legal proceedings on the ground of legal professional privilege: Schedule 1 Clause 10 FOI Act.

   4.8A document is an exempt document if it contains matters the disclosure of which could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of the agency’s function and would on balance be contrary to the public interest: Schedule 1 Clause 16(1)(a)(iv) FOI Act.

   4.9A document is an exempt document if it relates to an agency that is engaged in commercial activities and it contains matters the disclosure of which could prejudice the competitiveness of the agency in carrying on those commercial activities: Schedule 1 Clause 16(2) FOI Act.

   5.If an agency has made a decision, to refuse the application it is obliged to notify the applicant in writing of the determination and identify the rights of review and appeal conferred by the Act as well as the reasons for refusal including the grounds for refusal under section 20(1) of the Act. If the ground for the refusal is that the document is an exempt document the notice must state the particular provision of Schedule 1 by virtue of which the document is said to be an exempt document and the reasons why disclosure of a document would be contrary to the public interest: section 23(1), (2)(b)(f) FOI Act.

   6.A person who is aggrieved by an agency decision may seek an internal review of that decision: section 29 FOI Act.

   7.An application who is dissatisfied with the agency’s internal review may seek an external review: section 39(1) and (2) FOI Act.

   8.In conducting a review, the Ombudsman may carry out an investigation into the subject matter of the application and exercise the same investigative powers as are conferred on the Ombudsman by the Ombudsman’s Act: section 39(1), (2) and (5).

   9.On an application, the Ombudsman may confirm, vary or reverse the determination the subject of the review: section 39(11).

4. It is necessary to mention section 39(10) FOI Act in this context. A relevant review authority is not permitted to make any determination about access being given to a document unless the Ombudsman has taken steps as are reasonably practical to obtain the views of any interested person as to whether or not the document is an exempt document under a provision of Part 2 of Schedule 1. Part 3 Division 2 concerns consultations. Section 25 FOI Act concerns documents effecting inter-governmental or local governmental relations. Section 26 FOI Act relates to documents affecting personal affairs and requires that an agency must not give access to a document to which the section applies unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document: section 20(5) and section 26(1)(2)(3).

5. For reasons which I will develop later in this judgment, the content of the report which is the subject of this application for review and for leave to appeal contained material about the performance of the employees of the appellant Council. Some of the information is specific, other portions of the information is general. Despite the content of Part 3 Division 2, I am of the view that it is not necessary for the agency to take any steps to obtain the views of the persons concerned (as described above) before publication of the report. I do not think that the material within the report falls within the description of personal affairs as defined under the FOI Act. The Council is in no better or worse position than the employees to inform this Court of the interests of those persons. A review of the grounds of appeal indicates that an issue of procedural fairness in respect of those employees is a ground of appeal before the court. One part of this judgment concerns issues of procedural fairness. But that question is different from the questions arising under Division 2 of Part 3 of the FOI Act. If the content of the report does not relate to the personal affairs of the employees as defined under the Act, it would not be necessary for the ‘agency’ to obtain the views of those persons as required under section 26(2) of the FOI Act.

6. That finding does not forestall or postpone any right or interest of those employees in the event that there has been a lack of procedural fairness in and about the preparation of the report. On the question of the interests of affected persons, I refer to and adopt the discussion of her Honour Judge Cole in her Honour’s decision in Department of Planning and Local Government v Chapman.[1]

   [1] [2012] SADC 120 at [30] et seq.

7. The principles relating to a denial of procedural fairness are well established. I refer to the following decisions: Annetts & anor v Mccann & ors;[2] Kioa & ors v West & anor;[3] Szbel v The Minister;[4] Stead v State Government Insurance Commission.[5] I will deal with this aspect late in these reasons.

   [2] [1990] 170 CLR 596.

   [3] [1985] 159 CLR 550.

   [4] (2006) 228 CLR 152.

   [5] (1986) 161 CLR 141; see also Ibester v Knox City Council (2015) HCA 20.

8. On the question of natural justice, it is necessary to state at the outset that my final decision about the application of the rules of natural justice to the position of the employees of the Council are not to be read as a prescription of the way in which all employers must behave in relation to all employees. The comments that I have made are specifically confined to the very peculiar circumstances of this case and are not, in any sense, a prescription that, for example, would entitle an employee to refuse to participate in an enquiry properly conducted by an employer concerning a particular issue involving the employer. Those circumstances are governed by the terms of any contract of employment between the employer and the employee as well as the usual fiduciary obligations owed by any employee to an employer. The question of the application of the rules of procedural fairness in this case turn on the quite unique circumstances of the investigation that was conducted, the report that was prepared and then the use and dissemination of that report as has occurred in this case. The circumstances of this case may be seen as a significant departure from the usual circumstances that would obtain in any employer-employee relationship. This decision must be viewed in and understood in that background.

   The Plant and the investigations

9. The Sellicks Beach Waste Water Treatment Plant (‘Plant’) is one of several managed by the appellant.  The Plant receives waste water from domestic homes. The waste water is treated in a system which is septic in nature. As typically occurs in a septic system, waste water is discharged into a sub ground overflow irrigation system.  Usually this occurs by discharge to an underground soakage trench, which in this case was to a Council owned reserve.  Due to the size of this system, it operated under a licence from the Environment Protection Authority (’EPA’). 

10. The Council retained a properly qualified entity Trility Ltd (‘Trility’) to manage the operations of the Plant. In turn, a part of the Council’s staff were involved in overseeing the management of the Plant by Trility.

11. During the 2011 calendar year, the Council received a number of complaints about the pooling of water in and around the plant.  

12. A problem occurred with the irrigation of the surplus water process and pooling of water in the reserve occurred. This pooled water contained harmful germs and bacteria.  An issue arose about whether the Council was aware of the problem as early as May 2011 up to and including March 2012.  In that period samples of the water were found in the Reserve, taken and tested. By that time the ‘overburden’ of waste water was affecting neighbouring properties.

13. Following those complaints, the Council provided a notification to the Environment Protection Authority (‘EPA’) in July 2012 and in turn received a notification from the EPA.  The EPA then commenced enquiries about the Plant. 

14. The Council made disclosure to the EPA on 23 July 2012. It had received a number of complaints throughout the year 2011.  During the whole of that time the Council was subject to a self reporting obligation under its licence with the EPA.  

15. Under the Environment Protection Act 1993 (SA) (‘EPA Act’), a conscious failure to self report as required may constitute an offence. An offence, if proved, may attract a large fine. It is also an offence to cause material harm to the environment.  Sanctions for such a breach and other related breaches are set out in the EPA Act. The above recital of facts concerning these statutes is not intended to disclose any conclusion about or to point to the possibility of an offence having occurred. The recital of this material identifies the potential seriousness of the issue with which any internal report of the Council on the topic is required to deal. They are matters of public and private importance. This is emphasised when it is known that the Council operated several such plants.

16. The Council decided that a report should be produced following the complaints from the public.  The intended purpose of the report was to determine the appropriate action to respond to the EPA notification.  The person in Council appointed to prepare the report was Mr A.G., Manager of Governance at the Council at the time.

17. The Ombudsman also initiated an investigation about the Plant (‘Ombudsman Investigation’) following a whistle blower complaint received on 8 August 2012.  The Ombudsman Investigation started on about 23 August 2012 and the Ombudsman provided a report on 30 September 2013.

18. The Ombudsman Investigation required the Council to provide background information concerning the Plant, and from time to time information was provided by the Council to the Ombudsman in response to those requests.  Within the Ombudsman Investigation a number of documents were provided by the Council by agreement with the Ombudsman. They were:

    -the Governance Report prepared by Mr G dated 7 December 2012 ‘Governance Report’ ‘Document 1’;

    -a letter from the Council dated 7 December 2012 comprised of some 4 pages which sets out responses to a number of matters contained within the report ‘Document 2’; and

    -a progress report also prepared by Mr G dated 13 March 2013 which, as its name suggests, reports upon the implementation of remedial actions subsequent to the governance review conducted by Mr G (‘Document 3’),

    collectively, the ‘Disclosed Council Documents’.

19. As appears from the dates of the Disclosed Council Documents, they were provided to the Ombudsman for the purposes of assisting the Ombudsman in carrying out the investigation following the receipt of the whistle blower complaint. Thus section 22 of the Ombudsman Act 1972 (SA) (Ombudsman Act) will require consideration in light of those facts.

    The Governance Report: Circumstances of creation

20. The Council’s CEO informed the Ombudsman that the Council management team was conducting an internal review of the incidents surrounding the complaints about the Plant (this internal review became the Governance Report).  The Council submitted that it offered to provide a copy of the Governance Report to the Ombudsman.  On 26 November 2012, the Ombudsman requested a copy of the Governance Report be provided to him in order to complete the Ombudsman Investigation.  He requested that it be provided by 7 December 2012 and this request was fulfilled by the Council.  It may be seen that little time was provided for the Council’s investigations to be carried out in order to provide the Ombudsman with the Governance Report by the date set. I think that too little time was provided to the Council for the preparation of this report. The brevity of the time allowed for the preparation of the report is the genesis of many of the issues with which this decision is concerned. One of those issues and perhaps the most important is that a report was produced and tendered to the Ombudsman without any proper review and without any regard for the staff of Council whose actions (or inactions) were the subject of comment in the report. This was a significant failure in process and control by the Council. It has had profound consequences and led to an inability to achieve any hermeneutic consistency about the report itself.

21. The Ombudsman indicated that he would rely upon the contents of that Governance Report and not conduct his own separate enquiry on the same topic.  It was on that basis that the Council undertook to provide the Governance Report to the Ombudsman.

22. A matter which is intrinsic to this appeal is that the Governance Report was prepared by an employee of the Council, described as Manager-governance of the Council (the ‘manager’) following an internal review.  The staff of the Council were required to comply with the requests of the manager as the investigator and to provide to him all of the information that he required.  This also included an obligation to answer any questions put to them by the manager.  It is important to emphasise this obligation falling upon employees (as part of the investigation process) as employees whilst also recognising the seriousness of the issues with which the manager was dealing.

1. The staff of the Council were not informed of the charter or the terms of reference under which the manager operated.  Cooperation with the manager as the investigator was compulsory under their employment with the Council.  The staff were not given any opportunity to clarify and so properly understand (from their perspective) the nature of the enquiries made by the manager.  They were not able to clarify any answers given to him such that they might better or differently explain their position.  The employees were not given an opportunity to know or comment upon the evidence given by other employees or the facts, matters or circumstances surrounding or relevant to the evidence given by other persons.

2. The employees had no legal representation; they were not informed that part of the remit of the manager as investigator was to comment upon legal issues.  The employees did not know how far or to where the investigation would reach.  The report was not published as a draft.  No copies of any draft report were circulated to any members of the executive or staff of the Council.  No opportunity was given to any member, officer or employee of the Council to make any comment upon any finding of fact, recommendation or conclusion within the report before it was submitted as a final report.  No opportunity was given to the Council or any of its employees to seek to challenge findings, clarify issues, provide further information or to lead further evidence on any particular topic.  No thought appears to have been given to the fact that, potentially at least, the manager was investigating and reporting upon matters that are serious and that carry quite substantial legal consequences whilst not having or being assisted by persons with legal training.  I consider that these are very significant matters.

3. I am not necessarily concerned here with the events that led to the preparation of the report or their sequelae. As a result of other circumstances and events, it is now clear that the EPA dealt with the notifications of the relevant circumstances by the Council, the time Council took to notify the EPA of the circumstances and the results of the Council’s actions.  The EPA undertook its own enquiries of the Council after the Council reported these matters to it.  The EPA reached its own conclusion that it was satisfied with the information received and the arrangements put into place by the Council and took the matter no further.  Those matters are not relevant to this judgement.

   Freedom of Information: Application

4. On 19 March 2013 the respondent made a request under the FOI Act to the Council for access to the Governance Report and all associated documents (being the Disclosed Council Documents). The Council refused the request and denied access to the documents. The Council relied upon the exemption under clause 6 and clause 9 of Schedule 1 of the FOI Act. The respondent sought an internal review of that decision and following that review the Council determined that the material was exempt under clauses 6, 7 and 9 of Schedule 1 of the FOI Act and section 18 of the Ombudsman Act.

5. Pursuant to the FOI Act, Mr Houlahan applied for an external review of this determination.  The Ombudsman who then referred the application for review to the Deputy Ombudsman.  On 18 April 2013 the Deputy wrote to the appellant indicating that Mr Houlahan had applied for a determination on his freedom of information application and also requested six different types of documents.

   Freedom of Information: Provisional Determination by the Deputy

6. On 14 October 2013 the Deputy made a provisional determination relating to the Disclosed Council Documents, which had been provided to the Ombudsman for the Ombudsman Investigation, and sent this provisional determination to the Council. 

7. The Deputy determined that the second and third documents were exempt and that the Council had correctly refused the disclosure of those two documents. In light of the nature of each of the three documents and the interconnections between them, it is difficult to comprehend how the Deputy came to this provisional determination.

8. In summary the Deputy formed the view that the content of the report did not satisfy the requirements of the Act which could lead to it being withheld from publication and that disclosure of the report would not be unreasonable. The Deputy also formed the view that the report was both personal and not sufficiently specific to individuals or groups of individuals to be controversial. The public interest in disclosure of the document was not outweighed by the adverse factors to the public interest flowing from the disclosure of the document. The factors in favour of publication were identified as follows:

   -fulfilling the objects of the FOI Act to promote openness and accountability of government

   -the principles that must be observed by a council in the performance of its roles and functions under section 8(a) of the Local Government Act 1999, namely to provide ‘open, responsive and accountable government’

   -disclosure would contribute to debate on a matter of community interest

   -disclosure would enhance scrutiny of the council’s decision making processes

   the significance of the issues discussed in the document to the broader community.

9. The Council then confirmed to the Deputy that it opposed the Freedom of Information application. The grounds of opposition stated were clauses 6, 7 and 9 of Schedule 1 of the FOI Act and section 18 of the Ombudsman Act. There appears to have been a misunderstanding about the breadth of the scope of the request made by Mr Houlahan. That was resolved and he narrowed his focus of request to three documents, only the first of which is now relevant to my considerations here.

   Freedom of Information: Final Determination by the Deputy

10. The decision of the Deputy was prepared by 30 September 2013 and was finalised after the response of the Council of 30 January 2014.  The final determination of the Deputy was dated 19 February 2014.  For reasons that are not completely clear to me, except that I am told that a misunderstanding occurred in the offices of the Ombudsman, a portion of the provisional report was provided within the final determination of the Deputy.  The final determination and the provisional determination were relevantly unchanged.  The letter of the Deputy of 19 February 2014 set out the appeal rights of any person aggrieved.

11. In her final determination, the Deputy was first of the view that there was insufficient specificity of relevant persons in the report to justify any blanket objection to the publication of the document.  The Deputy also took comfort from the fact that the applicant, Mr Houlahan, did not wish to pursue access to the names or positions of any individuals identified therein.  This gives some indication of the general scope of the information within the report and provides an early indication that the document contains particular types of information about events, individuals or both.  In turn, that also provides an indication of an interest in events and the circumstances leading to events.

12. The determination of the Deputy then went on to consider other grounds of objection such as matters concerning the business affairs of other parties, documents attracting legal professional privilege, confidential information and documents concerning the information of agencies.

13. The subject of this proceeding is the FOI determination by the Deputy under the FOI Act. The appellant Council appeals against the decision of the Deputy dated 19 February 2014.[6] Not all grounds have been pursued and it is only necessary for me to address the issues and grounds canvassed in the appeal.

    [6] Exhibit R1.

    Exclusion from proceedings

14. In this appeal the respondent and/ or his solicitors have been excluded from a large part of these proceedings.  This follows an order made by Judge Chivell in this action on 22 August 2014.  These orders have a mandatory operation.[7]   The reasons for the making of those orders by the court will become apparent later in this judgment.  One difficulty that arises as a result of those orders is that a large part of the discussion in this judgment must be quite guarded so that particular matters are not disclosed. This is the position even though the information concerning people, matters, and things is pivotal to the decision but the court is not in the position to fully disclose that information. Courts have dealt with such situations before in the same way: Bakewell v Macpherson; Clarke v McPherson.[8]  Therefore the expression of my opinion in this judgement will be slightly circumspect but not in a way that prejudices the respondent, Mr Houlahan.

    THE LAW:  FOI ACT

    FOI Act -  Relevant Provisions

    [7] Rann v SA Water and Bahnn (No 2) (1996) 189 LSJS 438.

    [8] (1992) BC9200236.

15. Schedule 1 of the FOI Act sets out those documents which are exempt documents. There are three parts to the schedule:

16. Part 1 relates to restricted documents such as Cabinet documents, Executive Council documents, and the like.

17. Part 2 sets out a description of documents requiring consultation.  It refers to documents affecting inter-governmental or local government relations, documents affecting personal affairs, exempt electoral records, documents affecting business affairs, and documents affecting the conduct of the search.

18. Part 3 is a general catchall and is described as “other documents”.  For present purposes there are three main clauses within this Part which are relevant here. They are clauses 9, 10 and 13.

    9—Internal working documents

    (1)         A document is an exempt document if it contains matter—

              (a)         that relates to—

    (i)any opinion, advice or recommendation that has been obtained, prepared or recorded; or

    (ii)any consultation or deliberation that has taken place,

    in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency; and

              (b)         the disclosure of which would, on balance, be contrary to the public interest.

    (2)         A document is not an exempt document by virtue of this clause if it merely consists of—

              (a)         matter that appears in an agency's policy document; or

              (b)         factual or statistical material.

    10—Documents subject to legal professional privilege

    (1)A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

    (2)A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document.

    …

    13—Documents containing confidential material

    (1)A document is an exempt document—

    (a)if it contains matter the disclosure of which would found an action for breach of confidence; or

    (b)if it contains matter obtained in confidence the disclosure of which—

    (i)might 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.

          (2)         A document that is a contract entered into by the Crown or an agency after the commencement of this subclause is not an exempt document by virtue of subclause (1) unless—

    (a)it contains matter the disclosure of which would, under a term of the contract, constitute a breach of the contract or found an action for breach of confidence; and

    (b)that term of the contract has been approved by—

                    (i)         in the case of a contract entered into by the Crown—a Minister; or

                    (ii)         in the case of a contract entered into by a State Government agency—the responsible Minister for the agency; or

                    (iii)         in the case of a contract entered into by an agency that is not a State Government agency—the agency.

    (3)Subject to subclause (4), a Minister may, by instrument in writing, delegate the power to approve a term of a contract under subclause (2) to a specified person or to the holder of a specified office.

    (4)A delegation under subclause (3) may be made subject to such conditions and restrictions as the Minister thinks fit and specifies in the instrument of delegation.

    (5)A delegation by a Minister under subclause (3) is revocable at will, and does not derogate from the power of the Minister to act personally in any matter.

    (6)If a Minister or agency approves a term of a contract in accordance with subclause (2), the Minister or agency must, as soon as practicable, notify the Minister administering this Act, in writing, of that fact.

    (7)The Minister administering this Act must, in a report under section 54, state the number of contracts containing terms approved in accordance with subclause (2) during the period to which the report relates.

19. In order to fulfil the requirements of clause 9, a document must relate to opinion, advice or recommendations that have been obtained or prepared in the course of or for the purpose of decision making functions of the government, a minister or an agency (a municipal Council such as the appellant is an agency) and secondly the disclosure of which would on balance be contrary to the public interests. It is therefore necessary to apply both tests.

20. Unsurprisingly there is no public interest test under clause 10 because it deals with a recognised head of privilege, Legal Professional Privilege.

21. Under clause 13(1) (which contains a public interest test) if a disclosure of a document would found an action for breach of confidence, then the document is an exempt document. Alternatively if the document is obtained in confidence which might reasonably be expected to prejudice the future supply of such information to the Council and would be, on balance, contrary to the public interest, it is exempt.

    FOI Act - Application to the Case at Hand

22. According to the chronology that has been set out above, the Governance Report was not specifically prepared by the Council to respond to an investigation under the Ombudsman Act.  The decision to prepare the Governance Report was part of a response to the perceived problem with the Plant deriving, in part, from the information already obtained by the Council but also in response to the whistle blower issue which formed the basis of the Ombudsman Investigation.

23. The Deputy also did not accept the argument of the Council under clause 6 (2) of the FOI Act. That clause is found under Part 2 of the exemption clauses under Schedule 1 and reads as follows:

    6 – Documents affecting personal affairs

    1.…

    2.A document is an exempt document if it contains allegations or suggestions of criminal or other improper conduct on the part of a person (living or dead) the truth of which has not been established by judicial process and the disclosure of which would be unreasonable.

    3.A document is not an exempt document by virtue of sub-clause...2 merely because it contains information concerning the person or by or on whose behalf an application for access to the document is made.

    The Deputy rejected the suggestion that any content of the report is directed at a particular relevant officer.

24. The Deputy also rejected any suggestion that clause 7 (1) (c) provided an exemption in respect of the report. In order to consider this exemption proposition, it is necessary to understand that the report contains a series of exchanges and information about the retainer between the Council and Trility concerning the management of the Plant.

25. Clause 7 (1) (c) reads as follows:

    7 – Documents affecting business affairs

    1. A document is an exempt document

    (a) …

    (b) …

    (c) if it contains matters –

    i. consisting of information (other than trade secrets or information referred to in paragraphs (b)) concerning the business professional commercial or financial affairs of any agency or any other person; and

    ii. the disclosure of which –

    A.     could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to (the Council); and

    B.     would, on balance be contrary to the public interest.

26. The Deputy recognised that some of the documents forming part of the report contained material connected to the business affairs of the Council and a number of third party external contractors engaged by the Council.  The Deputy was unable to determine whether or not the document concerned the professional affairs of the agency.

27. When looking at the public interest (for clauses 7(1)(c) and 9(1) of the FOI Act) the Deputy decided that it was necessary to show that, on balance, the public interest factors against disclosure outweighed the factors in favour of the disclosure and merely showing that something adverse to the public interest was likely to flow from the disclosure of the document was not sufficient.[9] The focus of the Deputy’s approach was centred largely upon section 8(a) of the Local Government Act 1999 (SA) which required that a Council provide “open responsive and accountable government”. The Deputy thought that disclosure of the report would contribute to debate on a matter of community interest and disclosure would enhance scrutiny of the Council’s decision making processes and therefore be relevant to broader discussions in the community. It is not clear to me how or why the Deputy came to this conclusion because there is no discussion in the decision that informs this balancing exercise.

    [9] Ipex Information Technology Group Pty Ltd v Department of Information Technology Services South Australia (1997) 192 LSJS 54 at [70].

28. Following the release of the provisional determination, further information was sent to the Deputy concerning the relationship between the Council and Trility.  Following the provision of that information, on 19 February 2014, the Deputy sent her final determination to the Council.

29. Prior to the release of the final determination some aspects of the application had changed. Mr Houlahan did not wish to pursue access to the names or positions of the individuals identified in the report. The Deputy was satisfied that if the names and positions of individuals were deleted from the report there would be no other information in the document which would identify any individual. She was, therefore, of the view that clause 6(1) or 6(2) would no longer apply to create the exemption. Inferentially at least, the Deputy had formed the view that the report as it stood contained information about the personal affairs of a person and that the release of that information was contrary to the public interest. Once there was redaction of the relevant names of the persons, there would not be any need to protect any personal affairs and the public interest test would not arise. Assuming the sustainability of this inference, this discloses a changed position from the provisional determination of the Deputy.

30. On the question of the application of clause 7(1)(c) (documents concerning the business affairs of other parties) the Deputy contacted the four interested parties who had provided professional services and whose correspondence to and from the Council were copied into the report. The Deputy asked if there was any objection to the release of this information. It appears to follow that the Deputy was sufficiently concerned to ascertain the attitude of those entities to the relase of their correspondence with the Council. Wallbridge and Gilbert Consulting Engineers, did not object to the release. The other three objected. The Deputy found that she had not received any persuasive evidence to show how the release of the information could reasonably be expected to have an adverse effect on the parties’ business affairs. That is despite the fact that, for example, Trility had responded and objected to the release of any information that concerned its business affairs saying:

    …there is nothing on the face of the documents which suggest what the benefits in terms of public interest are other than to disclose commercial information which is otherwise protected by confidentiality obligations under the contractual arrangements to a private person…

1. The Deputy appears to have accepted that there was a confidential arrangement made between Trility and the appellant.  The Deputy has only indicated that she was not persuaded.  She does not indicate the relevant tests applied by her on the question of persuasion, or the level of persuasion that would be needed to satisfy her. No basis is provided about why the Deputy was not persuaded or what she may have taken into account in forming her view.

2. I have now had the opportunity to read this material. It may largely be described as private correspondence between the providers of services and the Council. In the usual course it would not be in the public domain because it relates to the provision of services and the cost of those services.

3. In this case one important issue was the discovery of the excess water from the treatment plant managed by one of the providers. It is to be assumed that this correspondence with commercial providers would in the usual course be treated as confidential. This does not forestall the public interest which is to be balanced against the purely private interest in maintaining confidentiality. The extent of that private interest has a number of features: they include maintaining a competitive advantage; keeping in confidence opinions expressed from time to time about relevant issues; keeping in confidence material that would to the untrained eye appear to be admissions or conclusions of overt failures or wrong doing. The public interest ‘balancing’ issues include the identification of issues, the identification of the need to deal with issues, the policy issues in play, the question of public safety, the issue of the need for the public in general and the public in the locality to know about and understand the problem at hand.

4. In the balance of these matters I have formed the view that the disclosure would not be contrary to the public interest. This is despite my acceptance of the strength of the argument of the service providers. These are plainly matters of public importance. One matter of minor significance is that as is understood generally in the commercial world, some aspects of commercial confidence wane to varying degrees over time. This is part and parcel of commercial life. Therefore, I agree with the decision of the Deputy even though the Deputy has failed to properly consider the issues before her on this ground. At the least, the Deputy should have indicated those matters that she considered in making a decision on balance.

5. The Deputy also accepted the claim for legal professional privilege under clause 10(1) concerning parts of pages 3, 7, 12 and 74 of the document. The Deputy rejected any claim for privilege in relation to part of the content at page 7 of the report. No issue was raised in relation to that matter in this appeal. I think that the Deputy’s decision was correct.

6. The Deputy then addressed the question of public interest and the redacting of parts of the document.  After reciting the submissions of the Council, the Deputy said:

   In my view, [the Governance Report] appears to primarily focus on the overall governance of the agency, rather than conduct of any individual members of staff. In any event, I consider the de-identifying of individuals in the document addresses the concerns expressed by the agency. On the basis of the Chief Executive’s meeting with the Ombudsman and Mr Adams, the Chief Executive would appear to be in agreement with my view.

   I am not persuaded that the document would be misconstrued if released is a public interest factor against disclosure of the document. In any event, the agency can also correct any misinterpretations that might occur.

7. There are several concerning features about these comments. The first is that the Ombudsman appears to accept that although the primary focus is the overall governance of the agency, implicitly a secondary focus is the conduct of individual members of staff. My reading of the documents suggests that the focus or the conduct of staff members is more than merely secondary. Accepting only for the sake of discussion the characterisation made by the Deputy, it is clear that she must accept at least a secondary focus is the conduct of individual members of staff. This, to an extent, contradicts her earlier approach in relation to the application of clause 6 of Schedule 1 of the FOI Act.

8. The Deputy then addresses the question of “de-identifying individuals”.  She refers to a meeting between the Council CEO, the Ombudsman and Mr Adams.  The content and outcome of that meeting is seriously in dispute.  The dispute is that the Council does not accept that such a statement was made by the CEO.  The Council does not accept that the CEO had any actual or implied authority to bind it, as suggested by the Deputy.  Nor did the CEO have any ostensible authority to bind the Council.  These are very important issues that must be resolved.  It is also unfortunate that the Deputy has chosen to rely upon her understanding of something said by the CEO without first ensuring that the CEO had sufficient authority to bind the Council or, alternatively, that the Council had ratified what was said by the CEO.  An employee, even a senior employee, is not able to clothe himself/ herself with authority unilaterally.  The legal principles guiding the Council resolution structure are very well known and understood.  They exist for a purpose, including obviating the possibility that an unauthorised person may purport to bind the Council.  The Deputy does not appear to have given consideration to these principles.

9. The appellant Council also does not accept that the basis proposed by the Deputy to “de-identify individuals” addresses the concerns about the identification of individuals and the exemptions claimed under clause 6 of Schedule 1 of the FOI Act.

10. I refer also to the approach of the Deputy set out in clause 68 of the determination.  A number of questions immediately arise.  They include: how will the Council ever know that a misinterpretation has occurred; how will the Council ever know the effect of that misinterpretation upon the staff member involved and the future employability of that staff member; how will anyone ever know how a misinterpretation may be construed by any person who wishes to act in a particular way based upon that misinterpretation.  These are not matters of mere conjecture.  They are serious matters and the Deputy has completely failed to address them. In my opinion the Deputy’s method of reasoning is fraught at best.

    JUDICIAL REVIEW

    Cogent reasons to depart

11. It is not necessary for me to identify any particular error in the Deputy’s exercise of her discretion.[10]  In order to depart from the decision of the Deputy I must be satisfied that there are cogent reasons to do so.  It is accepted that the test of cogent reasons is expressed in a way that is intentionally different from the test that may apply the principles enunciated in House v the King.[11]  The authority of this Court is to the effect that it is not necessary for the Court to identify any error in the exercise of the decision maker’s discretion.[12]  That question is anterior to the question of the appropriate applicable test of cogent reasons. That is because due weight must be given to the decision being appealed against and the reasons for it.  I should not depart from the decision except for cogent reasons. Therefore, appropriate status must be given to the decision being appealed against.  That is the approach that I have applied in this matter.

    [10] House v The King (1936) 55 CLR 499 at [504] – [505].

    [11] 55 CLR 499 at [504] – [505].

    [12] Moore v The Registrar of Medical Board (2001) 215 LSJS 133; [2001] SADC 106.

12. For the reasons that follow, I find that there are cogent reasons to depart from the decision of the Ombudsman although it is my view that a redacted copy of the report should be made available to Mr Houlahan. The content of that report is a matter to be determined after the Council has had the opportunity to consider these reasons. The Council therefore has only succeeded in part in this appeal.

13. For the reasons set out at the end of this judgement, it is necessary for the appellant to bring in to the Court a version of the form of the report properly redacted in accordance with the views that I have expressed in this judgment.  I will consider the content of that redaction and, if necessary, I will publish further reasons once I am satisfied about the proper redactions to be made to the document.

14. I acknowledge that following submissions made on behalf of the appellant that a form of redacted copy of the report was provided to the Court.  I will not now decide if that form of the report, to be published based upon these reasons, complies with the terms of these reasons.  I will be the final arbiter of that issue.  The appellant must be given the opportunity to view these reasons and consider that document afresh. It may be that nothing will change but that is a decision to be made after the appellant has had the opportunity to make further submissions.

    A discussion of the authorities in the context of the case at hand

15. In Bakewell v McPherson; Clark v McPherson[13] the Full Court of the Supreme Court of South Australia decided upon two appeals about issues for judicial review concerning an investigation conducted by McPherson into financial matters relating to the operations and financial position of the State Bank of South Australia. For present purposes only one of the two issues raised in that action is relevant: whether the plaintiffs were being denied natural justice. Mr McPherson was the Auditor General of South Australia and was appointed under section 25(1) of the State Bank Act to investigate and report on the affairs of the Bank. The terms of the appointment of the Auditor General were confirmed by instrument executed by the Governor. Under the powers prescribed in the Public Finance and Audit Act 1987 (SA), the Auditor General had the power to require the appearance of witnesses, the production of documents and the production of information. There were other auxiliary and consequential powers of compulsion available to the Auditor General. A time limit was set for the Auditor General to produce his report. After producing part of his work and forming tentative conclusions, the draft of these conclusions were circulated to the plaintiffs for their consideration and comment prior to formal publication. The plaintiffs were invited to make submissions and adduce evidence about the chapter or chapters pertinent to them. The Auditor General intentionally focussed on timing issues because of the time prescriptions within his terms of appointment by the Governor. The plaintiffs wanted more time, wished to give evidence, produce documents and be given the transcript and statement and documents produced to the Auditor General touching upon the subject matter of the draft reports. The Auditor General would not agree with all of the requests of the plaintiff. The plaintiffs sought orders from the Court restraining the publication of these draft chapters until proper opportunity to respond had been given to them, for declarations and for other relief.

    [13] (1992) BC9200236.

16. King CJ dealt with the difficulty of disclosing the confidential evidential material in the action. His Honour had to grapple with the problem of disclosing issues in a way that did not disclose the matters about which the plaintiffs complained. His Honour said as follows:[14]

    Before turning to the grounds upon which relief is sought, it is necessary to refer to the confidential nature of the evidentiary material in the actions. The purpose of these actions is to protect the business and personal reputations of the plaintiffs against what they claim to be unjust criticisms. If those criticisms became public knowledge before the plaintiffs had had a proper opportunity to answer them, the purpose of the actions would be defeated. For that reason an order was made by the Court prohibiting publication of the evidentiary material on which the actions are based. For the same reason, I consider it to be necessary to avoid reference to the nature of the criticisms in this judgment. It is sufficient to say that the criticism of the plaintiffs expressed in the draft chapters would if embodied in the final report and published, have the capacity of impairing the plaintiffs’ business and personal reputations. The need to avoid reference to the nature of the criticisms creates difficulties for the adequate expression of the reasons for this judgment, and it will be necessary to understand the general references made in these reasons against the background of the evidentiary material to which, in the interests of justice, public reference cannot be made.

    [14] Bakewell v McPherson; Clark v McPherson (1992) BC9200236 [14].

17. An order has been made in this court prohibiting publication of the evidentiary material on which the action is based. The defendant and his counsel were also excluded from the submissions made by the plaintiff counsel. In this case I also consider it to be necessary to avoid references to the content of the documents in this judgment.

18. That said, it is necessary to make some observation of the differences between the situation in Bakewell and this situation. In that case the plaintiffs were the directors of a Bank appointed by the government of the State of South Australia. That Bank enjoyed the benefit of an indemnity from the Government of South Australia.

19. The plaintiffs were an executive director and the non executive directors of the Bank. In 1990 the bank had collapsed, and there were massive capital deficiencies suffered by the Bank for many and varied reasons. The bank business was eventually split so that the ‘good’ assets of the bank, namely performing loans, could be quarantined and sold in a bank as a going concern. The non performing assets (loans) were similarly quarantined and were managed to an end position. The Bank collapse was the cause of enormous financial, social and political upheaval in South Australia. It was very different to the question of waste water emanating from a treatment plant at Sellicks Beach. I have carefully borne in mind the difference between the two things when considering the relevance of the principles developed in the Full Court judgement in Bakewell.

20. In Bakewell the plaintiffs alleged that they had been denied natural justice because they had never been accorded a reasonable opportunity to refute the tentative conclusions of the Auditor General. This case is different because the report has been finalised. There is no tentative aspect about it and none of the criticisms made of the Council – and the officers who may easily be identified as the persons who were involved in the relevant decision making process that led to the failure to respond and then the failure to report – are in any way preliminary. However the difference must be understood in the context of what are extraordinarily serious statements made by the manager about the conduct of the Council leading to an alleged failure that any reasonable reader would and could readily attribute to particular staff of the Council. I have formed this conclusion after reading the report which does not wholly focus upon the conduct of Council staff. Some portions of the report are unexceptional because they involve aspects of the Council’s operations unrelated to observations involving or potentially involving staff of the Council.

21. In Bakewell King CJ considered what was required of the Auditor General in the context of the investigation. His Honour said:[15]

    … In order to rule upon that submission, it is necessary to consider what the rules of procedural fairness or natural justice require in the circumstances of this investigation. In R v Commonwealth Conciliation and Arbitration Commission and Ors ex parte Angliss Group (1969) 122 CLR 546 at 552, at 553, in a passage which was reaffirmed in the joint judgment of Mason J, Wilson J and Dawson J in National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 320, the High Court said in a joint judgment:

    “But it must be borne in mind that these principles are not to be found in a fixed body of rules applicable inflexibly at all times and in all circumstances. Tucker LJ said in Russell v Duke of Norfolk [1949] 1 All ER 109, at 118: ‘The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.’ This passage was approved by the Privy Council in University of Ceylon v Fernando [1960] 1 WLR 223; [1960] 1 All ER 631, and was used by Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, at 504. There his Honour observed: ‘What the law requires in the discharge of a quasi-judicial function is judicial fairness … What is fair in a given situation depends upon the circumstances.’…”

    [15]  Bakewell v McPherson; Clark v McPherson (1992) BC9200236 [21].

22. King CJ dealt with an investigation of a very notorious event in South Australia by the Auditor General on appointment from the Governor; he operated under an act of Parliament with quite specific powers. Some of these powers allowed the Auditor General to compel the giving or production of evidence. Despite these findings, King CJ found that the enquiry was of a non judicial and non curial kind. It was necessary to look at the purpose of the enquiry. In Bakewell, there were real public concerns and public confidence was at stake. In the case at hand there were plainly public concerns about the relative safety of the public space that was irrigated using waste water.

23. There is insufficient before me here to indicate any possibility of a loss of public confidence. The application in this matter is indicative of the likelihood of the publication of this report. In light of the interest in the matter, it is very likely that the report would be published in whole or in part. The obligation of the manager was to conduct an internal review into the circumstances of damage and failure of City of Onkaparinga’s wastewater treatment facility and appropriateness of council’s legal response and remedial action.

24. It is difficult to understand how a person with no apparent legal training could assess the appropriateness of a Council’s legal response, or without any appropriate training could assess the appropriateness of any remedial action. A review into a ‘failure’ ultimately becomes self fulfilling but more important is the unlimited reference to ‘Council’ in any description. It purports to leave the report writer with very wide discretion which ranges from dealing with matters at the highest level of Council to examining the conduct of specific members of Council staff. One matter that arose in argument was whether such an approach was appropriate in the circumstances having regard to the terms of reference. I have significant doubts that it does but that has not been a matter fully argued before me and I will put it to one side.

25. The manager took the very broad view of the terms of reference. There is no evidence that he received any guidance on this or that he was informed that he was limited to undertaking an internal review that would be (or should be) assessed by more senior staff before it was finalised. It may be assumed that one of those senior staff may at least have had some inkling of the obligation of fairness owed to staff of the Council, the actions of whom (or the consequences thereof) were the subject of the managers report. The risks in the approach adopted by the Council are apparent enough. One of them is the potential of the manager to criticise Council staff generally or specifically. Either possibility is equally serious because of the limits upon the range and number of the Council staff who may be involved with these issues with the consequences that specific persons may be identifiable or about whom speculation may arise.

1. Any adverse conclusions formed by a person undertaking a task for which they have no specific training is a fraught process. Those conclusions will in the absence of a due regard for the principles of fairness be harmful both to the person generally and to their personal reputation. So much is self evident from the content of the report. Of greater concern in the absence of limits upon the review about any legal or operational matters upon which the reviewer may form a particular view, however erroneous. This is a most unsatisfactory situation as a point of commencement.

2. In Bakewell King CJ held that where Mr McPherson had formed tentative conclusions harmful to the reputation of the plaintiffs, the proper and reasonable course was to make those tentative conclusions known to the plaintiff, to invite written submissions on them in a reasonable time period so that comment may be made upon them. An opportunity should also be given to lead any evidence on an issue (especially, in this case, a legal issue).

3. King CJ concluded his views as follows:[16]

   No doubt the procedures outlined above will delay the presentation of the report so far as it concerns the plaintiffs, beyond the reporting date, namely 30^th September, stipulated in the terms of appointment as extended. I appreciate the considerations which have motivated the government to treat time as of importance, but those considerations cannot override the requirement of the law that the plaintiffs be accorded fair treatment. The statute does not exclude or qualify the rules of natural justice. It must therefore be taken as implicit in s25 that a fair opportunity to answer criticisms will be accorded to those whose reputations may be affected by a report. The obligation on the investigator to accord such an opportunity cannot be modified by the prescription of a timetable in the terms of appointment. Absent a further extension of the reporting date beyond 30^th September, the only course open to the defendant is to omit from his report criticisms of the plaintiffs and to report that the investigation is incomplete by reasons of lack of time.

   Many cases were cited to us as propounding principles of natural justice or illustrating their application in particular situations. Each case must depend upon its own facts and I do not find it necessary to discuss the cases further. I believe that the conclusions which I have reached are firmly based upon the authorities. The principles enunciated, and their application to the facts, in National Companies and Securities Commission v News Corporation and Ors (1984) 156 CLR 296 are particularly apposite to the present case.

   I have reached the conclusion that, even making full allowance for the plaintiffs’ knowledge of the Bank’s affairs and the advance information given in the investigators’ reports, the time allowed for written submissions on the draft chapters was inadequate in each case. Moreover I consider that the plaintiffs were quite reasonable in gathering from the defendant’s letters that he felt bound by the date for the making of his report, namely the 30^th September, and that he proposed in that report to deal with the matters contained in the draft chapters. They were also reasonable in supposing that there were other possible findings against them in chapters which had not been communicated to them at all. In those circumstances I think that the plaintiffs had a reasonable fear that procedural fairness would be denied to them due to the time constraints on the defendant. They were therefore justified in instituting these proceedings on the 24^th August. I think that they are entitled to appropriate relief.

   [16] Bakewell v McPherson; Clark v McPherson (1992) BC9200236 [27] – [28].

4. I have adopted and applied the general approach as articulated by King CJ in Bakewell. There are obvious differences in this case when compared to Bakewell. There are enough similarities to satisfy me that the Council employees must have been afforded at least the more rudimentary aspects of procedural fairness before the finalisation and delivery of the report in this matter. It does not matter that specific persons may not be mentioned by name. There is sufficient information before me to indicate that the application of the merest level of enquiry will identify at the least a range of persons who may be identified or identifiable as the relevant personnel in the Council who may have dealt with particular aspects of these issues. In my view, any ordinary member of society who has an interest in these matters may, by the application of an average amount of intelligence, be able to ascertain the names of the persons falling into that range.

5. I have used the expression may deliberately here. The time has long passed when a Court would ignore the existence and nature of the exchange of information in the modern form of electronic media. The transmission of any forms of information about a topic, persons or events now occurs unhindered by rules requiring accuracy, completeness, fairness or proper expression when such media is used. The users of such media, however they be described, are very often faceless individuals who for any number of reasons see fit to comment on, speculate about, pass personal judgement or prognosticate upon matters and things which pique their interest. They sometimes rely upon the cloak of anonymity to disguise the footprint of their own identity and, hence, their responsibility. The potential and actual damage wreaked by such persons is unmeasurable both in amount and longevity. In cases such as this the court must have these matters  at the forefront of its mind in its decision making.[17] Speculation will create two problems and begets two victims: the first those employees who were involved who have no opportunity to be heard; the second, those who had no connection to these matters in any way. The relevant level of unfairness applies to both categories of employees.

   [17] “We are drowning in information while starving for wisdom.” Edward Osborne Wilson: Consilience: The Unity of Knowledge (1998). A recent published paper opines that habitual internet commenting is strongly associated with hateful personality pathologies: see Erin E Buckels, Paul D Trapred and Delroy L Paulhus – “Trolls just want to have fun” Personality and Individual Differences (2014)

6. Focusing only upon those employees who were involved and about whom actions, statements or comments have been made by the investigator, no procedural fairness has been provided to them in any way. They received no proper advice about their rights when particular questions were put to them. No opportunity was given to them to seek advice on whether to answer the questions at all. They have not received any legal advice about the ramifications of a non legally trained person investigating legal issues such as the appropriateness of the Council’s legal response and everything to which this pertains. No draft of the investigator’s tentative conclusion has been provided; no time has been allowed for consideration to be given to the contents of the conclusions of the report; no advice has been sought or given about the employees’ position in light of the conclusions of the report and no response has been given to them. These failures are particularly stark.

   The issues for resolution

7. This appeal arises from section 40(1) of the FOI Act on a question of law.  I dealt with this topic in my decision in Minister for Education and Child Development v Chapman.[18]I will adopt the same approach in this matter.

   [18] [2013] SADC 130 [47], [50], [51].

8. I have already identified the need for me to be circumspect in the manner in which I refer to the content of the report documents.  The reasons for the approach are described by King CJ in Bakewell.  I will adopt the same approach as used by his Honour but it will still be necessary here to say something about the content of the document under challenge.  I will do so by reference to the features of which the appellant complains.

9. The Governance Report is accepted to fall within description of an exempt document for clause 9(1) of Schedule 1 of the FOI Act.  It was intended to be an internal review in the terms that I have set out.  The issue that provided the impetus for the Governance Report has now been superseded by other reports and actions.  The issue(s) have been addressed to the satisfaction of all relevant government agencies.  Continual monitoring of the operation of the Plant occurs to the satisfaction of the EPA and all of the other relevant stakeholders.

   Issue:  Opinions contained in the Governance Report

10. The Governance Report comprises 145 pages and reproduces part or all of 45 individual documents that exist separately.  The report makes assertions against employees or groups of employees, separately and in the broad that require a process of due diligence and procedural fairness to have been employed.  Such a process would have required individuals to have been informed of the tentative conclusions of the manager and to have been given the time and the opportunity to obtain advice and, subject to such advice, to respond. In some limited instances this would apply to the whole Council staff.  Because the manager was required to report upon the appropriateness of legal responses, opinions are expressed about what a non-legally trained person considers to be the relevant legal questions and issues. Opinions are then expressed about the conduct of unnamed people and then (as a consequence) of the Council as a whole. This process was inappropriate. It is a serious breach of the rules of natural justice because the persons affected did not know of the terms of the brief given to the manager and the rights ordinarily to be enjoyed by them in such circumstances. The document is required to be reviewed and redacted to reflect this failure which is an issue of law.

    Issue:  Legally Privileged Content of Governance Report

11. I am also satisfied that portions of the report contain material that attracts legal professional privilege.  That privilege belongs to the Council.  It is a matter for judgment about whether the Council has in any sense waived such privilege.

12. On one view it may be said that if the manager was asked to review the appropriateness of a Council’s legal response then it must be expected that this would include a review of the legal position taken by the Council.  In turn, this may require at least some comment upon the Council’s legal advice and how Council may have acted upon it. But this was a review by a person who is not legally trained.  It is unknown whether the reviewer understood the doctrine of legal professional privilege and on the papers it is not possible to finally assess whether the conduct of the Council is inconsistent with the maintenance of the privilege.

13. The Council submits that it wishes to maintain its privilege because of the peculiar circumstances of this case. All that I am presently able to do is to indicate that in the absence of waiver, such a claim is maintainable.  Any reference within the report that directly or indirectly discloses the privileged material may not be disclosed.  This is not the final position on this topic of legal professional privilege.  There will potentially be other opportunities in the future when the issue of waiver of privilege can be raised.  I am currently dealing with a situation where identified aspects of privilege are properly claimed.  Whatever doubts I may have about the capacity of the Council to maintain such claims in light of the instructions to the manager cannot be resolved here.

    Issue:  Capacity of Council CEO to bind the Council

14. In order to address the next issue raised by the Council it is necessary to repeat the chronology of this application.  On 12 April 2013 the Council refused access to Mr Houlahan at the internal review stage.  On 18 April 2013 Mr Houlahan sought to externally review the decision.  On 14 October 2013 the Deputy issued a provisional determination which was responded to by the Council by letter dated 1 November 2013.  There was then a meeting between the Council CEO and the Ombudsman, Mr Bingham, not the Deputy who was the decision maker.  Although the status of this meeting is not clear, on the papers before me and on the whole of the evidence there is no indication or suggestion that the CEO was authorised to commit the Council to any position that was different to the position that had been resolved by the Council about these matters.  It was not for the Council CEO to unilaterally decide to change the Council’s position.  So much would have and should have been apparent to anyone dealing with the CEO on these issues.

15. The CEO had no actual, implied or ostensible authority in these circumstances.  He had no authority to purport to bind the Council to any version of the facts or events other than its formal and stated position.  The evidence of the CEO Mr Dowd is that he did not purport to do so.  The Ombudsman had already identified a reason preventing him from deciding the matter. He was already dealing with the issues that are the subject of this application following the Ombudsman’s report. It was that situation which led him to form the view that this issue should be dealt with by the Deputy Ombudsman.

16. The Deputy who prepared the determination took the conversation (at which she was not present and about which she could only have received a hearsay account) into account in her final determination (at paragraphs 23 and 67).  She did not verify the content of the alleged conversation with the CEO.  I am satisfied that if she had, she would have been made clearly aware of a factual dispute raised by the CEO who does not accept the Ombudsman’s characterisation of or content of that conversation.  Two things follow: the inclusion of the material in the final determination, without more, was not appropriate as a matter of course; and, the failure to test the proposition about the conversation with Mr Dowd or anyone with proper authority from the Council was a substantial error on her part. I am also satisfied that the failure to take this step was a breach of the obligation to provide procedural fairness to the Council.

    Issue: Confidentiality

17. The 1972 version of the Ombudsman Act is applicable to the matter.[19] The first determination of the Ombudsman was that, different from documents 2 and 3, document 1, the Governance Report, was not specifically prepared by the agency (the Council) to respond to an Ombudsman investigation. That much may easily be determined by a reading of the remit of the Council manager to prepare the report. Contrary to that position, the Council contends through the CEO Mr Dowd that he directed the document to be written on the understanding that it was to be provided to the Ombudsman. He produced the report at the request of the Ombudsman because he felt obligated to do so. The issue here is the application of section 22 of the Ombudsman Act that reads as follows:

    [19] Ombudsman Act 1972 (SA).

    22 – Secrecy

    (1)    Information obtained by or on behalf of the Ombudsman in the course of or for the purpose of an investigation under this Act must not be disclosed except-

    (a)for the purposes of the investigation and of any report or recommendation to be made under this Act; or

    (b)for the purposes of any proceedings under the Royal Commissions Act 1917 or under this Act.

    (2)    A person shall not disclose any information referred to in subsection (1) contrary to the provisions of that subsection.

18. Mr Dowd said that he assured the Council staff that they should be completely forthcoming to the investigator and that they had nothing to worry about.  The assurance was given to them that any report prepared would be kept confidential.  That has not occurred.  There are many reasons for the difficulties faced by Council because of the assurances given to staff.  The genesis is the terms of the remit given to the manager; others include assurances given to staff and the treatment of staff in these circumstances.  This includes the possibility that a person who is not legally trained may express a legal opinion about matters that very obviously may include the actions or consequences of the actions of staff.

19. Mr Dowd also says in his evidence that despite his earlier understanding, the Ombudsman decided to rely upon the report rather than undertake a separate investigation.  The Council knew of this decision but appears not to have informed staff.  The Council did not resolve to clarify the terms of the remit to the manager.  It is unclear whether the manager was aware that his report was to be provided to the Ombudsman.  The Council staff were not told any of these things – particularly that the Ombudsman had become involved after he received information from a whistle blower.  In my view it was essential that the manager or someone from the Council inform the staff of what had transpired and give them any assistance they required.  Nothing was done and this creates a real unfairness for the staff who gave assistance whilst acting on the assumption of the confidentiality of the Governance Report prepared by the manager.

20. The question for me is whether the report that is obtained may be used other than for the purpose of the investigation by the Ombudsman (which occurred) and any report or recommendation by him. The report no doubt contains information obtained by or on behalf of the Ombudsman for the purpose of an investigation under the Act. An ordinary reading of section 22(1)(a) of the Ombudsman Act 1972 is that it provides an exception to the general rule which prohibits disclosing information disclosed to the Ombudsman where the information was disclosed to the Ombudsman for the purpose of the investigation and creating any reports under the Act.

21. The chronology set out above shows that the first involvement of the Ombudsman concerned the whistle blower information.  As a result, the Ombudsman decided to embark upon an investigation under the Act.  The Council had by that time already decided to embark upon the internal investigation.  This fact was made known to the Ombudsman.  The Ombudsman decided that in light of that information it was not necessary to separately investigate a matter that was already being investigated by the Council and in respect of which a report was to be prepared. The report was not obtained by or on behalf of the Ombudsman in the course of or for the purpose of an investigation. The report was prepared for the Council’s own internal purposes. The Ombudsman was able to take advantage of its existence. There is no evidence that the Ombudsman had any input to the terms of reference of the investigation or the Report. And the whistle blower investigation conducted by the Ombudsman received the Report as part of its information gathering process but it was voluntarily handed to the Ombudsman by the Council.

22. Here the Deputy was conducting a review of a decision made under the FOI Act. This review and the decision under it are not for the purpose of an investigation under the Act but for the purpose of an external review under Part 5 Division 1 of the FOI Act. The provisions referred to in section 22 of the Ombudsman Act refers to an investigation. That process is identified in Part 3 of the Ombudsman Act commencing at section 13 et seq. This matter does not fall within the scope of that part.

    The reference to external documents

23. I am satisfied that the Governance Report as delivered contains references to a number of documents and reproduces, in whole or in part, 45 documents. Many of these documents were produced in circumstances where the authors plainly enough did not anticipate their publication but that is not necessarily determinative.  I am satisfied that a number of these documents make references to people inside and outside of the Council having expressed quite particular points of view, including about matters and conduct that were not within the authors’ area of expertise, qualification or knowledge.

1. The Deputy was required to consider each of these constituent documents and their contents separately and make a determination about each of them.[20]  This proposition is so intuitively correct it requires little authority.  This also logically means that the public interest test is required to be applied to each of the documents as they appear in the report.  Thus these documents would be treated as separate documents in their own right and be assessed accordingly.  That has not occurred in this case.  I agree with the submissions of the Council that: when two or more documents are ‘merged’ into one document any test to determine exclusion must be applied in respect of each document (as if not merged);[21] and, when the different parts of a document are covered by different legal tests each of the tests to determine exclusion must be applied to each part of the document as if they were separate documents,[22] and only the relevant part of the document should then be released.[23]

   [20] Re Anderson and the Australian Federal Police (1996) 11 ALD 356; Re Aldred and Department of Foreign Affairs and Trade (1990) 20 ALD 264; Re Hunson and Ors [1993] QI Commission 4; Fisse v Secretary, Department of Treasury and Anor (2008) 129 ALD 1.

   [21] Re Hunson and Ors [1993] QI Commission 4.

   [22] Re Anderson and the Australian Federal Police (1996) 11 ALD 356.

   [23] Fisse v Secretary, Department of Treasury and Anor (2008) 129 ALD 1.

2. Despite the attitude of the Council, the Deputy considered the document as a whole, she did not consider the 45 documents that comprised a large proportion of the report separately under the primary exemption provision of Part 3 Division 2 of the Act or the secondary exemption provision under Schedule 1 of the Act.

   Unnecessary disclosure of information

3. In the report the contents of a number of documents from service providers to the Council have been disclosed, in whole or in part, which do not obviously bear upon the matter for consideration.  Ordinarily they would be dealt with by a brief description of their effect.  Nothing more is necessary.  There is no public interest in an external reader having available these types of commercially sensitive material relating to commercial services provided to the Council by external suppliers.  The availability of this material could cause commercial prejudice to those external suppliers.

4. During submissions, the Council spent considerable time expanding upon the fact that some of the documents in the Governance Report (a portion of the 45 documents) were also delivered to the Ombudsman in the course of the investigation.  This is to be expected.  A freedom of information request had been made to the EPA by the same applicant, including for the ‘three documents’.  It has been refused.  It is submitted that there is a real prospect of an inconsistent decision by the Deputy Ombudsman in the event that there is an application for disclosure of material from the Ombudsman which is refused on appeal process.  Although this is a possibility, I think that the effluxion of time means that this is not an issue that I need to take into account.

5. I am also satisfied that the report makes statements or allegations concerning the management of the Plant that cast innuendo upon the management of the Plant. The innuendo is of a critical nature and made in circumstances where the persons against whom the innuendo is cast have had no opportunity to respond.

6. Within the report conclusions have been drawn by the manager which are expressed in language which can often be described as emotive.  It is critical language of an assertive type and upon my review of the materials, does not appear to have any basis in fact.  The language is misleadingly emotive because it is not sufficiently measured bearing in mind the disadvantage suffered by the persons about whom comment is made. Justifiable criticisms are very different from a number of the portions of the report that are expressed in language that is regrettable because of its accusatory style.

7. I am satisfied that by the use of innuendo, emotive language, unbased assertions, the appearance of a predisposition to judgement and the absence of any legal basis, the author of the document attempts to apportion liability (as he perceives it) for the problems with the Plant to all Council staff regardless of their involvement.  In my opinion, this is both unsupportable and inappropriate.

8. As the author of the report, the manager is critical of the level of cooperation he received from staff, however he does not justify the criticism by reference to facts.  An inference arises from this criticism that there was a reluctance amongst the staff to assist in the production of the Governance Report.  At one level this may well have been the case if the content of the report reflects the manager’s treatment of the staff in his dealing with them but that is no more than speculation. The staff were asked to provide every cooperation to the manager and to understand that matters communicated in confidence would be kept confidential.  Although such information would always be required to be disclosed as part of an employee’s fiduciary obligations, no regard appears to have been given to the employees own positions and the methods that could be adopted by the author to provide the report in a proper, measured style.

9. The document purports to make a comment in relation to matters of law that are beyond the qualification of the author and are not based in fact.  The document contains references to those matters which may otherwise be described as attracting legal professional privilege. None of the employees who are directly or indirectly referred to in the Governance Report have been given any opportunity to understand its content, to comprehend its importance or to make any responses appropriate to its content. In my opinion this is a significant breach of the fundamental rights of those employees.

   Variation in the application of Mr Houlahan

10. I have previously mentioned that Mr Houlahan did not eventually seek the names of staff working at the Council and was content for redactions to be made of information that may identify the particular staff member referred to in the report.  A number of contentions were made by the appellant concerning the privacy of the names of particular persons and personal information, in this category, is not subject to the same public interest regime as other exemptions in the FOI Act.[24]In South Australia, information concerning a person’s employment is personal information that is exempt under clause 6 of Schedule 1 of the FOI Act.[25]

    [24] Perton v Department of Manufacturing and Industry Development 5 VAR 149; Commissioner of Police v District Court of New South Wales & Anor 31 NSWLR 606 [621].

    [25] Freedom of Information Act 1991 (SA) s 4; City of Unley v Warnecke [2004] SADC 48.

11. The question for my consideration is whether redaction is a sufficient protection having regard to the relevant settled principles.  There are a number of authorities pertinent to this consideration and the principles appear to be well settled.[26]  The position is that, if it be the case that the names of the members of a class of employees (whose names had been redacted from a document that had been published) could be filled quite readily by a person with the ordinary knowledge held by sections of the public about the existence of the persons in the class, then this is a proper consideration for the Deputy to have taken into account at the time of giving consideration to the application.  If, by the application of general knowledge, it would be possible to identify the person involved in the particular activities in the Governance Report, even though references to them were redacted, then that is a matter to be taken into account.

    [26] Re Mann v Commissioner of Taxation (1987) 12 LV 738.

12. The decision in Re Mann was concerned with section 16(2) of the Income Tax Assessment Act 1936 (Cth).[27]  The case before me is different, however, the relevant materials disclose that the subject matter of the report involved a discernible number of the Council staff operating within particular areas of the Council.  It is apparent to me that despite the removal of the names or descriptions, the identities of Council staff could quite easily be ascertained by persons possessing reasonable knowledge of the functions of the Council.  This application shows that there is a sufficient interest in this matter within a general section of the public in this topic. 

    [27] Re Mann v Commissioner of Taxation (1987) 12 LV 738.

13. It was necessary to deal with the matter at the level of the EPA under the mandatory reporting requirements.  Members of the public were affected by the operation of the Plant.  That operation and the overflow issues were matters of real public concern.  The sections of the public that has a distinct interest in this matter, although not large, is discernible and also knowledgeable.  There is a limited number of staff involved and I am satisfied that they are readily identifiable from the information available.  The redaction of names or descriptions as are currently contemplated would have little effect in this matter.

    THE APPEAL

    The right of appeal: a question of law

14. Section 40(1) and 40(2) of the FOI Act provide as follows:

    40—Appeal to District Court

          (1)         An agency that is aggrieved by a determination made on a review under Division 1 may, with the permission of the District Court, appeal against the determination to the District Court on a question of law.

    (2)A person (other than an agency)—

              (a)         who is aggrieved by a determination of an agency following an internal review; or

              (b)         who is aggrieved by a determination that is not subject to internal review; or

    (c) who is aggrieved by a determination made on a review under Division 1,

    may appeal against the determination to the District Court.

15. Ordinarily, when considering questions of law there are three matters to be emphasised as follows:

16. Whether the established facts bring a particular case within a statutory enactment is a question of law;[28]

    [28] Hays v Federal Commissioner of Taxation (1956) 96 CLR 47[51] –[52].

17. A review of a question of law provides for a review of the legality of a decision but not a review of its merits;[29]

    [29] B and L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481.

18. The criteria for when the application of facts to a term used in a statute is a question of law.[30]

    [30] Harrow Trust v Adelaide Hebrew Congregation Inc (2002) 221 LSJS 449.

19. In this action it was necessary for the appellant to point to an error or errors of law made by the Ombudsman.[31] Once the error of law is established, leave to appeal must be granted and it will then be possible to consider the document afresh including any final orders made in relation to the document.[32].

    [31] City of Unley v Warnecke [2004] SADC 48.

    [32] City of Unley v Warnecke [2004] SADC 48 [19] – [26].

    Grounds of Appeal

20. The grounds of appeal are as follows:

    1.   The Deputy Ombudsman failed to have regard to the fact that redacting Document 1, so as to remove the identity and position title, may not and would not prevent Council staff from being  identified:

    1.1The Deputy Ombudsman erred in finding that by redacting Document 1, so as to remove the identity and position title, that there would be no information in the document that identifies any individual, so that the document did not contain any matter that is exempt under s6(1) or (2) of Schedule 1 of the Freedom of Information Act 1991 [24]. The Deputy Ombudsman failed to take into account that a member of the public could identify those individuals through a number of other publically available records.

    1.2Accordingly, the Deputy Ombudsman failed to have regard to:

    1.2.1the Council’s structure, and work arrangements;

    1.2.2the Council’s delegations; and,

    1.2.3the Council’s policy;

    all of which are outlined in public documents and could, in combination with Document 1, allow for identification of Council staff.

    2.   The Deputy Ombudsman erred in failing to find that Document 1 was an exempt document. The Deputy Ombudsman’s (with respect, incorrect) view that staff identities would be kept confidential, if the report was redacted, affected the consideration of the following sections of the Freedom of Information Act 1991:

    2.1.16(1) of Schedule 1 of the Freedom of Information Act 1991 [23];

    2.1.26(2) of Schedule 1 of the Freedom of Information Act 1991 [23];

    2.1.313(b) of Schedule 1 of the Freedom of Information Act 1991 [53];

    2.1.416(1) of Schedule 1 of the Freedom of Information Act 1991 [58].

    3.   The Deputy Ombudsman erred, by having regard to an alleged discussion with the CEO of the Council, referred to at [23, 24, 53, 58] of the decision because:

    3.1The conversation (‘February Meeting’) did not take place in the terms alleged;

    3.2The CEO did not have the authority, in any event, to bind the Council;

    3.3The Deputy Ombudsman found that the CEO agreed with the release of Document 1 [23], whereas the Council as a corporate entity did not agree to the release of Document 1 [6].

    3.4The Deputy Ombudsman accordingly failed to provide procedural fairness to the Council. The Council was not put on notice that the February meeting would be a factor considered by the Deputy Ombudsman. This was particularly so given the formal submissions provided by the Council [66]. The Council was accordingly not given the opportunity to provide material regarding the February Meeting to the Deputy Ombudsman.

    3.5The Deputy Ombudsman accordingly failed to advise herself of, or failed to properly construe, the Council’s policies, procedures, delegations and the Local Government Act 1999 (and where relevant the Local Government Act 1934).

    4. The Deputy Ombudsman failed to determine whether parts of Document 1 are exempt under 7(1)(c)(ii)(A) of Schedule 1 of the Freedom of Information Act 1991:

    4.1 The Deputy Ombudsman considered that parts of Document 1, are subject to the exemption contained in 7(1)(c)(i) of Schedule 1 of the Freedom of Information Act 1991.

    4.2   The Deputy Ombudsman was required to determine whether:

    4.2.1The release will have an adverse affect on the agency; or

    4.2.2The release would prejudice the future supply to the agency.

    4.3 The Council advised the Deputy Ombudsman that release of the document would have an adverse affect on the Council [27]. The Council advised Deputy Ombudsman that release of the document would have prejudice the future supply of services to the Council [28].

    4.4 The Deputy Ombudsman made a finding in respect of 5.2.1 [36]. However, the Deputy Ombudsman failed to make any findings in respect of 5.2.2 [36]. Accordingly, the Deputy Ombudsman failed to determine this matter.

    5. The Deputy Ombudsman erred in her construction of 7(1)(c)(ii)(B) of Schedule 1 of the Freedom of Information Act 1991. The Deputy Ombudsman compared the “public interest” against the release of all of Document 1, not the specific parts of Document 1 relating to 7(1)(c) of Schedule 1 of the Freedom of Information Act 1991.

    6. The Deputy Ombudsman failed to provide procedural fairness in relation to 7 of Schedule 1 of the Freedom of Information Act 1991 in that:

    6.1 The Deputy Ombudsman requested an indication from the interested parties referred to in paragraph [29] of the Decision (‘the contracting parties’) as to whether the document should be exempt under 7 of Schedule 1 of the Freedom of Information Act 1991 [29 – 35].

    6.2 Three of the four contracting parties indicated that the relevant parts of Document 1 should be exempt under 7 of Schedule 1 of the Freedom of Information Act. No further information, from the contracting parties or the Council, was requested by the Deputy Ombudsman.

    6.3 The Deputy Ombudsman then proceeded to determine that Document 1 was not exempt under 7 of Schedule 1 of the Freedom of Information Act 1991 [36].

    7. The Deputy Ombudsman erred in her application of 13(1)(a) of Schedule 1 of the Freedom of Information Act 1991 in finding at [51] that the information in Document 1 was not imparted or received ‘in confidence’. The Deputy Ombudsman should have found that the information was imparted or received in confidence having regard to the nature of the information, the circumstances in which it was imparted or received, including the fact it was stamped ‘in confidence’.

    8.   The Deputy Ombudsman erred in her application of the law of legal professional privilege, by not redacting Document 1, which is subject to “legal professional privilege”.

    9.   The Deputy Ombudsman erred in her application of the “public interest” test under the Freedom of Information Act 1991 by:

    9.1   Considering that the Council could remedy the reputation damage, or misconstruction of Document 1, by providing additional documents [68] without taking into account that the Council could not lawfully release a number of relevant additional documents as they are subject to an Ombudsman investigation [14-16].

    9.2 Considering that the release of Document 1 would facilitate public debate [69].

    9.3 Failing to consider the impact of such release, in relation to the operation of the Council, and the future use, disposition or sale of the relevant facility [70].

    9.4   Failing to consider that notwithstanding the redaction of names in Document 1 that it would be easy for a reader to identify specific Council staff members.

    10. The Deputy Ombudsman erred in failing to consider whether other exemptions afforded by Schedule 1 of the Freedom of Information Act 1991 apart from those claimed by the Council were applicable to Document 1, as required by the Freedom of Information Act 1991.

21. In relation to grounds 1, 2, 6, 7 and 8 of the notice of appeal the appellant contends that the errors address the construction of legislation.[33]   The appellant further contends that ground 3 relates to procedural fairness issues which constitute an error of law, ground 4 relates to failure of the Ombudsman to determine a test to completion which is an error of law.

    [33] Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606; Minister for Education and Child Development v Chapman [2013] SADC 130 [51].

22. Ground 5 relates to the legal definition of document under section 4 FOI Act and is therefore an issue of law. Ground 9 relates to jurisdictional error in the course of the application of the public interest test under the legislation which is similar to grounds 1, 2 6, 7 and 8. Ground 10 relates to notification requirements. Separate from grounds 1-10, ground 11 relates to the application of section 22 of the Ombudsman Act.

    DECISION ON APPEAL AND REASONS

23. For the reasons which I set out below, I am of the opinion that grounds 1, 2, 3, 5 and 9 of the Notice of Appeal are made out. I would dismiss grounds 4, 7, 8 and 11 of the grounds of appeal. I consider that it is not necessary for me to make a decision on ground 10.

24. In relation to ground 6 of the Notice of Appeal, I am satisfied that the criticisms there set out are made good.  However, I am unable to determine whether the failure of the Ombudsman constitutes an error of law based upon the materials before me.

    Ground 1 and 2

25. In relation to grounds 1 and 2, I am satisfied that, as a matter of law, the Deputy has failed to give consideration to questions of procedural fairness in addressing the redaction of identities of persons from the relevant document. Although the Deputy was correct in her decision that a redacted document could be forthcoming, the redactions as suggested by the Deputy do not sufficiently remove the identity and position descriptions of relevant individuals and I am satisfied that an ordinary member of the public could identify those individuals. I am satisfied that Council staff could be identified notwithstanding the redactions. By allowing the failure to sufficiently redact the report, the Deputy has erred in law in respect of the application of clause 9(1) of Schedule 1 of the FOI Act. The report is an internally produced document prepared initially by the Council to investigate internal management of the Plant. It contains a record of the opinions of staff members,[34] as well as a record of consultation that occurred between Council staff and the investigating officer.[35] This means that there would be a disclosure of the input provided by Council staff members in addition to the identification and critique of those same staff members through publication. The distress this identification could foreseeably cause staff members, as well as the difficulties it might cause future investigating processes through discouragement of staff participation, would be, on balance, contrary to the public interest.[36] For the same reasons I am satisfied that ground 2 of the appeal notice has been made out. The conclusion of the Deputy that staff identities could be kept confidential is erroneous and is an error of law. It is not in the public interest that these identities be revealed or that any opportunity be given for such persons to be identified by the application of other information that is freely available.

    [34] Freedom of Information Act, clause 9(1)(i).

    [35] Freedom of Information Act, clause 9(1)(ii).

    [36] Freedom of Information Act, clause 9(1)(b).

    Ground 3

1. In relation to ground 3, I am satisfied that, as a matter of law, the CEO did not have authority in any discussion with the Ombudsman to bind the Council or to depart from the Council’s stated position which was known to the Ombudsman.  That stated position was that the Council objected to the release of the document.  I am satisfied that the Council did not resolve to agree to the release of the report.  The error of law occurs in the decision of the Deputy to treat the CEO as acting as the agent of the Council in this circumstance.  There are three requirements of an agency relationship: the consent of both principal and agent to the agency arrangement; that authority was given to the agent to act on behalf of the principal; and the principal’s control over the actions of its agent.[37]  In this instance the Council did not agree to allow the CEO to act as its agent, the CEO was not given authority by the Council to alter its stated position and the Council did not have control over the CEO in that his actions were directly against the Council’s wishes.  The agency relationship is therefore not made out, and the Deputy erred in her decision that the CEO was acting as an agent to the Council in agreeing to release the report.I am therefore satisfied that the Deputy failed to have regard to the absence of authority of the CEO to bind the Council in that respect. This failure is an error of law.

   [37] Dal Pont, Law of Agency (2001) Butterworths, paragraph 4.3.

2. In this regard the error of the Deputy was to have relied upon a hearsay account of a statement that purported to indicate a particular point of view of Council which was at odds with the previous position of the Council. The Deputy should have been alert to the changed position. The Deputy took those matters into account but it is not possible to measure the effect of that matter upon the decision of the Deputy. The taking of those matters into account was an error of law. It will be necessary to later address the proper orders to be made in light of this finding.

   Grounds 5 and 9

3. In relation to grounds 5 and 9, I am satisfied that in the application of the public interest under the FOI Act, the Deputy erred in law, in failing to consider the impact of that release upon the operations of Council and that the Council could remedy any reputational damage or misconstruction of the report by providing additional documents and information in circumstances where it would be quite impossible for the Council ever to know what reputational damage or misconstruction would take place as a result of the release of the report.

4. The error of law here also occurs under clause 13(1) of Schedule 1 of the FOI act. The report contains information which was obtained in confidence from Council staff as part of an internal investigation.[38] The publication of this material would reasonably be expected to prejudice the future assistance by staff in any Council investigations, as staff may be wary of being publicly critiqued.[39] The possible prevention of engagement in future investigations, as well as the direct negative effect on current Council staff would, on balance, be contrary to the public general interest.[40]

   [38] Freedom of Information Act, clause 13(1)(b).

   [39] Freedom of Information Act, clause 13(1)(b)(i).

   [40] Freedom of Information Act, clause 13(1)(b)(ii).

   Ground 7 – Redact the correspondence

5. In this judgment I have rejected ground number 7 of the Notice of Appeal of the Council. I have formed the view that although an implied obligation of confidence attaches to the correspondence, the publication of that material would not be contrary to the public interest. The matters that I have considered to be relevant here are: the implied obligation of confidence, the public nature of the role of the service providers performed for or in conjunction with the Council; the genesis of the issues associated with the operation of the treatment plant; the involvement of service providers before, during and after the discernment of the issues involving the plant; the effect of the plant operations upon issues of public safety; the need and right for the public to be fully informed about the issues concerning the plant because they are connected to the issue of public safety. In my view a significant matter here is the need for the public to be informed about matters of public health. An example is that every parent would wish to protect a child from contact with potentially harmful water borne bacteria. This hardly needs to be stated, it is so obvious. I have taken all of those matters into account in each decision made by me to reject any of the ground of appeal by the Council. I have not discussed those considerations separately in respect of each ground.

6. I have also indicated in this judgment that some of this material contains references to facts or circumstances that identify particular involvement in Council, or that particular individuals are named. This information in and the content of such correspondence tending to identify Council employees or any direct identification of such employees must also be redacted in any version of the report provided to Mr Houlahan pursuant to these reasons.

7. It will therefore be necessary for consideration to be given to each of the documents separately as well as together in order to ensure that the spirit and intention as well as the precise terms of my decision have been carried into effect. In the orders made by me at the end of this judgment I have given liberty to apply to ensure that this process occurs as efficiently and quickly as possible.

   Decision

8. Later in these reasons I deal with the issue of redaction. The forgoing reasons indicate that I am satisfied that the Deputy has made errors of law in the consideration of this application.  Those errors of law provide sufficient and cogent reasons to interfere with the decision of the Deputy but only to the extent as hereafter set out.

9. I accept the finding of the Deputy that it is appropriate to allow a redacted report to be published. I differ from the decision of the Deputy to the extent of the redaction process.  Although I have made findings that some errors of law have been made, I am not satisfied that those errors are sufficiently cogent to cause me to completely interfere with the decision of the Ombudsman.  There is a significant public interest aspect in this matter and in my view it would not be appropriate to prevent access to a properly redacted report.  This is despite the fact that the failures of the Deputy may properly be described as errors of law.

10. I am not satisfied that the errors of law are sufficient for me to form a conclusion that the decision of the Deputy was so irrational or unreasonable that it fell outside of the range of conclusions that were reasonably open to her. In the ordinary course I would remit the matter to the Deputy for her further consideration. In light of my decision, I do not consider that this is the appropriate way to proceed. I consider that I am in no different position to the Deputy and that it is unnecessary to remit the matter to the Deputy for a further decision according to law. There would be no advantage to the parties in so doing and remitting the matter to the Deputy would only delay this matter unnecessarily.

    Orders

11. At the hearing before the Court, the appellant, through its counsel, indicated that it would provide a redacted copy of the report.  The Deputy had previously identified that she would be content for a redacted copy to be provided to the respondent. I have reviewed that proposed form. It does not properly protect the identities of the relevant Council employees.

12. I am satisfied that a process of redaction could take place that addresses the issues upon which I have made findings of errors of law by the Deputy. The Council has provided to me a proposed redacted copy of the report.  In light of my comments, it is necessary for the Council to be given a further opportunity to consider the redacted report that has already been provided to me.

13. I allow the appeal of the appellant because I have formed the view that there are cogent reasons to depart from the decision of the Deputy. This is the case even though I am of the view that the Deputy was correct in her decision to allow a redacted copy of the report to be provided. I order that the appellant, within 14 days of publication of this judgement, bring into the Court any further redacted copy of the report disclosing any change in such document in a manner that is distinguishable from the redacted copy already provided to the Court by the Council.  I will receive that suggested redacted copy in confidence.  I will then review that redacted copy. 

14. The formal orders therefore are:

15. Leave to appeal is granted and the appeal is allowed;

16. Decision of the Deputy made on 19 February 2014 set aside;

17. Within 14 days of the date hereof the appellant is to bring into the Court, on a confidential basis, a proposed redacted copy of the report the subject of this appeal;

18. Liberty to apply generally.

19. I will hear the parties on the question of costs.