Day v Collector of Customs
[1995] FCA 333
•17 MAY 1995
CATCHWORDS
FREEDOM OF INFORMATION - review of decision of Administrative Appeals Tribunal to exempt from production a number of documents in whole or part - obligation of Tribunal to specifically consider each document or category of documents - obligation to explain categorisation or globalisation of documents - need to consider s. 22 expurgation for each document - Tribunal's discretion to provide temporary access to applicant's legal advisers upon undertakings not to disclose contents
LAWYERS - access to documents claimed to be exempt from production upon undertakings as to confidentiality
Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 37, 39
Freedom of Information Act 1982 (Cth) ss 11, 15, 22, 43, 45, 61, 63, 64
The News Corporation Ltd & Ors v National Companies & Securities Commission [1984] 5 FCR 88
Re Witheford and Department of Foreign Affairs [1983] 5 ALD 534
Re Arnold Bloch, Leibler & Co and Commissioner of Taxation [1984] 6 ALD 62
Re Carver and Department of Prime Minister and Cabinet [1987] 12 ALD 447
Re Kim Yee Chan [1985] 8 ALN N48
GRAEME NOEL DAY v COLLECTOR OF CUSTOMS
No. G290 of 1994
EINFELD J
SYDNEY
17 MAY 1995
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. G 290 of 1994
GENERAL DIVISION )
Between:GRAEME NOEL DAY
Applicant
And:COLLECTOR OF CUSTOMS
Respondent
MINUTE OF ORDERS
The Court orders that:
the application be allowed
the decision of the Administrative Appeals Tribunal of 22 April 1994 be set aside
the matter be remitted to the Tribunal to be reheard in accordance with these reasons for judgment
the respondent pay the applicant's costs
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
EINFELD J
SYDNEY
17 MAY 1995
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. G 290 of 1994
GENERAL DIVISION )
Between:GRAEME NOEL DAY
Applicant
And:COLLECTOR OF CUSTOMS
Respondent
REASONS FOR JUDGMENT
EINFELD J SYDNEY 17 MAY 1995
The applicant applies for review of a decision of the Administrative Appeals Tribunal (the Tribunal) given on 22 April 1994 under section 44 of the Tribunal's Act (the AAT Act). This decision affirmed the refusal of the respondent to grant the applicant access under the Freedom of Information Act 1982 (Cth) (FOI Act) to material given to the respondent by Daesung Electric Wire Co Ltd (Daesung) in relation to an investigation into allegations of breaches of anti-dumping laws.
The factual background
On 29 November 1991 the respondent issued what is referred to as a "normal value report" (the 1991 report) entitled:
ALLEGED DUMPING OF LOW VOLTAGE XLPE AERIAL BUNDLED CABLE FROM
THE REPUBLIC OF KOREA
DAESUNG ELECTRIC WIRE CO. LTD
On 19 February 1993 the applicant requested access to this report and associated papers under section 15 of the FOI Act. On 26 March 1993 the applicant made a similar request for access to the papers "relating to the determination of 1993 normal values for the Republic of Korea in respect of LV XLPE ABC" (AB 32). The 1993 determination to which this report refers (the 1993 report) was released on 29 April 1993 under the heading:
REVIEW OF NORMAL VALUE - LOW VOLTAGE, AERIAL, BUNDLED, CROSS LINKED POLYETHYLENE CABLE, 0.6/1 kV (XLPE) FROM KOREA - DAESUNG CABLE CO LTD
The respondent replied to the applicant's request in respect of the 1993 report (AB 33) by providing most of the papers contained in the relevant folio and claiming that the material not produced was "exempt" under section 45(1) of the FOI Act. This section provides:
A document is an exempt document if its disclosure under this Act would found an action, by a person other than the Commonwealth, for breach of confidence.
I have not been supplied with the respondent's initial reply to the applicant's request for the 1991 report, but evidently it received a similar response. Accordingly, along with the other documents provided in each case, the two reports were provided but with many deletions said to be necessary to put the reports outside section 45(1). It was said by the respondent that further disclosure would have founded an action by Daesung for breach of confidence.
The applicant made a request for internal review of the original decisions in respect of both reports (AB 22), and these reviews were made on 4 June and 2 July 1993 respectively (AB 11, 17). In both cases the result generally was that further access to the documents was denied, except that in respect of the 1993 report some extra documents were made available with deletions of allegedly exempt material. In July 1993 application was made to the Tribunal in respect of these two decisions of the reviewing officers. The two matters were heard together on 5 April 1994, and the determination of the Tribunal affirming the decisions of the reviewing officers is the subject of the present application to this Court which was filed on 20 May 1994.
The FOI Act
Section 11 of the FOI Act gives every person a right of access to, inter alia, a document of a government agency other than an exempt document. Amongst the sections dealing with exempt documents, two are relevant for the purposes of this application, section 45(1) extracted above, and section 43(1) which provides:
A document is an exempt document if its disclosure under this Act would disclose:
(a)trade secrets;
(b)any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or
(c)information ... concerning a person in respect of his business or professional affairs or concerning the business, commercial or financial
affairs of an organisation or undertaking, being information:
(i)the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or
(ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.
Section 22(1) mandates that partial copies of documents are to be provided in lieu of whole documents in certain cases:
Where:
(a)an agency or Minister decides:
(i)not to grant a request for access to a document on the ground that it is an exempt document; ...
... and
(b)it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i)would not be an exempt document; and
...
(c)it is reasonably practicable for the agency or Minister ... to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
The decision of the Tribunal
In its reasons for decision the Tribunal briefly stated the background of the matter, and quoted from the evidence of Mr Graham Cruttenden, a Customs Officer, which explained and supported the decision to restrict access to the documents. The decision also refers briefly to the reasons given by the review officers. The Tribunal then stated (para 7):
In the opinion of the Tribunal, it is not necessary to rule on each and every specific item to which access has been denied. An application of general principles should be enough to determine what material, if any, should be released to the Applicant.
The Tribunal then made a brief survey of the relevant sections and case law, and made a finding based on the evidence that the information provided by Daesung was intended to be regarded as confidential. The Tribunal continued (para 14):
The Tribunal has had regard to the documents sought. To the Tribunal's mind the information is such that the claim for confidentiality cannot be said to be irrational, absurd or ridiculous. From the material before the Tribunal it is clear that Daesung had a well founded fear that information provided would be commercially advantageous to its competitors and therefore provided the information on a confidential basis. Should that confidentiality not be observed Daesung would be in a position to claim its confidentiality had been breached.
The Tribunal went on to find, without expansion or explanation, that even if release of the information would not constitute a claim for breach of confidence, and if therefore section 45(1)
did not apply, either of subparagraphs (i) and (ii) of section 43(1)(c) would be sufficient to make the material exempt for the purposes of the Act. The Tribunal went on to conclude (para 16):
For these reasons, although the Tribunal has inspected the documents sought, it considers that specific rulings need not be given in respect to each individual document but that an application of principles to the facts of this case satisfies it that the onus on the Respondent created by S61 FOI Act has been met and that the decision to deny access should be affirmed.
It then upheld in their entirety the decisions of the respondent in relation to the two files to release some of the documents, not to release others, and to release others with deletions.
Grounds of appeal
The applicant attacks the decision of the Tribunal on four grounds. The first two may be treated together.
GROUNDS 1 AND 2: FAILURE TO PROPERLY CONSIDER EACH DOCUMENT
The primary allegations made by the applicant are that the Tribunal erred by failing to consider each document individually, and to rule separately in each case on the question of whether the document was exempt, and, if so, whether any expurgation should be made according to section 22 to make it not exempt.
The Tribunal referred on two occasions to its intention not to treat each document separately: paras 7 and 16 of the decision extracted earlier. It did specifically say that it had "had regard to the documents sought" (para 14) in reaching its conclusion, but nowhere in the decision did the Tribunal either make any specific reference to any particular document, or refer to any part of the evidence relating to specific documents, although there was such evidence before it (affidavit G E Cruttenden, attachment 3 and cross examination). Nor did it categorise the documents and then deal with them in categories. The impression gained from the judgment is that the Tribunal performed a function more appellate in nature, merely approving the decisions of the respondent by finding them not to involve any error of principle.
Nor does there appear in the reasons for decision any indication that the Tribunal directed itself to the possibility of further deletions to render any documents non-exempt. Such consideration is required by section 22 which obliges a decision-maker in each case to go beyond a mere finding that a particular document is in its current form exempt. This section constitutes an integral part of the scheme of the Act and is both an important adjunct to the right of access under section 11, and a qualification to the various exemption provisions.
In The News Corp Ltd and ors v National Companies and Securities Commission [1984] 5 FCR 88 the relevant dispute concerned the manner in which the Tribunal dealt with an application in respect of over 6,000 documents. In that case the Tribunal had regard
only to a schedule prepared by the respondent Commission and not the actual documents themselves. Justice Woodward said at 102:
However, the AAT studied the summaries of the documents as they appeared in the schedule, and accepted the argument of the respondent that it was not possible to identify which pieces might fit into the applicants' jigsaw puzzle. In my view this was a valid argument and, if the Freedom of Information Act is to remain workable, it must be open to a respondent, and to the AAT, to deal with large numbers of documents with a degree of generalisation appropriate to the case.
In many proceedings under the Act it will be appropriate for the Tribunal to make a global statement covering groups of documents that share similar characteristics. This may well include all documents which are the subject of a particular application. However, in my opinion, a Tribunal wishing to do so must provide in the reasons for decision some basic outline of the reasoning process by which such a global process was adopted, and the reasons why the documents sought to be obtained fall into one or other category of exempt document.
An important part of this process will include an indication that the process mandated by section 22 has been carried out. Where a document is not released at all, it will be appropriate in general that the decision-maker make some reference to section 22 -- even if to state simply or with a brief reason that it was not possible to release even a heavily expurgated version of the document. One case where this approach might be contemplated is where exemption is claimed under section 43(1)(c)(ii) because it is considered that any release at all would endanger the future
supply of such information. This provision was mentioned in the Tribunal's reasons but was not explained or embellished at all so that the reader could understand the Tribunal's perception of its relevance or application to the facts of this case.
On these grounds alone the applicant must succeed, and the matter should be remitted to the Tribunal.
GROUND 3: DENIAL OF ACCESS TO CERTAIN NAMES
The applicant alleges that the Tribunal erred by refusing access to parts of documents dealing with the names of the people with whom officers of the respondent had spoken in compiling the reports. It was said that there was no evidence to support these names being exempt. I simply do not know if this argument is correct because of the failure of the Tribunal to disclose its reasoning process. With some detail in the reasons for decision, it is to be expected that on a rehearing the basis upon which access was refused will be apparent, if indeed it is refused, as will any evidence accepted and relied on in forming that opinion. It is therefore neither possible nor necessary to rule on this ground of appeal.
GROUND 4: REFUSAL TO GRANT CONFIDENTIAL ACCESS TO APPLICANT'S LEGAL ADVISERS
The final ground of appeal was that the Tribunal erred in law in failing to allow the applicant's counsel confidential access to
the documents in issue. It raises an important question. As appears from the final paragraph of the decision, the matter was raised with the Tribunal:
As part of his submissions counsel for the Applicant formally submitted that he should be granted leave to inspect the documents as to which exemption from production was claimed. That submission was not pressed and it is unnecessary to rule on it.
In fact the transcript of proceedings before the Tribunal reveals the following submission by counsel for the applicant:
I make the formal submission that I should be entitled to see the documents that are before the tribunal, but I recognise that it has been dealt with in previous tribunal decisions, so I just make that formal submission in case it goes elsewhere.
In a technical sense it is thus incorrect to say that the submission was not pressed, and it should have been ruled on.
Justice Woodward stated in News Corp at 104 that it would have been inappropriate in that case to allow access to the disputed documents to counsel for the purpose of argument and on undertakings not to disclose to the litigants or to act for them in future proceedings. However, his Honour was primarily concerned with the public policy implications of an undertaking not to act in future proceedings and he specifically contemplated the giving of undertakings requiring only confidentiality between litigants, such as is envisaged in this case, as did Justice
Beaumont at 120. Only Justice Fox questioned at 96 whether the Tribunal is competent to accept such an undertaking.
The procedure contended for by the applicant was also adverted to obiter dicta in a different context and without reference to the relevant statutory provisions, by a full bench of the Tribunal, presided over by Justice Davies, in Re Witheford and Department of Foreign Affairs [1983] 5 ALD 534 at 541:
..... it should be mentioned that at the hearing an order was made pursuant to section 35 of the AAT Act prohibiting disclosure of the documents remaining in dispute to the applicant, who appeared in person. The documents were then produced and evidence was taken and submissions made in relation to those documents without the applicant having the documents before him. Awkward as this procedure may seem, the Tribunal is satisfied that this is clearly preferable to the only other alternative available, namely the exclusion of the applicant from the hearing while the particular documents are dealt with. Where an applicant is represented by counsel it may be that in appropriate circumstances the Tribunal may feel justified in permitting the documents to be seen by counsel subject to the making of an order under section 35.
On the other hand, it has been the view of various Tribunals: see, for example, Re Arnold Bloch, Leibler & Co and Commissioner of Taxation [1984] 6 ALD 62, Re Kim Yee Chan [1985] 8 ALN N48, Re Carver and Department of Prime Minister and Cabinet [1987] 12 ALD 447, that the legislative framework does not give to the Tribunal the power to make an order to supply documents to the applicant's counsel on undertakings.
In general parties are required to lodge any relevant documents with the Tribunal. Section 37(1)(b) of the AAT Act requires the production by each party to the Tribunal of:
every other document or part of a document that is in his possession or under his control and is considered by him to be relevant to the review of the decision by the Tribunal.
However, section 64(1) of the FOI Act provides:
Where there are proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document, section 37 of the Administrative Appeals Tribunal Act 1975 does not apply in relation to the document but the Tribunal, for the purpose of deciding whether the document is an exempt document, may require the document to be produced for inspection by members of the Tribunal only and if, upon the inspection, the Tribunal is satisfied that the document is an exempt document, the Tribunal shall return the document to the person by whom it was produced without permitting any person other than a member of the Tribunal as constituted for the purposes of the proceeding, or a member of the staff of the Tribunal in the course of the performance of his duties as a member of that staff, to have access to the document or disclosing the contents of the document to any such person.
In terms this section says that the Tribunal has a discretion whether to order the disputed documents produced, but if it so orders the documents are only to be seen by its own personnel and staff. Clearly section 37 of the AAT Act is displaced for the purposes of proceedings under the Act in respect of documents claimed to be exempt from production, but section 37 is not the only provision dealing with the production of documents in proceedings before the Tribunal. Section 39 of the AAT Act provides:
Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
Section 35 provides that hearings shall be public, but allows for restrictions on access and publication in certain circumstances: subs (2). Sections 36 and 36B provide for the intervention of the Attorney General to restrict disclosure of information on public interest grounds.
Presumably because the matter was not argued, the Tribunal did not consider whether section 39 operated to enable it to order disclosure to the applicant's legal representatives of the documents claimed to be exempt, even upon undertakings by the lawyers to protect the confidentiality of the documents and their contents. The applicant argued that section 64(1) should not be read so as to exclude confidential access being given to his lawyers. However, the terms of the section are clear and in my opinion it can and should not be read as being subject to section 39 as a substantial embodiment of the common law. As I see the position, if the only manner in which the Tribunal can "have regard" to documents claimed to be exempt from production is by the procedure contained in section 64(1) of the FOI Act, the application of section 39 is restricted and the Tribunal has no discretion to make the documents available to the applicant's counsel.
However, if the Tribunal can obtain the documents by some means other than an order, for example by voluntary production, section 64(1) would have no application. The operative sections in this event would be section 39 of the AAT Act, and section 63(1) of the FOI Act which provides:
In proceedings under this Part, the Tribunal shall make such order or orders under subsection 35 (2) of the Administrative Appeals Tribunal Act 1975 as it thinks necessary having regard to the nature of the proceedings and, in particular, to the necessity of avoiding the disclosure to the applicant of:
(a)exempt matter contained in a document to which the proceedings relate; ...
Had it so intended, Parliament could easily have enacted this provision to ensure a general and complete exclusion of access to exempt documents, or extending the preclusion of access to include the applicant's legal advisers. Instead section 63 does no more than reinforce the general power of the Tribunal to restrict access or publication under section 35(2) of the AAT Act, as explained by the legislative direction in section 35(3):
In considering:
(a)whether the hearing of a proceeding should be held in private; or
(b)whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence
by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.
This exhortation reflects the fundamental principle of adversarial proceedings and fair and due process that as far as possible one party not be in a position of superior knowledge of relevant facts to the other. And despite the nature of administrative proceedings and the expansiveness of access to evidentiary information given to the Tribunal by the AAT Act (s.37, 38), proceedings before the Tribunal are essentially and relevantly adversarial. Nothing could be more relevant to an issue about exemption than the allegedly exempt documents. Moreover, special care is required in proceedings under the FOI Act because by definition the respondent as the owner or custodian of the relevant documents will generally know their contents in detail whereas the applicant will not.
The Tribunal will always be placed in a difficult and I believe invidious position in holding the balance evenly between the parties when reaching a decision on exemption if the maximum possible opportunity of informed argument is denied. It is
generally undesirable that independent arbitrators make crucial decisions through self or unilateral instruction.
It appears to me that in the absence of an order under section 64(1) there is no express exclusion of section 39 of the AAT Act. In this circumstance I am unwilling to read such a restriction into the statutory framework. I conclude, therefore, that on its proper construction the FOI Act does not excise the great facility for all courts and tribunals of providing temporary confidential access to disputed documents to a party's lawyers, with all their solemn obligations not to disclose either the documents or their contents to anyone else including their client, and the major sanctions applicable to any breach.
In resolving this ground of appeal I am disadvantaged by not having been informed whether the Tribunal made an order compelling production under section 64(1). Presumably an order would not normally be necessary because, in most cases at least, the failure to produce the relevant documents voluntarily would seemingly deprive the Tribunal of any basis for upholding the exemption if it exercised its discretion not to make a section 64(1) order. I note that in this regard the onus is on the respondent department or official: s. 61 FOI Act. For these reasons, and as an order is not mentioned in the determination or the appeal papers, I have assumed that no order was made.
In my opinion, to grant confidential access to the applicant's counsel on appropriate undertakings in this case was within the discretion of the Tribunal. Any exercise of this discretion will necessarily be informed by the terms of section 35(3) of the AAT Act, as well as the general considerations I have mentioned. The Tribunal must, of course, also have regard to the nature of FOI Act proceedings, and the particular proceedings before it, in exercising its power under section 63 of the FOI Act to restrict access. It would be inappropriate for me to comment on the manner in which such a discretion should be exercised in this case. On the rehearing it will be open to the Tribunal to make or decline to make an appropriate order, and to take evidence and hear submissions on the matter.
Conclusion and order
I therefore uphold the application on the first, second and fourth grounds of appeal. The decision of the Tribunal will be set aside, and the matter remitted to the Tribunal to be heard, in accordance with these reasons for judgment, with or without further evidence as the Tribunal decides after hearing the parties' submissions on the matter. The respondent will pay the applicant's costs.
Counsel and Solicitors B. Walker SC and M. Speakman
for the applicant instructed by C.G. Gillis & Co
Solicitors for the P. Roberts instructed by D.
respondentRowland of the office of the Australian Government Solicitor
Date of Hearing 24 November 1994
Date of Judgment 17 May 1995
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