Department of Community Services v Latham

[2000] NSWADTAP 21

Appeal Panel

CITATION:	Director General, Department of Community Services -v- Latham (GD) [2000] NSWADTAP 21
PARTIES:	APPELLANT Director General, Department of Community Services RESPONDENT Paul Latham
FILE NUMBER:	009018
HEARING DATES:	18/08/2000
SUBMISSIONS CLOSED:	08/18/2000
DATE OF DECISION:	12/01/2000
DECISION UNDER APPEAL:	Principal matter
BEFORE:	O'Connor K - DCJ (President); Smith MB - Judicial Member; Antonios Z - Member
CATCHWORDS:	relevant/irrelevant considerations
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	993212
DATE OF DECISION UNDER APPEAL:	05/12/2000
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Latham v Director General, Department of Community Services [2000] NSWADT 58. Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 272) JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588
REPRESENTATION:	APPELLANT R Henderson, barrister RESPONDENT R Sproule
ORDERS:	Decision under appeal affirmed.

1 The respondent to this appeal, Paul Latham (Mr Latham), is an applicant under the Freedom of Information Act 1989 (the FOI Act) for access to documents held about him by the appellant (the agency).

2 Mr Latham applied for review by the Tribunal of decisions made by the agency to refuse him access to a number of documents. He was substantially successful in those proceedings: see Latham v Director General, Department of Community Services [2000] NSWADT 58.

3 In reply to Mr Latham’s application, the agency located 130 folios (or ‘pages’ as they were termed in the Tribunal’s decision) as being affected by the request. It released 61 pages fully and two others with exempt matter deleted. It refused to release 67 pages.

4 The Tribunal set aside the agency’s decision to refuse access to 64 of those pages, and affirmed its decision in respect of 3 pages. The agency challenges the Tribunal’s decision in respect of 3 documents amounting to 29 pages. The Tribunal’s decision in respect of the other 35 pages that it considered should be released has not been challenged by the agency, and Mr Latham has not challenged the decision in relation to the 3 pages where the agency’s decision was affirmed.

5 Mr Latham made his FOI application after a disciplinary inquiry into an incident at a group home where he had been employed. As the Tribunal decision notes at [1], Mr Latham’s request was expressed as being for ‘all correspondence internally and between the Department and Workcover re claim by Paul Latham for workers compensation’. Mr Latham attached a list to this application which set out several specific documents including ‘Fact Finding Interviews re alleged incident’ and ‘Senior Officers report re Fact Finding interview.’.

6 At para [5] of its decision the Tribunal gave further background as follows.

‘The background to this case is that Mr Latham was working as a casual employee with the agency at a group home for people with an intellectual disability. As a result of some information being given to the agency alleging that an employee at the group home had been verbally and physically abusing clients, the agency undertook some investigations to determine whether any disciplinary or other action should be taken against Mr Latham.’

7 The exemptions relied upon by the agency to refuse disclosure were the internal working documents exemption (cl 9 of Schedule 1), the law enforcement exemption relating to confidential sources of information (cl 4 of Schedule 1, in particular para (b)). In relation to the three documents where the agency decision was affirmed, the internal working documents exemption was considered to have been properly applied.

8 In relation to the 64 pages of material refused by the agency but considered appropriate to release by the Tribunal, the agency relied on the internal working documents exemption. In respect of 18 of the 64 pages it had also relied on the law enforcement exemption. The agency did not challenge the Tribunal’s reasons in respect of the application of the law enforcement exemption. The agency’s appeal related only to the Tribunal’s reasoning in respect of the internal working documents exemption.

9 The scheme of the FOI Act will not be outlined in detail here. Essentially an agency is obliged to give access to a document in its possession unless it chooses or is bound to withhold the document because it falls into a category of exemption. It has a discretion whether to withhold a document on the ground that it falls within the exemption related to internal working documents.

10 That exemption, cl 9 of Schedule 1, is as follows:

‘ 9 Internal working documents
(1) A document is an exempt document if it contains matter the disclosure of which:
(a) would disclose:
(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) 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.’

11 The investigation affecting Mr Latham involved a series of steps. The documentation generated at each of the key stages is in issue in this appeal. These steps were: a report from the management of the group home where Mr Latham worked, taking the form of a briefing note; then a report in relation to the internal investigation which followed, taking the form of a fact-finding investigation report prepared by the assistant manager of the group home; and finally, a report prepared by the Professional Conduct Unit in the agency assessing the investigation report and recommending that no action be taken. The Tribunal received oral evidence from the manager of the Professional Conduct Unit.

12 In this decision only the Tribunal’s reasoning in respect of those parts of the decision that remain in issue will be canvassed.

(1) Briefing Note - 29 March 1999

13 Pages 44-46, 109-111 and 10-12 of the material comprised 3 copies of a 3-page briefing note.

14 The briefing note was prepared by the ACM of the Ryde Community Services Centre (J Pitchford) and endorsed by the District Manager for that Centre. The briefing note had two basic elements, first, material in the nature of factual material intended to be taken into account by the recipient and secondly, recommendations to the recipient. Who the recipient was intended to be was not clear from the briefing note but the agency said at the hearing it was for the use of the Director General, the Minister or some other senior person in the Department.

15 The Tribunal noted that cl 9(2) excluded a document from exemption under cl 9(1) ‘if it merely consists of … factual … material’, and considered that some parts of the briefing note had this character. However, it concluded that material under the heading ‘Recommendations’ was not factual material and that it met the description of an internal working document in cl 9(1)(a).

16 For the exemption to be established a further criterion must be satisfied under cl 9(1)(b), namely that disclosure ‘would, on balance, be contrary to the public interest.’ The Tribunal concluded that that criterion was not met in the circumstances, for these reasons:

‘64. … These recommendations were endorsed by a senior officer and represent a final or operative decision of the agency. Disclosure would not reveal the agency’s “thought processes” as the recommendations were apparently carried out. The document provides the basis for the decision to make those recommendations and it is in the public interest that those reasons are disclosed.’

(2) Fact Finding Investigation Report - 15 June 1999

17 Pages 120-128 consisted of a ‘Fact Finding Investigation Report’ prepared by the assistant manager (M Patton) of the group home where Mr Latham was at the time employed. The report’s recommendation was that no action be taken.

18 The agency said that its usual practice was not to disclose disciplinary investigation reports where it was decided to take no action against the employee, later endorsed by the PCU.

19 The Tribunal found that the primary criteria contained in cl 9(1)(a) of the Schedule for classifying a document as an internal working document were met in the case of the Fact Finding Investigation Report, although parts of it merely consisted of factual information which should be disclosed. In relation to parts of the document which contained opinions and recommendations, it concluded that it had not been satisfied by the agency that the public interest test (cl 9(1)(b)) was satisfied. The Tribunal said at [74] and [75]:

‘74 This report was given to the PCU for assessment. The report by the PCU (pages 31-41) provided a summary and comments on the Fact Finding Investigation Report and recommended further action which was consistent with the original report but which recommended some further investigation and some specific ‘disciplinary’ action. Since there was no oral evidence given in this regard, I can only rely on the documentation before me which indicates that the PCU assessment supported the findings and recommendations of [the assistant manager]. In these circumstances, the Fact Finding Investigation Report cannot be considered as part of the agency’s thought processes or deliberations made in the course of a decision-making function. This document represents a final decision of the agency, given that the PCU report supported it.
75 The agency conceded that fact finding investigation reports are normally given to the person concerned if further disciplinary action is to be taken but not otherwise. This justification is not convincing especially since in this case some further disciplinary action was recommended. This document represents a final conclusion of the agency. The PCU made more specific recommendations which were consistent with the broad recommendations made in the report. Mr Latham was the subject of an investigation which came to some conclusions on the basis of the evidence. In these circumstances, there is a very strong public policy consideration in favour of disclosing that report to Mr Latham as it represents the agency's final conclusions in relation to some issues. Denying Mr Latham access to this document would deny him access to those conclusions and the reasoning on which they were based.’

20 A similar process of reasoning was followed and a similar conclusion was reached in relation to that reached in relation to the Fact Finding Investigation Report was reached in relation to the PCU report (pages 31-41) prepared by S Israel. See for example para [81] of the decision.

Alleged Error

21 As previously noted the appeal only relates to the Tribunal’s decision in respect of the three documents mentioned above.

22 The primary objection to the Tribunal’s decision made by the agency is that ‘the Tribunal erred by importing into its deliberations on whether documents were exempt documents under clause 9 an irrelevant consideration, namely: whether the documents related to a ‘final or operative’ decision.’ The agency referred to paras [56], [64], [74], [81] and [95].

23 The Tribunal was criticised for informing itself, by comparing the recommendations with the final outcome, that these documents disclosed reasons for final decision or as representing a final decision. The agency criticised the Tribunal’s approach of taking into account what the final outcome of the deliberative process had been and treating as a critical test, whether or not the documents disclosed the agency’s thought processes.

24 As we perceive the submissions, the agency’s contentions could be summarised as follows. That the Tribunal erred in law:

when deciding whether each document fell within cl 9(1)(a), by applying an irrelevant test of whether it recorded or concerned a final or operative decision;
alternatively, when deciding the cl 9(1)(b) public interest balance in each case, by applying exclusively a test of whether the document recorded or concerned a concluded decision. In other words, that the Tribunal excluded other considerations from the balance by limiting its function to addressing such a test.

25 The practical issue raised by the case is, we recognise, one of some significance. The stance of the agency has been not to make available investigation reports to the subject of the investigation in circumstances where the final decision is not to take any further action. This approach contrasts with the position that would ordinarily apply if the decision were taken to proceed with action. In that instance, the agency would usually need to rely on the material gathered in the investigative process and reveal it to the officer or employee charged.

26 Understandably, many officers or employees would entertain a sense of grievance if they were not permitted to see the investigative reports after an investigation has been undertaken into alleged misconduct leading to a welcome decision to take no action. On the other hand, we recognise that there may be countervailing systemic or case-specific considerations which might support a practice of non-disclosure of investigative reports where no disciplinary action results.

27 But the submissions of the agency in this case were not that there were other relevant considerations that were not taken into account by the Tribunal. Rather the agency’s submissions were simply to the effect that the considerations actually taken into account were not properly able to be taken into account or were improperly taken into account as exclusive considerations. We have approached the questions before us in this appeal against that background. We now turn to examining the reasoning process adopted by the Tribunal.

28 In applying the internal working documents exemption to the documents before it, the Tribunal strictly followed the approach of reaching a conclusion as to whether the document met the criteria for categorisation as an internal working document - those found in cl 9(a) and it then went on to apply the additional criterion contained in para (b), the public interest test.

29 It is plain that the references made by the Tribunal to such matters as whether a final and operative decision had been made, and whether the document revealed the agency’s thought processes, were factors addressed at the second stage of analysis. They were not taken into account in ascertaining whether the criteria in cl 9(1)(a) applied. We reject the submission to the contrary put to us by the agency.

30 Had this occurred there would, in our view, clearly have been an error. The requirement that the two specific classes of documents referred to in cl 9(1)(a) be created ‘in the course of, or for the purpose of, the decision-making functions of … an agency’ refer to the broad decision-making environment of the agency. It would be an error to differentiate between deliberations which did not, or have, not resulted in a final decision and those that have resulted in a final decision.

31 However, in each of the instances in issue in the appeal factors such as whether the document in issue formed part of a process of deliberation that has since given rise to a final decision were introduced into the discussion by the Tribunal as pertinent to striking the public interest balance under cl 9(1)(b). In each instance that factor was taken into account, and because there was now a final and operative decision consistent with internal advice the public interest balance was seen as tilted in favour of disclosure. (We note that the same analysis was also adopted in relation to one of the matters not raised in the appeal - material that was in the nature of a submission by Mr Latham (pages 58-64); see, for example, [69] of the reasons.)

32 Although there might be said to be a degree of looseness and imprecision in particular passages of the Tribunal’s reasons, these should not attract an over-zealous examination (cf Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 272).

33 In particular, it is important to read the challenged passages in their full context: both within the discussion on each document; but also in the context of the Tribunal’s general discussion on cl 9(1)(b) at [49-56] and in the light of its reasoning on other documents which are not the subject of the appeal. It must be borne in mind that in FOI matters such as the present a Tribunal determining multiple claims for exemption in relation to numerous documents will inevitably give increasingly brief reasons on particular documents, and that its reasons will necessarily have some obscurity due to the need to maintain the confidentiality of the documents in issue (cf s 55(a) of the FOI Act).

34 In relation to the present three documents, it is clear that the Tribunal thought it was relevant under the public interest balance to consider the extent to which each document provided deliberative ‘thought processes’ and the extent to which the decision-making for which it was prepared had been concluded. In our view these matters clearly came within the considerations which were relevant in the circumstances of the present documents, and it was open to the Tribunal to take them into account when balancing the public interest. We do not read the Tribunal’s present reasons as indicating that it gave them a higher status than this. In particular, we consider that it is clear that the Tribunal properly directed itself that other circumstances might point against the disclosure of the records of concluded decision-making.

35 The clearest indication that the Tribunal did not adopt a blanket opinion that the balance of public interest must always favour disclosure of documents revealing concluded decision-making is in its general discussion of cl 9(1)(b) at [56]. The Tribunal cited a passage from the Commonwealth Administrative Appeals Tribunal decision in Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588 at paras 58-60, which related to the process of deliberation and then went on to say:
‘56. Even though these paragraphs concern the meaning of ‘deliberation’ they highlight some of the public policy considerations relevant to the internal working documents exemption. In particular, there is, in my view, a legitimate public policy interest in agency’s [sic] being free to ‘think’ about decisions and to record its deliberations without having to disclose those thought processes. Giving access to the content of documents which merely represent the ‘though processes’ of the agency prior to any final or operative decision being made would make officers much more circumspect and self-conscious about the content of those documents and would inhibit the free flow of ideas and options. However once a decision becomes final or operative, it will be much more difficult to establish that disclose [sic] would be contrary to the public interest.’

36 We consider that the Tribunal in this passage recognised that the considerations it referred to are not necessarily the only public policy considerations ‘relevant to the internal working documents exemption’. It indicated only a general opinion that ‘it will be much more difficult to establish that disclos(ure) would be contrary to the public interest’ where decision-making has concluded. The agency did not argue that this opinion was infected by error of law. As expressed, it clearly does not say that an agency cannot establish a public interest in non-disclosure in such a case.

37 Moreover, when the Tribunal came to consider individual documents it is clear that it did take into account other considerations relevant to a public interest balance. In particular, it considered the agency’s submissions which supported an enduring public interest in maintaining the secrecy of fact-finding investigations which did not produce disciplinary action (see in particular: [21], [34], [72], [75], [80]). It also brought into its balance the countervailing consideration of the interest of an employee in knowing how his employer has investigated adverse allegations concerning his personal behaviour so as to allow him to consider the fairness and accuracy of what was recorded on his file (see in particular: [48], [53-4], [75]). The Tribunal also showed that it was aware of the important consideration of whether disclosure of a document ‘would inhibit the free flow of ideas and options’ (see [57], [69], [93-94], [101]). In short, we consider that generally throughout its reasons the Tribunal shows that it did not erroneously interpret cl 9(1)(b) as circumscribing the ambit of its considerations submitted before us by the agency.

38 Turning to the Tribunal’s reasoning on cl 9(1)(b) specific to each of the three documents.

39 In relation to the Briefing Note and recommendations, the Tribunal at [64] says: ‘Disclosure would not reveal the agency’s “thought processes” as the recommendations were apparently carried out. The document provides the basis for the decision to make those recommendations and it is in the public interest that those reasons are disclosed.’

40 As we have indicated above, we take these statements as containing the ‘findings’ on which the Tribunal refused to be satisfied that disclosure would on balance be contrary to the public interest. Although the findings are somewhat terse, we do not take them as indicating that the Tribunal thought that the public interest must always favour the disclosure of recommendations which have been carried out. In view of its earlier discussion on the public interest, we infer no more than that the Tribunal thought that this was the case in relation to this particular document in its particular circumstances. We do not consider that the Tribunal has been shown to have erred in law when so concluding.

41 In relation to the Fact Finding Investigation Report, the Tribunal found at [74] that it ‘cannot be considered as part of the agency’s thought processes or deliberations made in the course of a decision making function. This document represents a final decision of the agency, given that the PCU report supported it.’

42 We understand these statements to indicate a finding that the thought processes or deliberations for which this report was prepared had concluded. That is, the first of the quoted sentences should be read as if ‘on-going’ or ‘continuing’ were implied before ‘thought processes or deliberations’. The Tribunal then applied this finding in [75] in a way which, in our opinion, shows that other considerations were also taken into account before a conclusion refusing to be satisfied as to cl 9(1)(b) was drawn in [76]. In particular, the Tribunal expressly brought into the balance the public interest raised by consideration of fairness to the agency. We do not consider that the Tribunal treated its finding that ‘this document represents a final conclusion of the agency’ as itself necessarily determining the balance.

43 In relation to the PCU Review, the Tribunal’s finding at [81] that ‘the document represents a final decision in relation to Mr Latham’s matter rather than the ‘thought processes’ leading to a decision’ should be understood in the same way. That is, the Tribunal found, not that the document did not relate to ‘thought processes’, but that the document’s recommendations were no longer under active consideration but had become ‘a concluded view which was acted upon’. The agency did not seek to persuade us that there was no factual basis on which this finding could be supported in law. Having made it, it was in our opinion open to the Tribunal then to bring into the balance ‘Mr Latham’s public interest in knowing the basis for that view’, and for it to decide that this public interest ‘outweighs any public interest in keeping it secret’. The process of reasoning expressed in [81] does not contain the error which the agency submitted.

44 We would therefore dismiss the appeal and affirm those parts of the decision of the Tribunal as they relate to the three documents in question. Consequently it is unnecessary to consider the application to extend the appeal to the merits.

Order

Decision under appeal affirmed.