Department of Health v Jephcott
[1985] FCA 536
•04 OCTOBER 1985
Re: DEPARTMENT OF HEALTH and BERNARD VINCENT McKAY
And: LOIS JEPHCOTT
No. VG.35 of 1985
Administrative Law - Freedom of Information - Words, Phrases and Maxims
8 FCR 85
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Forster(1), Keely(2) and Davies(3) JJ.
CATCHWORDS
Administrative law - Appeal from Administrative Appeals Tribunal - Freedom of information - request for access - refusal to confirm or deny existence of document - question for AAT whether disclosure (if document exists) would reveal existence or identity of confidential source of information in relation to enforcement or administration of law - meaning of confidential source - Tribunal in error in finding that substantial risk of impairment to enforcement or administration of law needs to be shown - procedure before AAT when existence of document neither confirmed nor denied discussed
Words and phrases - "confidential source"
Freedom of Information Act 1982 (Cth) ss.25, 37(1)(b)
Administrative Law - Freedom of information request for access - Refusal to confirm or deny existence of document - Question whether disclosure (if document exists) would reveal existence or identity "of confidential source of information in relation to enforcement or administration of law" - Meaning of "confidential source" - Whether any public interest consideration necessary - Whether necessary to show "substantial risk of impairment to enforcement or administration of law" if document disclosed - Procedure before AAT when existence of document neither confirmed nor denied.
Freedom of Information - Meaning of "confidential source" - Exemption under s 37(1)(b) of Freedom of Information Act 1982 (Cth) - Whether any public interest consideration necessary - Whether necessary to show "substantial risk of impairment to enforcement or administration of law" if document disclosed - Procedure before AAT when existence of document neither confirmed nor denied under s 25 of the Act.
Words, Phrases and Maxims - "confidential source" - Freedom of Information Act 1982 (Cth), ss 25, 37.
HEADNOTE
Held: (1) Per curiam - For the purposes of s 37(1)(b) of the Freedom of Information Act 1982 a "confidential source" is one where the information provided from that source was given with an express or implied pledge of confidentiality.
(2) Per curiam - In determining whether a document is exempt under the provisions of s 37(1)(b) of the Act, it is not necessary to engage in an exercise of balancing public interests. Nor is it necessary to demonstrate "a substantial risk of impairment" to the administration or enforcement of the law before the identity of a confidential source is entitled to protection under this ground of exemption from disclosure.
(3) Per Davies J - Where an agency has given notice under the provisions of s 25 of the Act, neither confirming nor denying the existence of a document, it is encumbent upon the agency in a review by the Tribunal, to adduce evidence to support the contention that the document, if it existed, would be an exempt document. It may call evidence in open session to show that, if a document of that type existed, it would be exempt. Any difficulties which the agency might face in adducing evidence without revealing whether the document does or does not exist might be overcome by recourse to the provisions of the Act which enable the Tribunal to receive evidence in confidential session.
Luzaich v. United States 435 F Supp 31 (1977); Thompson v. Goold & Co (1910) AC 409, referred to.
HEARING
Melbourne, 1985, August 29-30; October 4. #DATE 4:10:1985
APPEAL
Appeal from decision of the Administrative Appeals Tribunal.
S C Kenny, for the applicants.
G D Nash, for the respondent.
Cur adv vult
Solicitors for the applicants: Australian Government Solicitor.
Solicitor for the respondents: L H Robertson.
SMW
ORDER
The appeal be allowed.
The decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
Note : Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Appeal allowed
JUDGE1
The respondent thought that the Department of Health might have on its files a letter from her sister Mrs Butler concerning her (the Respondent's) care of their late mother Mrs Myrtle Whitehead with respect to whom the respondent had been for some years prior to Mrs Whitehead's death in 1983 in receipt of a domiciliary nursing care benefit pursuant to Part VB of the National Health Act. An application for such a benefit with respect to her father-in-law Nigel Keith Jephcott had not been granted. On 8 March 1984 the respondent made a request in writing pursuant to the Freedom of Information Act 1982 on a printed form headed "F.O.I. Request Form". This was directed to the Department of Health and sought access to the following documents -
(1) Records held on me re domiciliary allowance for Nigel Keith Jephcott also
(2) Records held on information given by Mrs Linda Butler about me and my late mother Mrs Myrtle Whitehead, Corryong.
The documents sought in para. (1) were supplied but in a letter dated 17 May 1984 Mr J.G. Burt the Director for Victoria of the Department of Health neither confirmed nor denied the existence of the documents sought in para. (2) claiming to be entitled to give this answer because of the combined effect of ss. 25 and 37(1)(b) of the Freedom of Information Act. By letter dated 21 June 1984 to the Director-General of Health in Canberra the respondent sought a review of Mr Burt's decision pursuant to s.54 of the Act which provides for an internal review of such decisions. The Director-General authorised Miss Ann Kern the Deputy Director-General to review Mr Burt's decision. By letter apparently undated Miss Kern informed the respondent that having conducted the requested review her decision was to confirm Mr Burt's decision. As she was entitled to do the respondent then appealed to the Administrative Appeals Tribunal under s.55 of the Freedom of Information Act.
By decision handed down on 7 February 1985 Mr I.R. Thompson a Deputy President of the Administrative Appeals Tribunal set aside the decision complained of by the respondent and remitted the matter to the Secretary of the Department of Health -
"...for reconsideration in accordance with a direction that, if the Department of Health ('the agency') has in its possession any document containing the information referred to by the applicant in her request, access is to be granted to it, unless it is an exempt document under any provision of the Freedom of Information Act 1982 ('the FOI Act') other than section 37 thereof and the respondent, or an officer of the agency acting within the scope of authority conferred on him under the FOI Act in accordance with arrangements approved by the respondent, decides that access to it should not be given to the applicant."
The Department of Health and Bernard Vincent McKay its Secretary appealed to this Court against the decision of the Administrative Appeals Tribunal.
It appears that the administration of the relevant part of the National Health Act has since 13 December 1984 been transferred to the Department of Community Services of which Michael Henry Codd is the Secretary. At the time that the decision now under review was made the Department of Health of which Mr McKay was Secretary was the department administering the relevant parts of the Health Act. At the time that the application was made to the Administrative Appeals Tribunal for review the position was the same. On 4 February 1985 when the Administrative Appeals Tribunal handed down its decision the administrative arrangements had changed but this seems to me to be irrelevant. It was the decision of the Department of Health with which the Administrative Appeals Tribunal dealt and it is the Tribunal's decision on that decision with which we now deal. I can see no necessity to amend the proceedings before us. Depending on the result of the appeal to this Court the order may need to encompass the altered administrative arrangements.
Section 25 of the Freedom of Information Act is as follows:
"25. (1) Nothing in this Act shall be taken to require an agency or Minister to give information as to the existence or non-existence of a document where information as to the existence or non-existence of that document, if included in a document of an agency, would cause the last-mentioned document to be an exempt document by virtue of section 33 or 33A or sub-section 37(1).
(2) Where a request relates to a document that is, or if it existed would be, of a kind referred to in sub-section (1), the agency or Minister dealing with the request may give notice in writing to the applicant that the agency or the Minister, as the case may be, neither confirms nor denies the existence, as a document of the agency or an official document of the Minister, of such a document but that, assuming the existence of such a document, it would be an exempt document under section 33 or 33A or sub-section 37(1) and, where such a notice is given-
(a) section 26 applies as if the decision to give such a notice were a decision referred to in that section; and
(b) the decision shall, for the purposes of Part Vl, be deemed to be a decision refusing to grant access to the document in accordance with the request for the reason that the document would, if it existed, be an exempt document under section 33 or 33A or sub-section 37(1), as the case may be."
Section 37(1) of the Freedom of Information Act is as follows:
37. (1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to-
(a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;
(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law; or
(c) endanger the life or physical safety of any person."
Section 25 is in some respects rather curious in that it provides for the notional creation of a hypothetical document. In this case it is a document of the agency including information as to the existence or non-existence of a letter or a memorandum of some other sort recording information given by Mrs Butler about Mrs Jephcott and Mrs Whitehead. If such a hypothetical document existed and was an exempt document by virtue of section 37(1) then the Department was entitled to give the answer which it gave neither admitting nor denying the existence of any record of information given by Mrs Butler. It is rightly conceded that sections 33 and 33A are not relevant to the matter in hand. So far as section 37(1) is concerned section 37(1)(b) is the only relevant sub-section. If the hypothetical document to which I have referred would "disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law" then the hypothetical document would be exempt and pursuant to section 25(2) the Department was entitled to give notice to Mrs Jephcott as it did neither confirming nor denying the existence of records of information given by Mrs Butler about Mrs Jephcott and Mrs Whitehead.
The central point of this matter is whether if Mrs Butler did give information to the Department concerning Mrs Jephcott and Mrs Whitehead she should rightly be regarded as a "confidential source of information in relation to the enforcement or administration of the law". I should perhaps say that Mrs Jephcott apprehended that Mrs Butler might have communicated with the Department concerning Mrs Jephcott's care of their mother because Mrs Butler wrote to her a letter critical of the care she had provided for their mother. Mrs Jephcott, because of difficulties she experienced with her application for a similar nursing care benefit with respect to the case of her father-in-law, was led to think that Mrs Butler might have communicated with the Department.
It is not disputed that if Mrs Butler did give information to the Department concerning Mrs Jephcott and Mrs Whitehead such information would on balance be in relation to the enforcement or administration of the law viz: The National Health Act. The Administrative Appeals Tribunal appeared to be prepared to accept that if Mrs Butler had given information to the Department concerning Mrs Jephcott and Mrs Whitehead then she would not have wished this fact to be disclosed. On pages 12 and 13 of its decision the Tribunal says:
"What has to be decided, therefore, in respect of section 37(1)(b) is whether a person who gives to the Department information which relates to a recipient of a domiciliary nursing care benefit under Part VB of the National Health Act and is relevant to his qualification for that benefit, and who either expressly states that he does not want the fact that he has done so disclosed or who, from the nature of the information that he has given, can be taken to have had such a wish, is to be regarded as a confidential source of information in relation to the enforcement or administration of that Act whose identity or existence is to be protected from disclosure under section 37(1)(b)."
It is not clear to me how the Tribunal reached this conclusion. All information given to the Department cannot be "confidential information" or "given in confidence" or come from "a confidential source" so that the mere giving of information without more cannot make the giver a confidential source. What then is a "confidential source"? I am content to accept the interpretation in Luzaich v United States (1977) 435 F.Supp 31 ' 35 " a source is confidential if the information was provided under an express or implied pledge of confidentiality". In the case of an existing document containing information it might be simple enough by reading the document to discover that the information was provided under an express or implied pledge of confidentiality but in the case of a document which may or may not exist the matter is more difficult. It could be that Departmental practice when receiving information of certain types might be of assistance but this Court knows nothing of this. It could also be that the presumed contents of the possibly non-existing document, apprehension as to its contents and the relationship of the supposed informant to the person supposedly informed about might enable an inference to be drawn that the information provided, if any, was so provided under an implied pledge of confidentiality. Counsel for the respondent argues that this is the position here but I have difficulty in accepting that proposition.
As I have said, the Tribunal appears to have accepted the proposition that in this case it could be inferred that the hypothetical informant in this case did not wish the fact that she gave information to be disclosed. However the Tribunal went on to say that-
"...for a person to be regarded as a confidential source of information in relation to the enforcement or the administration of the law there must be a substantial risk that the enforcement or administration of the law will be impaired if he and others are deterred from giving such information by the risk of disclosure of his or their identity."
Here I think the Tribunal is in error.
No doubt the main reason for protecting the identity of informants is to encourage them and others like them to give information, or at least not to discourage them from doing so, in order to assist the enforcement or the administration of the law. No doubt also the provisions of s.3 of the Freedom of Information Act must be "borne in mind" (see News Corporation Ltd v National Companies and Securities Commission (1984) 52 A.L.R. 277) when interpreting the Act generally and section 37(1)(b) in particular. However there seems to me with all respect to the Tribunal to be no warrant in the Act or elsewhere for engaging in the exercise of balancing one public interest against another and concluding that "substantial risk" must be shown before the identity of a confidential source whether actual or hypothetical is entitled to protection. Section 37(1) makes no reference to public interest or competing public interests as do some other sections of the Act see section 36 for instance which of course immediately precedes section 37.
If a source of information is properly to be regarded as a confidential source then there is, in my view, no room for the concept of "a substantial risk that the administration of the law will be impaired". Either it is established that a source is a confidential source or it is not. If it is, then it is entitled to the protection given by s.37(1)(b) and no "bearing in mind" of the purposes of the Freedom of Information Act either as set out in s.3 or discovered elsewhere can, in my view, affect the position. When considering whether or not it is established that a source is a "confidential source" it must be borne in mind that the onus is on the agency, in this case the Department of Health, to establish it on, I presume, the balance of probabilities.
We are informed that counsel for the appellant offered to the Tribunal to call evidence from the Department but this offer was not accepted. I would remit this matter to the Tribunal for rehearing.
No order should be made as to costs.
JUDGE2
In this appeal I have had the advantage of reading both the reasons for judgment prepared by Forster J and those prepared by Davies J and it is unnecessary to repeat the relevant statutory provisions, the material facts or the submissions made by the parties.
I accept the submission of Miss Kenny, of counsel, on behalf of the applicants, that the Tribunal erred in law in construing the Freedom of Information Act 1982 (Clth) and in particular s.3 and s.37(1)(b), as meaning "that for a person to be regarded as a confidential source of information in relation to the enforcement or the administration of the law there must be a substantial risk that the enforcement or administration of the law will be impaired if he and others are deterred from giving such information by the risk of disclosure of his or their identity." Section 37(1)(b) says nothing as to the need to show "a substantial risk".
Accordingly, in my opinion the appeal should be allowed and the matter should be remitted for re-hearing by the Administrative Appeals Tribunal. There should be no order as to costs.
I also accept Miss Kenny's submission that "a confidential source of information" in s.37(1)(b) means a person who has supplied information on the understanding, express or implied, that his or her identity will remain confidential. However I should add that, on the evidence before the Tribunal, I am unable to accept her contention that it necessarily followed that "a document disclosing that the Respondent's sister had given information to the agency concerning the Respondent's entitlement to a domiciliary nursing care benefit would, if it existed, have been exempt under paragraph 37(1)(b)" of the Act.
JUDGE3
The argument presented to the Court disclosed two misconceptions of law. The first was that which appeared in the reasons for decision of the learned Deputy President of the Administrative Appeals Tribunal, a view which was supported by Mr G. Nash, of counsel, who appeared for the respondent on the appeal. Paragraph 37(1)(b) of the Freedom of Information Act 1982 (Cth) ("the FOI Act") provides :
"37.(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to -
(a) ...
(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law; or
(c) ...
.....".
The learned Deputy President considered that this paragraph imports an element of public interest which it does not expressly state, that it does not exempt a document unless there is "... a substantial risk that the enforcement or administration of the law will be impaired if he (the confidential source) and others are deterred from giving such information by the risk of disclosure of his or their identity." In my opinion, the paragraph imports no such element. The paragraph is unequivocal in terms and, in the context, has a sensible operation. It should be read according to its terms. No ground exists for implying a qualification. As Lord Mersey said in Thompson v Goold & Co. (1910) AC 409 at 420, "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do."
Accordingly, the appeal should be allowed and the matter remitted for re-hearing.
The second error of law appeared in the submission put by Ms S. Kenny, counsel for the applicant, when she was discussing the nature of the hearing before the Administrative Appeals Tribunal. Section 25 of the FOI Act provides :
"25.(1) Nothing in this Act shall be taken to require an agency or Minister to give information as to the existence or non-existence of a document where information as to the existence or non- existence of that document, if included in a document of an agency, would cause the last- mentioned document to be an exempt document by virtue of section 33 or 33A or sub-section 37(1).
(2) Where a request relates to a document that is, or if it existed would be, of a kind referred to in sub-section (1), the agency or Minister dealing with the request may give notice in writing to the applicant that the agency or the Minister, as the case may be, neither confirms nor denies the existence, as a document of the agency or an official document of the Minister, of such a document but that, assuming the existence of such a document, it would be an exempt document under section 33 or 33A or sub-section 37(1) and, where such a notice is given -
(a) section 26 applies as if the decision to give such a notice were a decision referred to in that section; and
(b) the decision shall, for the purposes of Part VI, be deemed to be a decision refusing to grant access to the document in accordance with the request for the reason that the document would, if it existed, be an exempt document under section 33 or 33A or sub-section 37(1), as the case may be."
Ms Kenny submitted that, in a hearing before the Administrative Appeals Tribunal reviewing a decision given under s.25(2), the agency would have difficulty in adducing evidence as the section "proceeds on a completely fictitious basis" and "the question before the Tribunal must be whether a notional document would be exempt under section 37(1)(b) of the Act."
However, s.25(2) does not speak of a notional document. It speaks of a document, to which access is requested, which "is, or if it existed would be, of a kind referred to in sub-section (1)", that is to say, "an exempt document under section 33 or 33A or sub-section 37(1)". In open session before the Tribunal, the agency would be entitled to call evidence that, if a document of that type existed, it would be an exempt document by virtue of s.37(1). The agency could rely upon the description of the document in the request for access and may be able to adduce evidence that documents of that type relate to the enforcement or administration of the law and are written and received in confidence. In confidential session before the Tribunal, the agency may be able to adduce evidence that the document does exist and that the grant of access to it would enable the applicant for access to ascertain the existence or identity of a confidential source of information in relation to the enforcement or administration of the law.
The essential point that I make is that s.25(2) does not refer to a purely notional or fictional document. It refers to a document which either exists and is, or if it existed would be, an exempt document by virtue of ss.33 or 33A or 37(1). In working out its procedures in a review of a decision taken under s.25(2), it is necessary for the Tribunal to have regard to s.25(1) and, therefore, in an appropriate case, to avoid disclosing to an applicant, expressly or by inference, that the document sought exists, or does not exist. The Tribunal can deal with this by the procedures which it adopts. It is not necessary to overcome any problem which may arise in the administration of s.25 by giving to the words of the section a meaning which they do not bear.
Section 25(2) does not authorise the giving of notice under the sub-section unless the agency or Minister is satisfied that the document is, or if it existed would be, of the kind referred to in s.25(1), namely, an exempt document by virtue of ss.33 or 33A or 37(1). Satisfaction as to this may be gained from several sources, including an examination of any relevant file. When the present matter is remitted to the Administrative Appeals Tribunal, the Tribunal will also have to satisfy itself as to whether the document to which access is sought is, or if it existed would be, an exempt document by virtue of s.37(1)(b). In performing this task, it will be able to examine the request for access, to hear any evidence put before it, whether in open or confidential session, and, if the Tribunal thinks it desirable to do so, to require the production to it, on summons if necessary, of any file on which the document, if it existed, would be likely to be found.
I do not see the difficulty to which Ms Kenny adverted, save that, in determining the procedures to be adopted in the review, the Tribunal should, if it is appropriate to do so, ensure that the existence or non-existence of the document cannot be ascertained or inferred from the procedures adopted.
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