Department of Planning & Local Government v Chapman
[2012] SADC 120
•27 September 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)
DEPARTMENT OF PLANNING & LOCAL GOVERNMENT v CHAPMAN
[2012] SADC 120
Judgment of Her Honour Judge Cole
27 September 2012
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION
Appellant sought permission to appeal pursuant to s 40(1) of the Freedom of Information Act 1991 from a determination of the Ombudsman on an external review of the appellant's decision in relation to an application for access to documents made by the respondent - questions of law considered - permission to appeal granted - appeal dismissed.
Freedom of Information Act 1991 (SA); Development Act 1993 (SA); Freedom of Information Act 1982 (Cth), referred to.
Craig v State of South Australia (1994) 184 CLR 163; Kioa & Ors v West & Anor (1985) 159 CLR 550; Re Refugee Review Tribunal & Anor; Ex parte Aala [2000] HCA 57; 204 CLR 82; Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah [2001] HCA 22, 206 CLR 57; Re Maher and A-G's Department (No 2) (1985) 7 ALD 731 at 737; Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 1221; Ipex Information Technology Group Pty Ltd v The Department of Information Technology Services South Australia (1997) 192 LSJS 54; Attorney-General's Department v Cockroft (1986) 64 ALR 97; Department of Premier and Cabinet v Redford (2005) 240 LSJS 171, considered.
DEPARTMENT OF PLANNING & LOCAL GOVERNMENT v CHAPMAN
[2012] SADC 120
The Department of Planning and Local Government (“the Department”) sought permission to appeal, pursuant to s 40(1) of the Freedom of Information Act 1991 (“the Act”), from a determination of the Ombudsman on an external review of the Department’s decision in relation to an application for access to documents made by Ms Chapman pursuant to the Act. The application for permission to appeal, and the arguments in relation to the questions of law posed in the appellant’s third notice of appeal, were heard together by Judge Griffin. With the agreement of the parties, I have proceeded to judgment on the basis of the documents before the Court and the transcript.
History,[1]
[1] Affidavit of Amanda Jane Nicholls sworn on 14 June 2011
In 2009, the Department embarked upon a public consultation process, pursuant to s 22(4) of the Development Act 1993, in relation to a proposal to alter the Planning Strategy under that Act. The process for the making of a submission in relation to the proposed alteration to the Planning Strategy included the provision by the Department, to those wishing to make a submission, of a proforma coversheet for each submission. The proforma sheet provided for certain information to be written on it by the person making the submission, and also contained information and directions including the following:
All submissions will be available for inspection on level 5 RMH 136 North Tce Adelaide after the completion of consultation period [sic] unless they are marked ‘CONFIDENTIAL’,
If you wish your submission to be treated as confidential please clearly mark it “IN CONFIDENCE” and tick the box:
□ My submission is confidential. (see note below)
If your submission is not confidential please tick the box:
□ I give permission for my submission to be made available for public inspection at Roma Mitchell House, 136 North Terrace Adelaide 5000. (see note below)
Please note:
All personal details other than your name and suburb in which you reside will be removed from your submission before being made available for public inspection.
The Department received 578 submissions, but not all of them used a coversheet. The Department treated those submissions which did not have a coversheet as confidential submissions.
Those submissions which had the box ticked, indicating that the submitter did not wish the submission to be treated as confidential, were uploaded onto the website set up by the Department in relation to the draft alteration to the Planning Strategy. Prior to the uploading, all personal information, except for the submitter’s first name and suburb, were edited out of the submission. The submission, so edited, was then available to be viewed by anyone who went to the website. The submissions which were being treated as confidential were not uploaded onto the website.
On 30 September 2009, the Department received an FOI application (“FOI 1”) which sought access to all of the public submissions up to that date except for those made by individuals. On 9 October 2009, the Department received a second FOI application (“FOI 2”), which sought access to all of the submissions on the draft Plan. Ms Nicholls, an accredited FOI officer for the Department, caused a consultation process to be undertaken in relation to all 578 submissions made in relation to the Plan pursuant to s 26 or 27 of the Act. Neither FOI 1 nor FOI 2 is the subject of this appeal, but their processing forms part of the chain of events relevant to the FOI application which is the subject of this appeal.
The Government released the final plan, which was called “The 30 year Plan for Greater Adelaide” on 17 February 2010.
The Department made a determination in relation to FOI 1 and FOI 2 on 19 February 2010.
On 12 May 2010, the Department received an FOI application from Ms Chapman (“FOI 3”). Ms Chapman sought access to:
The submissions listed as “unavailable for public inspection at the request of the submitter” on the list of submissions received by the State Government in regard to the Draft 30-Year Plan for Greater Adelaide.
Ms Nicholls interpreted Ms Chapman’s application to mean that Ms Chapman sought access to all of the submissions which had not been uploaded onto the website. There were 131 such submissions. Ms Nicholls decided not to consult again with the makers of those submissions, on the basis that their views in relation to the potential release of their submission had already been sought in the context of FOI 1 and FOI 2 and those views were sufficiently current to be relevant to FOI 3.
Ms Nicholls made a determination, as a delegate, in relation to FOI 3, on 9 June 2010. Ms Nicholls determined that, of the 131 submissions involved, 32 submissions should be released in full and provided to Ms Chapman on a CD, 89 submissions were exempt from disclosure in full pursuant to clauses 6(1) and 7(1)(b) of Schedule 1 to the Act and 10 submissions were exempt in part pursuant to those same clauses of Schedule 1 (“the original determination”).
By letter dated 10 June 2010, Ms Chapman applied to the Department for an internal review of the original determination. The Department’s Principal Officer, Mr Ian Nightingale, undertook that internal review as a delegate. Mr Nightingale made a determination in relation to the internal review on 30 June 2010 (“the internal review determination”). The practical effect of Mr Nightingale’s determination was that no further documents were released, and Mr Nightingale decided that an additional ground for exemption applied to 53 of the submissions, namely clause 4(1) of Schedule 1 of the Act.
Ms Chapman applied to the Ombudsman for an external review of the internal review determination. On 19 July 2010, the Ombudsman wrote to Mr Nightingale informing him of the external review application and seeking certain information.[2] An exchange of correspondence followed, in which the Department provided the Ombudsman with the information requested by him. The Ombudsman undertook a process of consultation with some of the makers of the submissions pursuant to s 38(10) of the Act. By agreement with the Ombudsman, Ms Chapman narrowed the scope of her application, so that she no longer sought the disclosure of an unedited version of a number of documents which had been provided to her in a redacted form, and she accepted the disclosure of a number of further documents which had not been disclosed at all with identification and contact information deleted.[3] The Ombudsman published his decision in relation to the external review on 2 March 2011 (“the Ombudsman’s decision”) and wrote to Mr Nightingale, enclosing the decision, on the same day. The Ombudsman’s decision varied the internal review determination. The effect of the Ombudsman’s decision would be the release of all of the documents which remained in dispute (with the redaction of some information about the maker of the submission in some cases).
[2] Affidavit of Amanda Jane Nicholls sworn on 14 June 2011, paragraphs 21 and 22 and AJN 8.
[3] Ombudsman's reasons for determination, exhibit AJN 15 to the affidavit of Amanda Jane Nicholls sworn on 14 June 2011.
Right of Appeal
The Act provides, in s 40(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.
A review under Division 1 is an external review: in this case, the review by the Ombudsman.
Permission to appeal
The Department sought the Court’s permission to appeal pursuant to s 40(1). The respondent did not concede the giving of permission, but, once the points of law had been clearly articulated, did not resist. There are plainly questions of law to be decided on the appeal. Permission to appeal against the determination of the Ombudsman on the review under Division 1 of the determination of the respondent in relation to Ms Chapman’s application under the Act will be granted.
Points of Law
Immediately prior to trial, points of law were distilled on the appellant’s behalf and set out in the third notice of appeal. I will deal with the points of law forming the substance of the appeal in turn. There must originally have been eight points of law, but points 3 and 4 were not argued before the Court, leaving six points of law numbered 1, 2, 5, 6, 7 and 8 in the papers.
Question 1[4]
Do s 39, s 40, s 48 and Schedule 1 of the Act require the Ombudsman in conducting an external review of a determination made by an agency to accord procedural fairness to that agency by providing it with the information obtained, or a summary of it, by the Ombudsman in his consultation with third parties prior to the determination being made?
Ground:
The determination of the Ombudsman should be set aside and the matter remitted as the Ombudsman did not provide the DPLG with the information obtained or a summary of it, prior to the Ombudsman’s making a determination on the external review.[4] third notice of appeal
The arguments
Mr Jacobi argued that the Ombudsman was required, by the rules of natural justice, to afford procedural fairness to the Department and that, in the circumstances, that requirement necessitated the provision by the Ombudsman to the Department of material gathered by the Ombudsman by means of the consultation process the Ombudsman undertook, and the provision of an opportunity to the Department to provide responding information and further submissions in relation to that material.
A denial of procedural fairness, where procedural fairness is required to be given, is clearly an error of law.[5]
[5] Craig v State of South Australia (1994) 184 CLR 163; Kioa & Ors v West & Anor (1985) 159 CLR 550. Re Refugee Review Tribunal & Anor; Ex parte Aala [2000] HCA 57; 204 CLR 82
It was common ground that the Ombudsman did not provide the submissions obtained by him in his consultation process, or a summary of them, to the Department. The Ombudsman sought further information and submissions from the Department at about the same time as he consulted with the makers of submissions in respect of the Draft 30 Year Plan. The Ombudsman did not give the Department an opportunity to give further information or make further submissions in response to the material gathered by the Ombudsman, from the makers of submissions, in his consultation process.
Mr Jacobi argued that the Department had an “interest” or “right” in being provided with the result of the consultation in the administrative law sense. Mr Jacobi argued that this “interest” or “right” could be divined from three aspects of the legislative scheme:
1.the interest an agency has in a determination given the terms of the exemptions in Schedule 1;
2.the burden of proof on an agency in an external review to justify a determination including the claim for any exemption under s 48; and
3.the limited nature of the appeal rights against a decision of the Ombudsman given to an agency by s 40(1) of the Act.
I will return to a discussion of these three aspects of the scheme below.
Dr Bleby sought to place the discussion of ground 1 in the context of the scheme of the Act. The Act creates a legally enforceable right in a person to be given access to an agency’s documents in accordance with the Act, consistent with the objects of the Act. The agency is entitled to refuse access to a document on the grounds set out in s 20 of the Act, which include the ground that the document is an exempt document. Under Division 2 of Part 3, an agency may not give access to documents which fall within the classes described in Division 2[6] unless the agency has “taken such steps as are reasonably practicable” to obtain the views of people of the classes described in relation to each class of document in Division 2 (who the legislature has identified as being likely to be affected). Pursuant to s 29, a person aggrieved by a determination made by an agency is entitled to an internal review. The procedure for an internal review is not prescribed. The Act provides, in s 39, that a person aggrieved by a determination following an internal review, or a person aggrieved by a determination which is not liable to internal review, may apply for external review. The Act provides, in s 39(10):
A relevant review authority must not make a determination to the effect that access is to be given to a document to which Division 2 of Part 3 applies unless the relevant review authority has taken steps as are reasonably practicable 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.
[6] documents affecting inter-governmental or local governmental relations, documents affecting personal affairs, documents affecting business affairs and documents affecting the conduct of research
The Act defines “interested person” for the purpose of s 39 as follows:
interested person, in relation to a review, means a person who should, under Division 2 of Part 3, be consulted in relation to an application for access to a document the subject of the review.
Dr Bleby pointed out that the agency (in this case, the Department), is not included in the definition of “interested person”. Dr Bleby argued that the Act thus expressly creates a positive obligation of natural justice in relation to a defined class of persons on an external review. The Act does not, however, go on to provide that the review authority (in this case, the Ombudsman), must consult with the agency concerning the results of its consultation with the interested persons. Dr Bleby argued that the legislature, having turned its attention to a consultation obligation for the external review authority, had not included the agency in that process, creating a strong indication that no such right of consequent consultation with the agency by the review authority was intended. Dr Bleby submitted that this was not surprising, given that the agency has had the opportunity to engage, in the course of arriving at the first decision, in the same consultations in which the external reviewer is required to engage on an external review. Dr Bleby said that this submission applied both to documents in relation to which exemption was claimed by virtue of Part 2 of Schedule 2, and to all other exemptions under the Act, because the agency is entitled to consult in relation to all documents potentially covered by an exemption.
Dr Bleby submitted that the scheme of s 39 is a strong indication of Parliament’s intentions with respect to the extent of the natural justice obligation on an external review.
Dr Bleby argued that the appellant had no interest or right in the administrative law sense to be consulted in relation to the outcome of the consultations with interested persons.
Dr Bleby said that if an agency had a general right to be consulted in respect of third party consultations on an external review, then that right must apply with respect to all such consultation processes. It could not be confined to those applications in relation to which a public interest or governmental interest exemption may arise. It would have to arise when, for example, an exemption on the basis of the unreasonable disclosure of personal affairs was being claimed under clause 6 of Schedule 1, and yet, the agency which made the decision at first instance clearly cannot be said to have the requisite interest in the outcome of an external review dealing only with that exemption.
Dr Bleby submitted that the appellant’s argument was tantamount to characterising the legislative scheme as an adversarial process, with the applicant having an interest in the disclosure of a document, and the agency having an interest in its non-disclosure. Dr Bleby argued that the agency’s true role under the Act was as a steward of the right to gain access to documents, subject to defined exceptions. That stewardship confers no right of, nor interest in, the retention of the documents on the part of the agency itself.
I will now turn to consider the three aspects of the legislative scheme relied upon by Mr Jacobi to found an interest or right in being consulted on an external review by the Department.
1.Asserted “interest” arising from the terms of the Schedule 1 exemptions
Mr Jacobi pointed to the exemptions in Schedule 1 of the Act, which, he said, protect governmental interests and the public interest broadly, as well as the interests of third parties. For example, clause 13 of Schedule 1 exempts documents from release where release would give rise to an action for breach of confidence, ie an action for breach of confidence against the agency. Clauses 1 and 2 are directed to the protection of the functions of the State government itself, and clauses 3 and 5 are directed to the protection of the functions of other governments. Clause 4 concerns the exemption from release of documents where the release of those documents could endanger life, prejudice a fair trial, facilitate an escape from custody or, broadly, prejudice law enforcement methods. The agency’s “interest” Mr Jacobi argued, lies in its obligation to refuse or allow access in appropriate cases.
Dr Bleby disagreed with the assertion on the appellant’s behalf that an agency is doing more than merely making determinations that protect the interests of third parties referred to in those documents. Dr Bleby pointed out that the exemptions in Schedule 1 go beyond governmental interests and the public interest and deal with such issues as personal affairs[7] and the trade secrets of third parties.[8] In relation to these exemptions, a decision not to disclose a document may be made entirely in the interest of a private individual, and may have nothing to do with governmental interests or the public interest.
[7] clause 6
[8] clause 7
Dr Bleby refuted the appellant’s example with respect to clause 13 of Schedule 1, which exempts from disclosure documents which contain matter, the disclosure of which would found an action for breach of confidence. Dr Bleby pointed out that no such action could be founded if an agency discloses a document at the direction of the Ombudsman on an external review. The agency has no interest of its own in the requisite sense in the outcome of the external review in these circumstances. The duty of confidentiality is owed to the third party, and it is that third party who has an interest in the matter in the administrative law sense (and would be consulted by the Ombudsman).
Dr Bleby referred to the exemptions in Schedule 1 for Cabinet documents,[9] Executive Council documents,[10] documents communicated by another government[11] and documents affecting law enforcement and public safety. Dr Bleby refuted the appellant’s argument that these exemptions were in the public interest, and that therefore the agency has an interest in the requisite sense in ensuring that the exemptions are activated where they apply. Dr Bleby argued that the agency’s interest is a very different thing from the public interest, and, further, that none of the exemptions to which reference had been made in this context relate to an interest of the agency making the decision at first instance in the requisite sense. In any event, Dr Bleby said, the public interest was catered for by s 39(9) of the Act, which provides:
If, in determining an application for a review under this section –
(a) the relevant review authority is advised that the determination of the agency was made on grounds of the public interest; and
(b) the Minister administering this Act makes known to the relevant review authority the Minister’s assessment of what the public interest requires in the circumstances of the case subject to the review,
the relevant review authority must, in determining the application, uphold that assessment unless satisfied that there are cogent reasons for not doing so.
[9] clause 1
[10] clause 2
[11] clause 3
Dr Bleby said that considerations such as those in clauses 1 to 4 of Schedule 1 would invariably be apparent to the agency when it was deciding the application at first instance. He said that it was fanciful for it to be suggested that information which could give rise to a claim of public interest immunity could arise for the first time during the Ombudsman’s consultation, and that this is the reason that those documents are not included in Division 2 of Part 3 as documents requiring consultation.
Dr Bleby submitted that the suggestion that the agency’s interest included an interest in being able to concede that information ought to be released should be rejected. Such an “interest” has no practical content and misconceives the agency’s role (which is as a steward of the right to access, subject to exceptions).
In response to the appellant’s submission that the Department’s “interest” arose from its obligation to refuse or allow access in appropriate cases, Dr Bleby submitted that such an interest did not arise, any more than an inferior court has a right to be heard on a merits appeal from one of its decisions to a superior court. The Department simply has an obligation to comply with the Act.
2. Asserted “interest” arising from the onus on the agency in proceedings
Mr Jacobi pointed to the fact that, under the Act, the agency bears an onus in certain proceedings. For example, should an applicant appeal pursuant to s 40(2)(c) from a determination by the Ombudsman on an external review that access is refused, then the agency (not the Ombudsman) will be the respondent to that appeal, and, pursuant to s 48 of the Act, will bear the burden before the Court of establishing that the determination (ie, the claim for exemption) was justified.
Dr Bleby refuted the claim that the “interest” of the agency is reflected by the fact that the agency is a respondent if an applicant for access appeals to the District Court, and that the agency bears a burden of establishing that the determination is justified in such a case. Dr Bleby argued that, rather than establishing an “interest” in the agency, the agency’s role in the appeal is the only practical manner in which the appeal can be conducted, the applicant having no knowledge of what is in the document, access to which has been refused.
Dr Bleby said that the objects of the Act include the promotion of openness in government and accountability of agencies.[12] That is the reason that, if the agency determines that a document is exempt, it has the burden of proof. It is not because the agency has an “interest”.
[12] s 3(1)
The Act provides, in s 39(7):
The agency and the applicant must cooperate in the process proposed by the relevant review authority for the purposes of the conduct of a review under this section (including any attempt of the relevant review authority to effect a settlement between the participants), and must do all such things as are reasonably required to expedite the process.
Mr Jacobi argued that no inference could be drawn that it was expected that the consultation conducted by the Ombudsman would be “unavailable” for this process. Dr Bleby argued that no relevant inference could be drawn from s 39(7) at all. I agree. Section 39(7) does not address the issue before me.
3. Asserted “interest” arising from s 40 of the Act
Mr Jacobi pointed out that the Department has no right of appeal against the decision of an external review in relation to a finding of fact under s 40, which, he argued, reinforces the necessity for it to be in possession of all relevant facts prior to the Ombudsman making his determination in reliance upon those facts. Mr Jacobi relied upon the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah[13] as authority for the proposition that an implication can be drawn from the absence of appeal rights as to the existence and nature of an obligation to accord procedural fairness.
[13] (2001) 206 CLR 57
Dr Bleby pointed out that Miah was a case involving the right of an individual applicant to be accorded procedural fairness. In Miah, the applicant was an applicant for a protection visa. The agency did not inform him of its intention to rely on information concerning changes of circumstance in the applicant’s country of origin. The applicant in Miah had a patent interest and a patent right to be accorded procedural fairness in respect of that information. The issue in Miah was the content of the obligation arising from that interest having regard to the terms of the Migration Act 1958 (Cth), not the existence of the interest. Dr Bleby submitted that the appellant’s reliance on Miah was misconceived, in that it assumed an “interest” and failed to recognise that, whilst questions of appeal rights might affect the content of obligations arising from an interest, they do not confer that interest.
In fact, Dr Bleby argued, the nature of the appeal right in this case supported the respondent’s case. Dr Bleby said that the appellant had assumed that the agency has a general right of appeal against the Ombudsman’s determination, the grounds of which are limited to errors of law. In fact, Dr Bleby argued, the agency’s right of appeal itself is limited to questions of law. That is the agency’s only interest on appeal – having questions of law answered by the Court. The agency has no appeal beyond that because the Act does not confer upon it a general interest in the non-disclosure of documents.
Determination of Question 1
Having regard, in particular, to ss 3 and 3A of the Act, the principal role of the Department for the purposes of the Act is as the custodian of the documents. In this role, the Department is subject to the rights of access conferred by the Act and charged with the function of deciding, upon receipt of an application, whether an exemption applies. The Department’s decisions are subject to merits reviews. I agree with Dr Bleby that the role of the Department under the Act has no element of entitlement to the exclusive retention of any document or of interest in the non-disclosure of any document. An individual agency such as the Department is not charged, under the Act, with the representation of the pubic interest or the interest of the government of the day. In fact, the Minister administering the Act is specifically empowered to assert the public interest. [14]
[14] s 39(9)
As set out in detail above, Mr Jacobi asserted an interest in the Department in the administrative law sense such as would imply an entitlement to a right to be heard on the documents obtained by the Ombudsman in his consultation process as part of the external review. The first basis for this assertion was that it arose from the terms of the Schedule 1 exemptions, which protect government interests and the public interest. I reject this argument. It misconceives the Department’s role under the Act, which is the role of custodian of the documents and objective decision maker as to rights of access. I accept Dr Bleby’s arguments on this point.
The second basis for the assertion of an interest was the role of the agency in a challenge to its decision and the onus which the Act places upon an agency in proceedings by s 48 of the Act, which provides:
In any proceedings concerning a determination made under this Act by an agency, the burden of establishing that the determination is justified lies on the agency.
I reject the notion that the role of an agency in any challenge to its decision and the onus imposed by s 48 implies that the agency has an interest in the outcome of the application for access in the relevant sense. It is true that s 48 is a curious provision, but it seems to me to be intended as a practical measure.
The third basis for the asserted interest was said to arise from s 40 of the Act, which confers upon an agency a right of appeal against the decision of an external review on a question of law only, and not on a question of fact. Persons aggrieved by the determination made on review may appeal without being limited to questions of law. Mr Jacobi argued that the limited nature of the agency’s right of appeal reinforced the necessity for the agency to be in possession of all of the material gathered by the Ombudsman. I disagree. I do not consider that any inference can be drawn from s 40 in support of the existence of an interest in the agency in the relevant sense. The decision in Miah does not support the appellant’s argument on this point. If anything, the limited nature of the agency’s right of appeal from the determination of the Ombudsman indicates a lack of any specific interest in the agency in whether the documents are disclosed or not. The agency is only interested in questions of law.
I do not consider that the Department has an interest in the question of whether access is given to documents under the Act in the administrative law sense. There is no basis for an assertion of an entitlement to a right to be heard in relation to material gathered by the Ombudsman on the external review.
This conclusion is consistent with the scheme of the Act. The Ombudsman is required to take such steps as are reasonably practicable to obtain the views of any interested parties before granting access to a document to which Division 2 of Part 3 of the Act applies, pursuant to s 39(10). The Department does not come within the definition of “interested person” under s 39(1) of the Act. The legislature, having turned its mind to the question of consultation on an external review, did not make provision for a right in the agency to comment on the outcome of the Ombudsman’s consultation with interested persons.
The answer to question 1 is no.
Question 2
Do s 39 and s 48 of the Act forbid the Ombudsman from placing an evidentiary burden on a third party who is consulted by the Ombudsman to justify the claim for an exemption under Schedule 1?
Ground:
The determination of the Ombudsman should be set aside and the matter remitted as the Ombudsman placed the evidentiary burden on the third parties who were consulted to justify the claim for an exemption.The arguments
The Act provides, in s 48:
In any proceedings concerning a determination made under this Act by an agency, the burden of establishing that the determination is justified lies on the agency.
Mr Jacobi pointed to paragraph 48 of the Ombudsman’s reasons, which concluded:
In my view, DPLG has provided only very general arguments and I have not been persuaded by its claims that any matter within the documents is an exempt matter. Therefore, on the strength of DPLG’s arguments, I am not satisfied the documents are exempt documents.
The Ombudsman, in his reasons, goes on to address whether the submissions from the third parties support the exemption from disclosure under the Act. The Ombudsman says: [15]
the arguments have generally been offered as assertions without any significant supporting evidence.
[15] at paragraph 50
Mr Jacobi argued that the Ombudsman, in this statement, and in subsequent paragraphs in his reasons, proceeded from the misconception that the third parties bore an onus to satisfy him of the claims for exemption, when the Act imposed that onus on the Department. Mr Jacobi referred particularly to the Ombudsman’s discussion of clause 7 to illustrate his point.[16] The Ombudsman dealt with what he saw as the underlying premise of some of the submissions in relation to the 30 Year Plan, which was that the release of some of the information in those submissions could signal development intentions, which might then have direct consequences for the would be developer and the intended development. The Ombudsman expressed the view that these concerns would be outweighed by the public interest.
[16] at paragraphs 65-70
Dr Bleby argued that the Ombudsman was saying, in paragraph 48 of his reasons, that the agency had not discharged its burden of proof under s 48 of the Act. Dr Bleby argued that the appellant’s argument that the Ombudsman misunderstood where the onus lay was unsustainable in view of paragraph 48 of the Ombudsman’s reasons. Given that the Ombudsman has an obligation to consult under s 39(10), the Ombudsman must have an obligation to consider the material arising from that consultation, where it is relevant.
Dr Bleby said that the only point of s 48 was to cast the burden of proof onto the agency, and not the applicant. It is clear from the Ombudsman’s reasons that the applicant formed the view that the Department had not discharged its onus. It was proper for the Ombudsman to then go on to consider the views of the third parties, as he did. In no way did this cut across s 48 of the Act.
Dr Bleby also submitted that Mr Jacobi’s criticism of the Ombudsman’s consideration of clause 7 in this context should be rejected. The Ombudsman was entitled to take into account the submissions of third parties and to consider where the public interest lies.
Determination of question 2
I reject Mr Jacobi’s arguments in relation to question 2, and I accept Dr Bleby’s arguments. It is clear from the Ombudsman’s reasons that the Ombudsman placed the burden of proof as to the applicability of exemptions upon the Department, consistent with s 48 of the Act. The Ombudsman did not place an evidentiary burden upon third parties, but recognised, rightly, that those third parties were the source or potential source of relevant information, which the Ombudsman was entitled to consider and discuss. This is consistent with the Act, which requires the Ombudsman to consult with interested parties.[17]
[17] s 39(10)
Question 5 (sic)
Does clause 13(1)(b) of Schedule 1 of the Act and the words “a document is an exempt document (b) if it contains matter obtained in confidence” require the Ombudsman to make a finding of fact as to whether the relevant documents were obtained in confidence by reference to the circumstances of their communication?
Ground:
The determination of the Ombudsman should be set aside and the matter remitted as the Ombudsman did not make a finding of fact that the documents were “obtained in confidence”.The exemption in clause 13(1)(b) of Schedule 1 says:
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
(ii)would, on balance, be contrary to the public interest.
Mr Jacobi submitted that clause 13(1)(a) applies the test in equity for a breach of confidence. Clause 13(1)(b), however, only requires that it be shown that the document was “communicated and received under an express or inferred understanding that [it] would be kept confidential”.[18]
[18] Re Maher and A-G's Department (No. 2) (1985) 7 ALD 731 at 737 see also Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 1221
Mr Jacobi argued that the Ombudsman’s reasons at paragraphs 14, and 74 to 77, and the consultation letter, suggest that the Ombudsman did not discriminate between the requirements under clause 13(1)(a) and 13(1)(b). In particular, Mr Jacobi complained that the Ombudsman did not, in his reasons, address whether the information in the document was obtained in confidence separately from a consideration of whether it would found an action in breach of confidence.
Mr Jacobi argued that those submissions provided to the Department in relation to the Development Act 1993 process which had the box ticked on the coversheet to indicate that the document was provided on a confidential basis were “obtained in confidence” within the meaning of clause 13(1)(b), and, by implication, no further enquiry was required.
Dr Bleby submitted that the Ombudsman did consider the grounds in clause 13(1)(a) separately from clause 13(1)(b) at paragraphs 42 – 46 and, after considering the words of Judge Lunn in Ipex Information Technology Group Pty Ltd v The Department of Information Technology Services South Australia,[19] the Ombudsman said:[20]
Whilst Ipex related to a particular tender process, in my view Judge Lunn’s comments are relevant not only to tender processes in general, but also to other commercial enterprises and the consultation processes involved in government policy and legislation. In this case, I do not agree that DPLG can guarantee confidentiality, and I am not persuaded that releasing submissions in cases where the party has sought confidentiality will prejudice the future supply of such information to the government. Whilst many parties ticked the confidentiality box because it was offered, I suspect that many of them would have made submissions even if the confidentiality box was absent.
[19] (1997) 192 LSJS 54
[20] at paragraph 45
Dr Bleby referred to paragraph 75 of the Ombudsman’s reasons, in which he said:
Factually, I accept that the submissions were given and received in circumstances considered by the parties and DPLG to be confidential. However, I am not satisfied that the intention of the parties is sufficient to show that ‘the information was received in such circumstances as to import an obligation of confidence’. In my view, some examination of the nature of the information in question is required before deciding whether an obligation of confidence is imported, and it is an objective ‘reasonable person’ test….I am of the view that DPLG unnecessarily excluded from consideration the wider public in determining what the reasonable person would think, instead giving consideration only to the views of a particular stakeholder industry. Having considered the issue carefully, and acknowledging that my views have the effect of reversing a purported promise by DPLG, I am not satisfied that this is the type of information intended to give rise to an obligation of confidence.
Dr Bleby said that the Ombudsman accepted that the submissions were given and received in circumstances which were confidential. He asked the question relevant to clause 13(1)(b), and then went on to consider clause 13(1)(a).
Dr Bleby argued that the appellant’s argument was in error in two respects. Firstly, it invites the Court to draw a conclusion of fact (or part fact, part law), namely that the information was obtained in confidence, which is beyond the scope of the appellant’s right of appeal. Secondly, Dr Bleby pointed to paragraph 42 of the Ombudsman’s reasons, in which he said:
I disagree the ‘DPLG has an obligation to make provision for submissions provided by individuals and corporate entities to have their submissions kept confidential where requested’. Rather, I am of the view that DPLG cannot purport to give an assurance that any and all information provided to it will be kept secret, and I consider it unfortunate that many of the parties who made submissions on the Draft 30 Year Plan relied upon what they considered an assurance by a government agency. That is not to say that all such information provided will be released to the public if it is requested and in certain circumstance it may be appropriate not to release particular information held by the government concerning the affairs of commercial or other entities. However, this does not give rise to a blanket claim of confidentiality.
Determination of question 5
In considering whether the exemption in Clause 13(1)(b) of Schedule 1 to the Act applies to a particular document, it is necessary for the Ombudsman to decide whether that document ‘contains matter obtained in confidence’. The circumstances of the communication of the document to the Department will be relevant to that decision. This is plainly an issue which the Ombudsman considered. No error of law has been demonstrated on the basis of question 5.
Question 6
Has the Ombudsman applied a test higher than “could (or might) reasonably be expected” in the sense of not irrational, absurd or ridiculous in his determination relating to clauses 4(1), 7(1) and 13(1)(b)?
Ground:
The determination of the Ombudsman should be set aside and the matter remitted as the Ombudsman in addressing the exemptions in clauses 4(1), 7(1) and 13(1) places a higher standard than that required by the Act.In support of this ground of appeal, Mr Jacobi submitted that the Full Court of the Federal Court, in Attorney-General’s Department v Cockroft,[21] held, in the context of the Freedom of Information Act 1982 (Cth), that the expression “reasonably be expected to prejudice” was to be given its ordinary meaning. An assessment of factors on the balance of probabilities was not required by the expression. What was required was a judgment as to what was reasonable, as distinct from something that was irrational, absurd or ridiculous.
[21] (1986) 64 ALR 97
Mr Jacobi referred to the decision of Judge Lunn of this Court in Ipex[22]. Judge Lunn said, at page 10:
As to the meaning of “could reasonably be expected” in (c)(ii) the Commonwealth Administrative Appeals Tribunal has said in respect of a similar provision in Re Actors Equity Association of Australia (No 2) (1985) 7 ALD 584 at 590
…we are in the field of predictive opinion. The question is whether there is a reasonable expectation of adverse effects. It is to that question that the witness’s evidence had to be directed, and their assertions are incapable of proof in the ordinary way. What there must be is a foundation for a finding that there is an expectation of adverse effect that is not fanciful, imaginary or contrived, but rather is reasonable, that is to say based on reason, namely ‘agreeable to reason: not irrational, absurd or ridiculous’….This is not very much to ask of evidence of an expectation of an adverse effect on a business.
[22] n. 19
Mr Jacobi referred to the reasons of the Ombudsman in relation to clause 4 of Schedule 1 of the Act,[23] and argued that the Ombudsman suggests that more than “subjective evidence” or a “mere perception” is required in order for a document to be exempt under clause 4, and that the information provided by the people making the submissions was insufficient to bring those submissions under the clause 4 exemption.
[23] paragraphs 16 and 17
Dr Bleby pointed out, correctly, that the Ombudsman, in paragraph 16 of his reasons, says that “sufficient evidence” (not “subjective evidence”) is required before the factors in clause 4 can be found to exist:
However, for a document to be exempt under clause 4(1)(a), something more than the subjective test adopted by DPLG is required. Sufficient evidence is required before it can be concluded that the disclosure of a document could reasonably be expected to endanger the life or physical safety of any person. What constitutes sufficient evidence will depend case by case, but the mere perception of an interested party, without more, is insufficient.
Dr Bleby submitted that this is a correct statement of principle.
Mr Jacobi said, in relation to the business affairs exemption,[24] that the Ombudsman had expressed the view that “feasibility of detriment” is not sufficient to come within the exemption, rather “a reasonable expectation” is required.[25]
[24] clause 7 Schedule 1
[25] Ombudsman's reasons paragraph 56
Dr Bleby referred to paragraph 56 of the Ombudsman’s reasons, in which the Ombudsman said:
In general, I have not been convinced that the release of the submissions could reasonably be expected to lead to the parties suffering any particular detriment. I acknowledge the feasibility of detriment, but feasibility is not enough – the test is one of reasonable expectation. To the extent that the planning and design processes outlined in the submissions might have commercial value, I remain unconvinced that releasing such information could reasonably be expected to destroy or diminish the commercial value of the information. To the extent that other business affairs are involved, I am unconvinced that release could reasonably be expected to have an adverse effect on those affairs, or to prejudice the future supply of such information to the government of DPLG.
Dr Bleby submitted that this is precisely what is required by clause 7(1)(b)(i)(A).
Mr Jacobi argued that the Ombudsman’s approach failed to pay due regard to the difficulty of demonstrating that the risk of disclosure would result in the non-provision of the information, other than by the assertion of the party providing the information that this is so. The assertions of those parties were not given the appropriate weight.
Determination of question 6
It is plain from the Ombudsman’s reasons that he was aware of the “could (or might) reasonably be expected” component of clauses 4(1), 7(1) and 13(1)(b) of Schedule 1. In paragraph 16 of those reasons, quoted above, I take the Ombudsman to be saying no more than that a reasonable expectation, in the particular circumstances before him, must be based upon something more than an apprehension alone. This is not inconsistent with the explanation of the phrase in Cockroft[26] and Ipex[27]. The Ombudsman has not imposed an impermissible test. He has simply explored what, in the circumstances, might be required as the “foundation” of the expectation.
[26] n. 21
[27] n. 19
Question 7
Whether on a proper construction of clause 13(1)(b) and the words “would on balance be contrary to the public interest” the Ombudsman was required to separately address the “public interest” in the disclosure of information in the context of the disclosure of confidential information?
Grounds:
The determination of the Ombudsman should be set aside and the matter remitted as the Ombudsman did not separately address the “public interest” under clause 13(1) by reference to the considerations arising under that sub-clause.In relation to clause 13, Mr Jacobi complained that the Ombudsman had omitted to give separate consideration to the public interest test in that clause, and, yet, for example, what constitutes the public interest in relation to confidential documents must differ from what constitutes the public interest documents claimed to affect business affairs under clause 7 of Schedule 1.
Dr Bleby said that the Ombudsman considered the public interest test, in particular at paragraphs 66 to 70 of his reasons, and applied that analysis to clause 13 at paragraphs 76 to 77 of his reasons. Dr Bleby argued that the fact that the Ombudsman did not analyse public interest in the context of clause 13 separately is of no consequence. It was implicit in the Ombudsman’s approach that his reasoning with respect to public interest was applicable to clause 13(1).
Dr Bleby argued that Mr Jacobi’s complaint that the Ombudsman had omitted to distinguish the meaning of public interest in the context of each of the different exemptions was mischievous. Dr Bleby said that the Ombudsman should be taken to have considered that in this instance the public interest considerations which pertained to one exemption also pertained to the other. Thus, separate consideration was not required.
Determination of question 7
The Ombudsman, in his reasons, expressly considered the public interest in the context of clause 13(1)(b). At paragraph 76 of his reasons, the Ombudsman referred back to his discussion of the public interest earlier in his reasons, and then proceeded to apply his analysis of what was required in a consideration of public interest to the exemption in clause 13(1)(b). The answer to question 7 is that the Ombudsman did, in fact, separately address the “public interest” in the context of the disclosure of confidential information. He may not have done so as clearly as the appellant may have wished, or in the order that another author may have adopted, but that does not amount to an error of law.
Question 8
Is the Ombudsman in conducting an external review under section 39 of the Act under an obligation to consider exemptions not earlier claimed by an agency, and, in that event, was the Ombudsman obliged to consider the exemption in clause 12 of Schedule 1 of the Act?
Ground:
The determination of the Ombudsman should be set aside and the matter remitted as the Ombudsman does not address the applicability of clause 12 and it was necessary to consider the application of that exemption before making his determination.Mr Jacobi argued that the Ombudsman should have considered whether a further exemption, in particular clause 12, was applicable. Mr Jacobi said that the Ombudsman’s obligation was to consider whether the documents were exempt, and that he was thus obliged to consider all possible exemptions. Mr Jacobi said that the Ombudsman’s powers on a review are constrained by s 39, and that, pursuant to s 39(12) he cannot grant access if he is satisfied that the document is an exempt document. Mr Jacobi said that this means that the Ombudsman has no discretion to release a document which is exempt. In determining whether a document was exempt, the Ombudsman must consider all possible exemptions, and was not confined to those relied upon by the agency. Mr Jacobi pointed out that the Ombudsman had, in fact, considered exemptions beyond those relied upon by the Department. However, he failed to consider clause 12 of Schedule 1, which provides that a document is exempt if:
It contains matter the disclosure of which would constitute an offence against the Act.
Mr Jacobi thought that clause 12 of Schedule 1 might apply because the documents the subject of this matter were generated in the course of a consultation process pursuant to the Development Act 1993, and s 102 of that Act provides:
S 102—Confidential information
(1) A person performing any function under this Act must not use confidential information gained by virtue of his or her official position for the purpose of securing a private benefit for himself or herself personally or for some other person.
Penalty: Division 5 fine or division 5 imprisonment.
(2) A person performing any function under this Act must not intentionally disclose confidential information gained by virtue of his or her official position unless—
(a)the disclosure is necessary for the proper performance of that function; or
(b) the disclosure is made to another who is also performing a function under this Act; or
(c)the disclosure is made with the consent of the person who furnished the information or to whom the information relates; or
(d)the disclosure is authorised or required under any other Act or law; or
(e)the disclosure is authorised or required by a court or tribunal constituted by law; or
(f)the disclosure is authorised by the regulations.
Penalty: Division 5 fine or division 5 imprisonment.
Mr Jacobi submitted that it was an error of law for the Ombudsman to omit to consider this provision. He acknowledged that this submission was contrary to the decision of Judge Lee in Department of Premier and Cabinet v Redford,[28] which was that the Ombudsman did not have an obligation to consider exemptions which have not been claimed, but had a discretion to do so.
[28] (2005) 240 LSJS 171
Dr Bleby argued that the decision in Redford was correct. The lack of power in s 39(12), he argued, depends upon the existence of the review authority’s state of satisfaction; it does not simply depend upon the document being an exempt document.
Dr Bleby further argued that, even if the decision in Redford was not correct, there are two further reasons why this ground cannot succeed. The first is that failure to refer to potential exemptions not raised by the agency does not constitute evidence that the exemption was not considered. The Ombudsman need not give reasons.[29] There cannot be an obligation on the Ombudsman to give reasons for not applying exemptions which have not been claimed. The failure to discuss a matter does not mean that it was overlooked. The second reason is that clause 12 of Schedule 1 cannot possibly apply, because of the exception in s 102(2)(e), quoted above.
[29] s 39(14)
Determination of question 8
I accept Dr Bleby’s arguments in relation to question 8. There has been no error of law on this ground.
Conclusion
This is an appeal by an agency on questions of law against the determination of the Ombudsman on an external review of a decision of the Department, by its delegate. The asserted errors of law in the Ombudsman’s reasons for determination have not been made out by the appellant. This appeal has not involved an examination of the merits of the Ombudsman’s decision, and nor could it, pursuant to s 40(1) of the Act.
As noted above, there will be an order granting permission to appeal. The appeal will be dismissed.
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