Department of Social Security v Dyrenfurth, E.B

[1988] FCA 227

CATCBWORDS

FREEDOM OF INFORHATION - appeal from Administrative Appeals Tribunal - request for access - comparative and indivldual assessments of applicants for public service appointment -

t whether "exempt documents" within s.4O(l)(c) or s.41(1)

Freedom of Information Act 1982 - whether such documents may

contain "information relating to the personal affairs of any

person" - effect of disclosure of documents of a given class

as contributing to "a substantial	adverse effect on the
management or assessment of personnel" within s.4O(l)(c)	-
whether a question of	law.

Freedom of Information Act 1982 ss.40(l)(c), 41(1)

DEPARTMENT OF SOCIAL SECURITY	V ERIC BERNARD DYRENFURTH
No VG 109 of 1987
Sweeney, Keely and Ryan JJ S Hay 1988 Melbourne
IN TEE	?GDBRAL COURT O? AUSTRALIA

VICTORIA DISTRICT REGISTRY No VG 109 of 1987

)

GENERAL DIVISION

On appeal from the General
Administrative Division of
the Administrative Appeals

Tribunal

BETWEEN: DEPARTMENT OF SOCIAL

SECURITY

(Applicant)

AND :  - ERIC BERNARD DYRENFURTH

(Respondent)

Coram: Sweeney, Reely and Ryan JJ
Date: 5 May 1988

Place: Melbourne

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.     The appeal be allowed.

2. The decision of the General Division the of

Administrative Appeals Tribunal given on 15 April 1987 be set aside and the application be remitted to the Administrative Appeals Tribunal to be heard and decided according to law.

AND FURTEER ORDERS BY CONSENT THAT:

3.     The applicant pay the respondent's costs of the appeal.

NOTg: Settlement and entry of orders is dealt with in 0.36 of

l the Federal Court R u l e s .

i

IN THE: m E R A L COURT O? AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	NO VG 109 Of 1987

1

GENERAL DIVISION

On appeal from the General

Administrative Division of
the Administrative Appeals

Tribunal

BETWEEN: DEPARTMENT OF SOCIAL

SECURITY

l

(Applicant)

- AND : ERIC BERNARD DYRENFURTH

(Respondent)

Coram:	Sweeney, Keely and Ryan JJ
-	Date: S May 1988
Place: Melbourne

REASONS FOR JUDGMENT

THE COURT:	This is an appeal, on a question	of law, from the
Administrative Appeals	Tribunal.	In the decision appealed

from, the Tribunal rejected a claim advanced on behalf of the

Department of Social Security ("the Department") that certain

documents were exempt under the Freedom of Information Act

1982 ("the F01 Act") and ordered that those documents be

released to the respondent, Mr Dyrenfurth.

A position in the Senior Executive Service of the

Australian Public Service ("the	A.P.S.")	had	been created
within	the	Department	and designated "Senior Executive

Service, Level 1, Benefits Practices and Investigations

Branch, !!elbourne". Applications for appointment to that

position were	invited	by advertisements in the national
Press.	It appears that seven applications were	received, of
which three were later withdrawn.	@!c	Dyrenfurth was one of

the remaining applicants, and was himself a permanent officer

of the A.P.S. a8 were, at that time, the other three

remaining applicant..

A relection panel met to review the applications. It

decided to interview two of the four remaining applicants. Mr Dyrenfurth was one of the two applicants who were not

interviewed.	In the result the panel decided that none of
the applicants should	be appointed, and apparently resolved

that the position should not be re-advertised for the

time being. Thereupon MC Dyrcnfurth requested access to the

following papers under the ?OI Act:-

". All papers, reports etc prepared by or for the Selection Committee in connection with the

selection process for the abovementioned

position.	If not encompassed by the above,
any reports written	by referees in connection

with the process, together with any records of

conversation with referees.

. All papers prepared for or by the Public

Servfce Board and its officers in connection with this selection process, which are held by your Department.

. All papers held in connection with the

decision not to readvertise the position	for
the present."

By the time when that request came before the

~drinistrative Appeals Tribunal, the ambit of MC Dyrenfurth's

request had been narrowed	80 that the Tribunal was able to
identify, as follows, the documents with which	it had to
deal :	-

" (i) A comparative assessment of

(a)	the person who, as with the applicant, was not interviewed, and of
(b) the two persons who were	interviewed.

These form part of a document which has been

furnished to the applicant.

, (ii) Individual assessments of the two persons

who were interviewed. Each of these is

claimed to be wholly exempt."

The appeal calls into question the interpretation by the Administrative Appeals Tribunal of two sections of the

PO1 Act. The first, in the order taken by counsel's

submissions, is s.41(1) which provides:-

"A document is an exempt document if its

disclosure under this Act would involve the
unreasonable disclosure of information relating
to the personal affairs of any person (including

a deceased person)."

The way in which the Tribunal was persuaded to apply

s.41(1) to the documents in question in this case has been
stated in the	following paragraph of the Tribunal's
decision:-

"19. Would disclosure of the documents in

question amount to an unreasonable disclosure of

the personal affairs of the persons in auestion? The -Tribunal's decision in Re Wisiman and Department of Transport (1985) 4 M R 83 contains

an attractive exposition, based on Tribunal

decisions, of the view that information relating

to a person's performance of his or her

employment may constitute information	relatingto
that person's personal affairs within	s.41(1) of

the ?OI Act. The Doint has however been decided ~ ~~~

othorrisu by Boaurbnt J in the lbderal Court in

Young v. Wicks (No. Qld G88 of 1985, 30 May 1986,

On page 8 of his judgment Beaumont

wrTr t 0 r Y L a : **e roference to "personal	affairs. of a person was, I think, intended to
have its ordinary dictionary meaning, that is to
say, to refer to matters of private concern to an
individual (see Re Williams and the Registrar of
the Iedoral Court of Australia (1985) 8 ALD 219
at P.221)'- This ruling is binding on this
Tribunal. It follows that s.41(1) offers no
ground of exumption in this case. TO use H i s EOnOUf'B expression in Young v. wicks at p.8 : 'Applying that test to the present material, it
is not possible to Identify any document as one

I which contains information referring to matters

of private concern to the applicant as an

individual'."

In Young v Wicks, Beaumont J., exercising the

jurisdiction of this Court under the Administrative Decisions

(Judicial Review) Act, had to consider whether information in

certain documonts in the custody of the Department	of
Aviation which pertained to the applicant	in her capacity as

a licensed professional pilot and senior pilot of the

Ministerial Air Unit of the Queensland Government was exempt

from disclosure by virtue of s.41(1)	of the F01 Act as
relating to the personal affairs of the applicant.	It is
convenient to set out in full the paragraph from his	Honour's

judgment from	which the Tribunal	quoted in the extract which
we have just	reproduced. After reciting that	he had read the

documents described in what was called "the second

confidential appendix", his Honour observed (at p.8):-

. In my opinion, none of the subject documents

contain information relating	to the 'personal
affair@* of the applicant within the	meaning of

8 .41 (1 ) of tho Act. The reference to 'personal affairs' of a person was, I think, intended to have its ordinary dictionary meaning, that is to

say, to refor to letters of private concern to an

individual (see Re Williams	and the
the Federal Court	of Australia (198
at P.221).	Applying that test .to the present

material, it	is not possible	to identify any
document am one which	contains	information

referring to ratters of private concern to the applicant as an individual: each of the

d o c w n t s rulate to the administration by the

DepattHnt of the Air Navigation Act 1920 and the

Air Navigation Regulations thereunder. The

applicant, it i S true, is the subject of the

docurentation but the documents are concerned
exclusively with the public regulation of air
navigation. Thu result is that the documents

havu a public, rather than a private, character."

Re Williams and Registrar of the rederal Court of

Australia (1985) 8 A.L.D. 219; 3 A.A.R. 529 which was there

cited by Beaumont J. was another decision of his Honour, on

that occasion sitting as a Presidential Member	of	the
Adminirtrative Appeals	Tribunal. The facts of	that case were
closer to those	in the present case as	it concerned an

application for access under the ?OI Act to papers	related to
selection to fill an administrative position	in the Registry
of this Court.	The papers in isrue were described by his

Honour as follows, ( 8 A.L.D. at p. 221; 3 A.A.R. at p. 531):-

"The documents for which exemption is claimed were

produced to the Tribunal on a confidential basis,

an order in that regard having been made pursuant

to 6 3 5 ( 2 ) of the Administrative Appeals Tribunal

Act 1975. - Document D16 i S an interview report in

respect of MK Curtis (the successful applicant).

It contains an interview assessrent which deals with, inter alia, the candidate's work history, knowledge of duties, potential and motivation. Comments of members of the selection committee

and of two referees on these matters are set	out.
There comments are	confined to an evaluation of
the candidate'.	work capacity and performance.
None the	less, the observations made are specific
in	their detail and could conceivably cause a

measure of embarrassment to thosu concerned.

Document D28 is the selection committee's

comparative assessment of the first four

, ' . . r	1
I
-	- 6 -

candidates. Again, the observations made in this

connuction do not travel beyond an assessment of

the work capacity and performance of those

candidates8 again, it is conceivable that thu

disclosure of some of the observations made	could
embarrass a person given to sensitivity	in this

typr of situ8tion. Document D19 i8 thu ruport of

the selection committee. The only part of the

report to which access was refused is the

statement, in the ordor of merit, of the names

appearing after Hr Curtis."

It was against that background that Beaumont J . went on

to ob8erve (also in 8 A.L.D. at p. 221; 3 A.A.R. at p. 531):-

I

"In my opinion, the reference in the Act to the 'personal affairs' of a person was intended to have its ordinary dictionary meaning, that is to

say, to refer to	ratters of private concern	to an
individual."

It was contended on behalf of the applicant that the

interpretation there given by Eeaumont J. to the phrase

'pursonal affairs of any person" was too narrow.

Accordingly, so it was argued, in applying, as it considered it was bound to do, that interpretation as restated in Younq

v wicks the Tribunal in the present case fell into error.

MC Tracey, for the applicant, sought to demonstrate

that error by referring, first, to Re Wiseman and Department
of Tran8pOrt (1985) 4 A.A.R.	83 in which the Administrative
Appeal8 Tribunal was concerned with a request under	6.48 of
the ?OI Act which affords a facility to a claimant	to seek

amundmunt of a record in a document of an agency of

'information relating to his personal affairs". Section 48

is in these terms:-

.* . ..

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m Where a person (in this section referred

to as the 'claimant,) who is an Australian citizen, orwhose continued presence in Australia

is not subject to any limitation as to time

impos.6 by law, claims that a document of an

agency or an official document	of a Minister to
which access has been	provided to the claimant
under this Act contains information	relating to
his personal affairs-

(a) that is incomplete, incorrect, out of date

or misleading; and

(b)	that has been used, is being used or is
available for use by the agency or

Minister for an administrative purpose,

I

he may request the agency or Minister to amend

the record of that information kept	by the agency
or Minister.'
At p.07 of the	report in Wiseman's Case, several

previous decisions	under ?OI legislation were examined, each
of which was described as having "concerned a	request by an
employee of an agency to amend the	record of information

contained in the employee's personal file held in the files

of the agency as employer". The Tribunal then noted that:-

"In none of these cases did the Tribunal or court

consider as a separate question whether the

record sought by the applicant to be amended

contained 'information relating to his personal

affairs'. It appears to have been assumed that

this was so: possibly on the basis that

information on an employee's personal file with

his employer must inevitably relate to the

employee's personal affairs: or possibly because

in each	case the information contained in the
documents	was closely concerned with the

applicant as a person."

Rowever, a similar assumption could not be made in

Wiseun.s Case, because, as the Tribunal observed, again	at
p.87:-

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"l9008 of the other documents before ua in these

applications is concerned with Mr Wiseman as an employee, past, present or potential, of either of the respondents. Accordingly, it is necessary

for U . to conrider the meaning of the expression

'information relating to his personal	affairs' in
a wider context."

The conclusion reached by the Tribunal, after giving the phrase that conrideration, appears	at p.91 in these
terms:-

!

"We consider, consistently with the earlier cases

on 8 48, that the expression 'information

relating to his personal	affairs' in that section
extends to include information relating to	the
applicant's work performance and capacity	for

emplopent whether or not the respondent agency

is an employer of the applicant. In the

circumstancer of the present case, the Department

of Transport ia certainly a potential employer of

a person with	Hr Wiseman's qualifications, and	it
would appear that the samu is true	of	the
Department of Communications,	which	employs

marine radio surveyors. But in any case, as some of the material before UP indicates, the views which the officers of those respondents form as

to the performance and capacity of a person with

those qualifications may affect that	person's
employability by others."
Reference was made also to another decision	of the

Tribunal constituted by M C Deputy President Nicholeon in

Corbett v Aurtralian Federal Police (Decision number 2714

unreported 30 Nay 1986) where it was observed, at p.11:-

'The information in issue here involves an

asses+rant of the manner in which the Applicant

has carried out the duties of his employment. True it is that it is not a minute paper on the Applicant's work hiatory nor does it appear on a

file relating to the Applicant's employment.

SlOW8Ver, the R88pOndent directed attention to	RC
Williams and Regiatrar of the Federal Court

Xustralia ( I O & l 8 AL D P - W ere

was said b y Beauront J.:

,. . '..

i

- 9 -

*In ay opinion, the reference in the Act

to the "personal affairs" of a person was

intended to have it6	ordinary dictionary
meaning, that	is to say, to refer to

matters of private concern to an

individual ... ordinarily, information as

to the work capacity and performance of a

perron is not private in that sense. It

is something observed by others and commonly discussed by those involved in

that work. Ordinarily, information as to

a person's vocational competence is not something which is treated as confidential. Prima facie at least, it is not part of his or her "personal affairs".'

That statement ham not found favour in subsequent

decisions and is inconsistent with earlier

decisions - see Wiseman (supra, paras. 46 and 50)

where the exprersion 'information relating to his personal affairs' in section 48 was held to extend to include information relating to the Applicant's work performance and capacity for employment whether or not the Respondent agency

is the employer of the Applicant. See also Resch

(rupra, para. 18). I acceut as correct the vicws on -this- matter in Wireian and Re Resch and

rtmcnt of veterans' Affairs (Decision NO

/l20 11 April 1986). It is accordinsly

unnecessary to decide whether in fact fhe information in issue here is information 'as to the work capacity and performance' of the Applicant."

It was argued that, consistently with the approach

taken by a Full Court	of this Court in The News Corporation
Ltd v National Companies and Securities Commission (1984) 1
F.C.R.	64, the 6ame width should be accorded to the phrase

"personal affairs" in s.41(1) of the F01 Act as it has

received in the application of	8.48, and other sections in
which it appears in that Act.	Accordingly, this Court was

invited to construe "information relating to ... personal

affairs" in s.41(1) in the same way as it was construed in

Wisem's Case, i.e. as extending to assesrrents of the

I

i

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capacity or previous work performance of an applicant for

appointment within the A.P.S.

In our view, it cannot be. laid down by way of

definition that an assessment of the capacity or previous
work performance of an employee or prospective employee

necessarily contains "information relating to the personal

affairs" of that person. Equally, however, it is not

I perrissiblo to construe the phrase, as the Tribunal appears

to have done, as being incapable of application to

information contained in an assessment of capacity or work performance. We do not understand Beaumont J. to have adopted, in Young v Wick8 or Re Williams, any such rigidly

exclusionary interpretation of the phrase. In the former

case, h i s Bonour, on an examination of the documents held by

the D8partBent of Aviation, found, as a matter of fact, that

none of them contained information "referring	to matters of
private concern to the applicant as an individualn. That	he
found it necerrary to undertake such an examination	at all

arguer rtrongly against the view that his Honour considered

that the departmental documents in that case were, by

definition, incapable of containing "information relating	to
the personal affairs of the applicant".

Likewise, in Willians Case, Beaumont J. was at pains to disavow any attempt to define what the phrase necessarily excluded. Be observed in the sentence immediately after that

quoted by the Tribunal in the present case	(8 A.L.D. at p.
221; 3 A.A.R.	at p. 531):-

* . 5 . . .

- 11 - I

"It is not necessary to attempt an exhaustive

definition of the phrase. It will suffice, for

present purposes, to say thut, ordinarily,

information a8 to the work capacity and

performance of a person is not private in that sense. It is something observed by others and

commonly discu8sed by those involved	in that
work.	Ordinaril , information as to a person's

vocationa + compe ence is not something which is

treated as confidential. Prima facie-at least, it is not part of him or her 'personal affairs'."

The repetition of the word "ordinarily" and the

qualification "prima facie at least" to which we have added

I

emphasis, appearing as they do in such close proximity to

each other, should be taken as an acknowledgement by Beaumont

J. that some assessments of work capacity and performance or

vocational competence, exceptional though his Honour thought

they might be, would contain information relating	to the
personal affairs of their subjects.

Like h i s Honour, we consider it inappropriate to

attempt to describe, even illustratively, what may be

"information relating to the personal affairs	of any person".
Some guidance, although	by no means exhaustive, is afforded

by the observation of St John J. in The News Corporation Ltd

v National Companies and Securities Commission (supra)	at 79,
that:-

"It is clear, in my view, that 'personal' and

'bu8iness' affairs were different in the mind of

the draftsman. A corporation, brought into

existence for business, can have business

affairs. So too can real persons but, in

addition, affairs relating to family and marital

relationships, health or health, ill

relationships with and emotional ties with other
real people."

I . . i

c , . .

- 12 -

At p- 73 of the same report Bowen C.J. and Fisher J

said:-

"We agree for those reasons with the opinion of St. John J. that the expression 'personal

affairs' in par. 12(2)(a) refers only to the

affairs of a natural person and not to the

affairs of a corporation."

It is sufficient for present purposes to indicate our view that information relating to the personal affairs of a

!

person such as information concerning his or her state of health, the nature or condition of any marital or other relationship, domestic responsibilities or financial obligations may legitimately be regarded as affecting the work performance, capacity or suitability for appointment or

promotion of that person. In those circumstances, it is

conceivable that an assessment of work performance, capacity

or suitability for appointment or promotion might contain

such information. If it did, it would be necessary to

consider whether disclosure of that information would be

unreasonable so as to render the assessment an exempt

document by virtue of 6.41(1) of the PO1 Act.

The other provision of the F01 Act to which attention

was directed by the notice	of appeal and the submissions of
counsel in this	matter is 6.40(l)(c) which provides:-

"Subject to sub-section ( 2 1 , a document is an

exempt document if its disclosure under this Act

would, or could reasonably be expected to-

(c) have a substantial adverse effect on the

management or assessment of personnel	by
the Commonwealth	or by an agency;"

In applying that paragraph of the F01 Act to the facts

of thi8 case, the Tribunal obaerved in paragraphs 13 and 14

of its decision:-

"It reems to US that disclosure o f the kind of

matter contained within	(i) and (ii of paragraph
6 above could in broad terms reasonably	be
expected to have the following	effects:

We would expect that disclosure of

individual personal assessments or of

comparative asseasments could in some

circumstances lead to difficulties between those concerned, in particular if those persona were arsociated with one another

in their employment.

It would be quite possible for the effects mentioned in (a) above to extend further to the extent that they could reasonably be expected to have an effect on the

proper and efficient conduct of the

operations of the	agency.
While	the Tribunal has again and again
declined to	be persuaded by the so-called

'candour and frankness' argument in relation to the giving of advice on

matters of policy, we are nevertheless

satisfied that in the sensitive area of assessment of personnel (which we would think is in truth at least in part a component of the management of personnel although it is in s.40(l)(c) expressed as an alternative) there is ground for

considering that there would be	substantially less candour and frankness
in written reports, assessments and references if it were known that there was
a real likelihood that such reports etc
were not confidential and may have to be disclosed. It is we think notorious that open references are given with a reduced franknerr, and at a level of generality,
that are inimical to the placing of much reliance upon them. The result could be
either that the relevant documentation
would be of reduced reliability and value,
or that greater atrers would have to be placed on oral reports, or both. In any event the consequences for good administration in the area of management and/or assessment of personnel would be aerious indeed. At any . level of
appointments, assessment of candidates for
appointment must be us honest and
forthright as possible if the right decisions are to be made, and it may be correct to say that the higher the level
of the office the truer this will be.

( d ) It is probably also true to say, although

we would not lay too much stress on the

point, that disclosure to the extent here

sought would in general terms lead to

persons who are unlikely to be successful
being less likely to be inclined to apply
for appointment.

The contention that the giving of access to the

document8 here remaining in question would have

the effects contemplated by s.40(l)(c) is thus	a
very tempting ane.	The essential point that we
have to make however	is that while at various

points of the legislation the opportunity has

been taken to confer exemption upon various

classes of documents (as, for instance, Cabinet

document8 ( 8 . 3 4 ) and Executive Council documents

(s.35)), other exemptions depend for their

establishment upon the consequences flowing from disclosure of the information contained in the particular document access to which is sought. Such is the care with s . 4 0 ( 1 ) . In such cases it

is therofore necessary to have regard to the

contents of each document in question. The

position is the same as it is in relation to

s.36: See DaraaraDh 39 of the Reasons f o r Decision in -Re iewiter and Department of Prime

Minister and Cabinet (1 / and 23 December l=

Decision No.3131) . Thus while it may be easy to

conclude that in the present case thGre may well be some undesirable effects arising from

disclosure, it is a big step to conclude that

discloaure of the particular information	in these
particular documentr could	reasonably be expected

to have a substantial adverse effect on the

proper and efficient conduct of the operations	of
the agency.	The difficulties in establishing

such a case were said by Beaumont J in ~e

Williams and R strar of the Federal Court

- ALD

‘formidabie. If we had been amroachino the .I- ~

present matter	in, as it were, a vacuum, welight
have been tempted to think that	the difficulties
were not	SO forridable. %ut the fact is that the

practice of the respondent agency is stated to be

what we might respectfully call a generous	one.
We have	already set out the agency’s guidelines.
It is perfectly true that	in general terms this
Tribunal is not bound	by an agency’s guidelines,

. . . . . .

- 15 -

but that is not the point here.	We are uncertain
to what extent they are applied (see	Tr.26)' but
they exist as a fact, and their eqistence	in that

form seems to	us to undermine the suggestion	of
mbst8ntial adverse	consequence.	mrther,

although we have some reservations as to the

corunt mad. about the particular decision

referred to in the citation therefrom in

paragra h 8 above (which we presume to be Re

Scrivan P ch and Public Service Board (1984) 1

8 / ) w e agree with th e basic thrust of what is

said in the guidelines and in particular with its insistence that 'it is not possible to claim exemption for a document only for the reason that it falls within a class of documents', and with

decision-maker to show how disclosure of a	the statement that 'It is ... incumbent on the
particular selection report to a particular
applicant could reasonably be expected to have a
substantial adverse effect'."
The question of law which that	part of the Tribunal's

reasons was said to raise was identified as follows by an

amendment to the notice of appeal which the applicant was

permitted to make during the hearing before this Court:-

"2. Whether the Tribunal erred in holding that

the exemption provided for in section

40(l)(c) of the Freedom of Information Act

can only apply Where disclosure of the

particular information in the particular

documents under consideration can reasonably

be expected to have the substantial adverse

effect referred to in that provision."

It was contended on behalf of the applicant that the

Tribunal had misdirected itself as a matter of law because it

was said to have asked, as the only question to be answered, whether "disclosure of the particular information in these particular documunts could reasonably be expected to have a

substantial adverse effect on the proper and efficient

I

conduct of the agency". However, we do not regard the

Tribunal as having identified that 8s the sole test to be

. . .

e . -

- 16 -

distilled from s.40(l)(c) for application to all conceivable

requests for documents. Rather, we. consider that the

Tribun.1 directed itself that the question which it identified in the words we have just quoted was the only question to be answered in the circumstances of M r

Dyrenfurth's request and the attitude taken by the Department

o f Social Security to documents of the general character of

the assessments in question.

Support for the view that the Tribunal directed itself

in the way we have just suggested is provided, first, by the

fact that in paragraph 13 of its decision the Tribunal

identified four adverse consequences which could be expected
to flow froa disclo8ure, not of particular information in
particular documents, but of a general class of documents,

i.e. "individual personal assessments" or "comparative

assessments". Had the Tribunal considered that it was

confined, as a matter of law, to the effect of disclosure of

particular information in particular documents, the

identification of those consequences would have been

irrolevant and unnecessary.

In the second place, at the conclusion of paragraph 14

of its reasons the Tribunal stated that "we agree with the

basic thrust of what is said in the guidelines and in

particular with its insistence that 'it	is not possible to
claim exemption for a document	anly for the reason that it

falls within a class of documents'." That passage, with its

adoption of the word "only", to which we have added emphasis,

. . , . r

i

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suggests to us that the Tribunal directed itself not that no

regard at all can be had, for the purposes of s.4O(l)(c) to

the fact that a document falls within a given class, but that

it is impermissible to allow that fact alone to determine whether dirclosure could reasonably be expected to have the

requisite substantial adverse effect.

Thirdly, we have been influenced by the Tribunal's

statement in paragraph 14 of its reasons that the agency's

guidelines "exist as a fact, and their existence in that form

seems to us to undermine the suggestion of Substantial

adverse consequence". That	is inconsistent with a view in
the Tribunal that regard to the consequences	of disclosure of
documents of a given class	is not available, as a matter of

law, in applying s.4O(l)(c).	Rather, the statement has	been
recorded to explain	why,	on the facts of this case, the

Tribunal saw itself as driven to consider only what could reasonably be expected to be the adverse effect of disclosure

of "the particular information in these particular

documents".

Another indication that the Tribunal did not fall into

the error of law for which the applicant contends is provided

by paragraph 16 of the reanons for decision	in which the
following conclusion is expressed:-

"What it comes down to, as it seems to us, is that

we ace asked to find that there is a reasonable

expectation of an increased apprehension of the

required adverse effect because the situation

arises in the	Senior	Executive	Service.	we	I
appreciate	the	point	that	there	is strong

c

- 18 -

competition for there appointments and that there

may be some difficulties in the working

relationrhip between	such competitors if the
documents are	disclosed, depending on their
contents.	Raving considered the text of the
particular documents here	in question, we are

however not of the opinion that diaclosure of the

material claimed to be exempt could reasonably be

expected to have the	required aubstantial adverse
effect.	The comments made about the individuals

are candid, but they are expressed with

moderation. We are unable to find these

particular documents exempt under	s.4O(l)(c),
notwithstanding that they have been created	in
the context of the SES."

I As we understand it, the Department claimed before the

Tribunal that the asrersment documents requested by Hr Dyrenfurth were distinguishable as a class from those to which the Tribunal considered the guidelines applied "to undermine the suggestion of substantial adverse consequence". We gather that the distinction contended for was that the guidelineB applied only to selection and promotion of officers within the Third Divioion of the A.P.S. However, the Tribunal expressed itself in paragraph 16 as unable to draw that distinction as a matter of fact. That is borne

out, in particular, by the concluding sentence of that

paragraph where the Tribunal significantly says that "we are

unable to find there particular documents exempt under

s.40(1)(c)'. The words to which we have added emphasis clearly convey that the Tribunal saw itself as making the conclusion required by s.40(l)(c) about each document and not

about 'the particular information in these particular

documents' which it examined on the way to its conclusion.

We are reinforced in our view of the way in which the Tribunal applied s.40(l)(c) by the pains taken by Hr Deputy

F

... v ' ,

I

- 19 -

President Todd in Re Barkhordar and Australian Capital

Territory Schools Authority (Decision number 3376 unreported 15 April 1987) to distinguish the facts in that case from thore of the present care. A8 apppars on the face of the decision in Barkhordar, it was given on the same day as the decision presently appealed from and with full knowledge and approval of what the Tribunal (with RT Todd presiding) had decided in respect of Ur Dyrenfurth's request. We refer to

I paragraph 17 of the reasons for decision in Barkhordar where

the learned Deputy President observed:-

"The Tribunal has emphasised in Re D renfurth that

except in particular i n s t a n c e s h t a n c e
ss.34 and 35) the F01 Act does not set up class

claims to exemption. Other exemptions 'depend

for their establishment upon the consequences

flowing from diSClO8Ure of the information

contained in the particular document access to

which is sought' : See paragraph	14 of the
Reamonm for Decision in Re Dyrenfurth.	In that
came the Tribunal	was unable to detect anything

in the particular documents there in question that would, in the context and in all the proved circumstances, lead to the conclusion that the substantial adverre effect contemplated by s.40(1) ( c ) might reasonably be expected to occur. The grave impediment to such a finding was the fact that the agency did not in that case appear, having regard to its own guidelines, to believe

in the likelihood of submtantial adverse

consequence. The suggestion of such adverse

consequence had been undermined from within. In

my opinion the situation here is quite different. Looked at for wh8t they represent, looked at in terms of their contents, and looked at in terms

of the coherent	and carefully thought out system
under which they	were brought into being, I have

no doubt whatsoever that release to the public of the documents here in isrue under the F01 Act could reasonably be expected to have a

submtantial adverme effect on the assessment	by
thu Authority of its	personnel by throwing well

considered and long adopted procedures for the

same into confusion and disorder..

In the light of the analysis which we have just

undertaken, we are not persuaded that there has been an error

of law by the Tribunal in deciding whether the documents requested by nr Dyrenfurth are exempt from disclosure	by
virtue of s.4O(l)(c).	However, since as we have earlier

indicated, an error of law has been identified in the

Tribunal’s application of s.41(1), the appeal must be

allowed, the decision of the	Tribunal must be set aside and
the application bu remitted to the Tribunal to	be heard and

decided according to law. In accordance with what we

understand to be an agreement between the parties, the

applicant should pay the respondent’s costs of the appeal.

I certify that this and the nineteen

(19) preceding pages are a true copy of the Reasons for Judgment herein of the Court.

-3.-	.
ssociate

Date:  c - c - ’ ~ .

ATTACHMENT A

Title of Action : Department of Social Security

v Eric Bernard Dyrenfurth

File Number	: VG 109 of 1987
Date of Hearing	: 5 October 1987

Counsel for the Applicant : R.R.S. Tracey

Solicitors for the Applicant : Australian Government

Solicitor

Counsel for the Respondent : G.A.A. Nettle

Solicitors for the Respondent : Corrs Pavey Whiting & Byrne

l