Department of the Premier and Cabinet v Colin Thomas
[2014] SADC 56
•11 April 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Freedom of Information Act)
DEPARTMENT OF THE PREMIER AND CABINET v COLIN THOMAS
[2014] SADC 56
Judgment of His Honour Judge Boylan
11 April 2014
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION
Permission to appeal, and to appeal, against part of a Freedom of Information determination of the Ombudsman - questions of law - construction of sections 9 and 11 of schedule 1.
Held: Appeal allowed
Freedom of Information Act 1991 s 40(1); District Court Act 1991 s 42E (3), referred to.
Aronson and Groves, Judicial Review of Administrative Action (5th edition, 2013); Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Craig v State of SA (1995) 184 CLR 163, 179; Victoria Police v Marke (2008) 23 VR; Priebe v SA Police [2007] SADC 119; Ipex Information Technology Group Pty Ltd v The Department of Information Technology Services [1997] SADC 3618; (1997) 192 LSJS 54, 70, per Judge Lunn; McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; Daycorp Pty Ltd v Parnell [2011] SADC 191; Cutts v Head [1994] Chancery 290, 306, considered.
DEPARTMENT OF THE PREMIER AND CABINET v COLIN THOMAS
[2014] SADC 56Freedom of Information Act: Appeal
The Department of the Premier and Cabinet (DPC), seeks permission to appeal, and to appeal, against a determination of the Ombudsman dated 15 August 2012. The Ombudsman determined to vary a Freedom of Information Act determination of the appellant dated 26 October 2011. The appeal is against that part of the Ombudsman’s determination that the appellant release in full documents numbered 120, 132, 135, 147, 150, 151 and 152. The appellant, being an aggrieved agency, needs permission to appeal and may appeal only on a question of law.[1]
[1] Section 40(1) Freedom of Information Act.
BACKGROUND
The respondent was terminated in his employment at the State Library of South Australia, which is an agency of Arts SA, a business unit of the Department of Premier and Cabinet. He eventually filed an unfair dismissal action in the Industrial Relations Commission. At Department of Premier and Cabinet, the matter was handled by the Public Sector Workplace Relations (PSWR). That matter settled on 28 April 2011 and has been finalised. In June 2011, the respondent applied to the Department of Premier and Cabinet under the Freedom of Information Act 1991 for access to:
1.All documents contained in or associated with his DPC and State Library personnel files and;
2.All documents within State Records SA and between State Records SA and other government agencies that are directly or indirectly related to the respondent.
Mr Darryl Treasure, an FOI officer of the agency, determined that the respondent be given full or partial access to a number of documents falling within the scope of the application. Access to a number of other documents was refused in full. The respondent then applied for an internal review of Mr Treasure’s determination. The principal FOI officer of DPC, Mr Jim Hallion, confirmed Mr Treasure’s determination. The respondent then applied to the Ombudsman for external review. On 15 August 2012, the Ombudsman delivered his determination and reasons for it. He determined that a number of documents be released in full. Those documents included the documents numbered 120, 132, 135, 147, 150, 151 and 152. The appellant seeks permission to appeal against the Ombudsman’s determination in respect of those documents only.
In its internal review, the DPC, in respect of these seven documents, had determined that all seven of them were exempt pursuant to Clause 11(B) of schedule 1 because they contained matter prepared for the purposes of proceedings (including any transcript of proceedings) being heard or to be heard before a court or tribunal.[2] In addition, the agency determined that disclosure of documents numbered 120, 132, 135, 151, and 152 would be contrary to the public interest.[3]
[2] See Clause 11 of Schedule 1.
[3] See Clause 9 of Schedule 1.
With respect to the claimed exemption pursuant to Clause 11(b), the Ombudsman held that all seven documents were internal agency documents which related to the proceedings in a court or tribunal. He said that some are ‘innocuous’ and some are communications regarding settlement. The Ombudsman was not satisfied that the documents were ‘prepared for the purposes of proceedings’. He held that the purpose of the exemption in 11(b) ‘…is to ensure that the smooth functioning of courts and tribunals is not compromised and to ensure that neither party to a dispute is given an unfair advantage’. The Ombudsman then went on to consider the public interest.
In determining that the disclosure of all seven documents would not be contrary to the public interest, the Ombudsman held that disclosure would not put at risk ‘the candour, capacity and capability’ of the agency to deal with proceedings and ‘provision of or exchange of information, views and advice’. Further, he was of the view that the agency had not demonstrated that disclosure would hinder its capacity to ‘deal with industrial disputes effectively’. The Ombudsman went on to say ‘the documents are particular to the applicant’s dispute, and do not appear to reveal any general strategies or processes for dealing with industrial disputes that might have an adverse effect in any with [sic] future industrial disputes.’ The Ombudsman was also of the view that finalisation of Mr Thomas’s proceedings suggested that disclosure would not be contrary to the public interest.
Permission to appeal
The grounds upon which the DPC seeks permission to appeal are;
1. That the questions of law and associated grounds of appeal raise issues of general significance with respect to the purpose, scope and application of clause 11(b) of schedule 1 of the Freedom of Information Act 1991.
2. That the questions of law and associated grounds of appeal raise issues of general significance with respect to the determination of the “public interest” in relation to clause 9 of schedule 1 of the Freedom of Information Act 1991.
3. That the determination of the Ombudsman involves error as to the applicability of clauses 9 and 11 of schedule 1 of the Freedom of Information Act 1991 to the documents the subject of the appeal.
4. That there are cogent reasons to depart from the determination of the Ombudsman, within the meaning of s 42E of the District Court Act 1991.
The Department of Premier and Cabinet’s asserted questions of law and associated grounds of appeal are;
Question of Law 1
1. In respect of clause 11 of schedule 1 of the Freedom of Information Act 1991:
1.1 is the purpose of clause 11(b) limited to ensuring the smooth functioning of courts and tribunals is not compromised and that neither party to a dispute is given an unfair advantage?
1.2 does the phrase “prepared for the purpose of proceedings” in clause 11(b) extend to communications concerning preparation for and possible settlement of court or tribunal proceedings?
1.3 does the meaning of “prepared for the purpose of proceedings” properly construed make the documents the subject of the appeal exempt pursuant to clause 11(b)?
1.4 is the “innocuous” or other content of the documents a relevant consideration for the purpose of clause 11(b)?
Ground
1. The Ombudsman in determining the applicability of the exemption in clause 11 of schedule 1 of the Freedom of Information Act 1991 to the documents:
1.1erred in adopting a purposive interpretation of clause 11(b) that limited the purpose of clause 11(b) to ensuring the smooth functioning of courts and tribunals is not compromised, and to ensuring neither party to a dispute is given an unfair advantage;
1.2erred in construing the meaning of “prepared for the purposes of proceedings” within clause 11(b) as not extending to communications concerning preparation for and possible settlement of court or tribunal proceedings;
1.3in the alternative to 1.1 and 1.2, erred in applying the meaning of “prepared for the purpose of proceedings” properly construed, to the documents the subject of the appeal;
1.4had regard to an irrelevant consideration, being a finding that he content of some of the documents was “innocuous”.
Question of Law 2
2.In determining the applicability of clause 9 of schedule 1 of the Freedom of Information Act 1991:
2.1is a finding that release of the documents would not inhibit the candour, capacity and capability of the agency to provide information, views and advice so unreasonable or irrational that no reasonable or rational decision maker could have made it?
2.2is finding that release of the documents would not impact on the agency’s capacity to deal with employment disputes so unreasonable or irrational that no reasonable or rational decision maker could have made it?
2.3is a finding that the documents did not reveal general strategies for dealing with employment disputes so unreasonable or irrational that no reasonable or rational decision maker could have made it?
2.4is finding that the documents did not reveal general strategies for dealing with employment disputes an irrelevant consideration for the purpose of determining whether release would be contrary to the public interest?
2.5is a conclusion that release of the documents would not be contrary to the public interest so unreasonable or irrational that no reasonable or rational decision maker could have made it?
Ground
2.The Ombudsman in determining the applicability of clause 9 of schedule 1 of the Freedom of Information Act 1991 to the documents:
2.1unreasonably or irrationally found that release of the documents would not inhibit the candour, capacity and capability of the agency to provide information, views and advice;
2.2unreasonably or irrationally found that release of the documents would not impact on the agency’s capacity to deal with employment disputes;
2.3unreasonably or irrationally found that the documents did not reveal general strategies for dealing with employment disputes;
2.4erroneously had regard to an irrelevant consideration, being a finding that the documents did not reveal general strategies for dealing with employment issues.
2.5as a consequence of 2.1, 2.2, 2.3 and/or 2.4, unreasonably or irrationally concluded that release of the documents would not be contrary to the public interest.
In my view, the Department’s submission that the appeal raises questions of law, are well founded. Questions 1.1 and 1.2 are concerned with the purpose and scope of the expression “prepared for the purposes of proceedings” in clause 11(b) in schedule 1. That is a question of law.[4] Question 1.3 concerns the application of that same expression to the documents the subject of the proposed appeal. That, too, is a question of law.[5] Question 4 contains the Ombudsman’s taking into account an allegedly irrelevant factor. That, again, raises an issue of an error of law.[6]
[4] See Aronson and Groves, Judicial Review of Administrative Action (5th edition, 2013) at [4.230] and the cases there referred to.
[5] See Vetter v Lake MacQuarie City Council (2001) 202 CLR 439, 450 to 451.
[6] Craig v State of SA (1995) 184 CLR 163, 179.
Questions 2.1 to 2.4 are all concerned with the reasonableness of the Ombudsman’s application of the public interest test. That is a question of law.[7]
[7] See Vetter, supra.
Question 2.5 raises another question of law; do the Ombudsman’s conclusions fall outside the range of conclusions that were reasonably open to him?
Because those questions of law raise issues of general significance about the purpose, scope and application of clause 11(b) of schedule 1 and about the application of the “public interest” test in clause 9 of the schedule, I grant permission to appeal.
The appeal
The appeal is in the Administrative and Disciplinary Division of the District Court (Freedom of Information Act, s 4). The appellate jurisdiction of the court on an FOI appeal is covered by part 6, division 2, subdivision 2 of the District Court Act (1991).
The court can only depart from the determination made by the Ombudsman if there is a cogent reason for doing so.[8]
[8] See District Court Act, s 242E.
Under s 48 of the FOI Act, the agency bears the onus of establishing that a determination made by the agency is justified. In the context of an appeal by the agency this means that the agency bears the onus of establishing that its claims for extension are justified.
Pursuant to s 12 of the FOI Act, Mr Thomas has a legally enforceable right to be given access to the Department’s documents “in accordance with the Act”. His right of access is qualified by the exemptions set out in schedule 1. His motives for seeking the documents do not matter[9] and there is no limitation upon his use of them once access has been granted.[10] The possibility of further dissemination is relevant only to the application of the “public interest” test.
[9] Victoria Police v Marke (2008) 23 VR at [16].
[10] Priebe v SA Police [2007] SADC 119.
Pursuant to clause 11(b) of schedule 1, a document is an exempt document if it contains matter “prepared for the purposes of proceedings (including any transcript of proceedings) that are being heard or are to be heard before a court or tribunal.”
I received copies of all seven documents in a closed affidavit and I have studied the documents. Document 120 is a letter of advice to the Chief Executive Officer of the Department about settlement. Some part of it has already been released to the applicant. The remaining documents are documents generated within the Department seeking instructions or information which the Department required before attending in the IRCSA in reply to Mr Thomas’s unfair dismissal application. Some of those documents, too, have already been released. All documents were generated within the Department as part of the Department’s process for making its advocate ready for the hearing in the IRCSA. I note here that there can be no doubt that IRCSA is a “tribunal” within the meaning of s 4(1) of the FOI Act.
The Department submitted that the Ombudsman erred in his construction and application of the exemption in clause 11(b) when he construed it as being limited to ensuring that the smooth functioning of courts and tribunals is not compromised and that neither party is given an unfair advantage. The Department further argues that the Ombudsman erred again when he found that the exemption in clause 11(b) does not cover documents concerning preparation or settlement of proceedings. The Department’s submission is that the Ombudsman construed clause 11(b) too narrowly and, in particular, he construed the phrase ‘for the purposes of proceedings’ too narrowly.
The Department accepts that the phrase “for the purposes” contemplates something more than the matter merely “relating to” proceedings or being “about” proceedings; that there must be a more direct correlation between the preparation of the documents and the purpose of the proceedings. It argues that there is nothing in the text to suggest that the word “proceedings” should be limited to the actual conduct of the hearing before a court or tribunal and that “proceedings” should be interpreted to include all stages of dispute resolution before the IRCSA and to include both the preparation and negotiation of settlement agreements. It says that its argument is supported by the fact that the exemption in clause 11(b) extends to documents prepared for proceedings that are yet to be heard.
In considering the meaning of the expression in clause 11(b), one must look at its context in relation to other provisions in the Act. In particular, one should take into account that courts and tribunals are expressly excluded from the scope of the Act[11] and that that exclusion includes certain functions of the registry and members of staff.[12] Further, documents prepared by or on behalf of courts or tribunals are already covered by clause 11(c) in schedule 1 and, further again, there is a specific exemption in clause 10 of the schedule for documents that would normally be covered by legal professional privilege. The context, therefore, suggests that clause 11(b) should be construed to include documents prepared by persons other than courts or tribunals. Documents prepared by courts or tribunals themselves are already covered and one would have expected Parliament to be more specific if clause 11(b) was intended to have such a restrictive operation. Under clause 11(b) it does not matter which agency creates or holds the documents as long as they are prepared “for the purposes” of proceedings.
[11] See ss 6(1)(a) and 6(1)(b).
[12] S 6(2)(b).
The context in which clause 11(b) appears also suggests that the phrase “prepared for purposes of proceedings” encompasses a wider range of documents than communications between solicitors and clients which are covered by legal professional privilege and protected by clause 10. Further, the inclusion of paragraph (b) in clause 11, a clause concerned with “judicial functions”, suggests that the purpose of (b) is to promote the administration of justice. It is well recognised that the settlement of dispute and the avoidance of litigation are essential components of the administration of justice. In my view, there can be no doubt that the purpose of the proceedings initiated by Mr Thomas in the IRCSA was to resolve a dispute between him and the Department. The documents the subject of this appeal were, in my view, all prepared with a view to that same end. While that may be taking a fairly broad approach to clause 11(b) it is, in my view, the correct approach. Accordingly, I accept the Department’s submission that the Ombudsman erred in applying too narrow a construction of the exemption in 11(b).
I turn to the Ombudsman’s observation about the proceedings having been finalised. Again, I think that the Department is correct in its submission that the relevant time for undertaking the enquiry required by clause 11(b) is the time of creation of the document rather than the time at which application for access is made under the FOI Act. Such a construction – or interpretation – creates a single point in time for agencies to undertake the relevant assessment and is productive of certainty.
I refer also to the Ombudsman’s determination that the documents were “innocuous”. Clause 11(b) invites a purposive enquiry which requires an objective assessment of the purpose for which the document was created. This may involve consideration of the content of the document to determine whether it contains matter that is “prepared for the purposes” of proceedings. However, a purposive approach does not invite an evaluative assessment of the content. Thus the Ombudsman’s finding that the content of some of the documents was “innocuous” amounted to an irrelevant consideration and was, therefore an error of law.
For the reasons given above, I am respectfully of the view that the Ombudsman has erred in his construction and application of clause 11(b).
The “public interest” test
The relevant parts of clause 9 reads as follows.
9 – INTERNAL WORKING DOCUMENTS(1) a document is an exempt document if it contains matter –
(a)that relates to –
(i)any opinion, advice or recommendation that has been obtained, prepared or recorded; or
(ii)any consultation or deliberation that has taken place,
in the course of or for the purpose of, the decision making functions of the government, a minister or an agency; and
(b)the disclosure of which would, on balance, be contrary to the public interest.
All seven documents the subject of this appeal meet the first two of those elements. The Ombudsman appears to have accepted that the documents come within the description of internal working documents in clause 9(1)(a). Accordingly, the issue in this appeal is limited to the application of the public interest test. The application of that test requires that the appellant show that “on balance the factors in the public interest against disclosure outweigh the factors in favour of disclosure”[13]. Some of the factors which the courts take into account in applying the test are set out in the judgment of Davies J in Howard and the Treasurer (1985) 7 ALD 626, 634-635. Relevant in this appeal is the need to protect the deliberative processes of government and the need to ensure that frankness and candour are not inhibited. The threat to candour posed by the release of documents cannot be too readily dismissed.[14]
[13] See Ipex Information Technology Group Pty Ltd v The Department of Information Technology Services [1997] SADC 3618; (1997) 192 LSJS 54, 70, per Judge Lunn.
[14] See McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, [121] per Callinan and Hayden JJ.
It is necessary to consider these factors in light of the particular documents under consideration and the whole of the circumstances.[15] The Public Sector Workforce Relations Division of the Department provides industrial representation, advocacy, advisory and consultancy services to the South Australian Public Sector. It is an essential part of the PSWR’s role to provide candid and frank advice to the Chief Executives of the various public sector agencies in relation to employment disputes. Accordingly, it is imperative that the PSWR and public sector agencies can exchange information openly and discuss employment claims and disputes openly, including options to resolve proceedings.
[15] See Daycorp Pty Ltd v Parnell [2011] SADC 191, [100].
The disclosure of the seven documents would have an adverse effect on the ability of PSWR and other public sector agencies effectively to negotiate settlement agreements. Further, such documents are ordinarily protected from disclosure in the IRCSA and so the disclosure of the documents would detract from, and enable the circumvention of, the Industrial Proceedings Rules 2010.
There is a strong public interest in encouraging litigants to settle disputes out-of-court and to protect communications made in the course of settlement.[16] Settlement is advantageous because it limits resourcing impacts on courts, tribunals and litigants and it avoids the anxiety that litigation often entails for individual litigants. This public interest in settlement extends to protecting the honest exchange of views about the prospects of litigation. In my view, the Ombudsman failed to have regard to the clear public interest in the settlement of proceedings in the IRCSA.
[16] See Cutts v Head [1984] Chancery 290, 306.
The communications in the documents relate to the potential resolution of Mr Thomas’s proceedings and contain general strategies about how employment disputes (and the settlement of such disputes) are to be dealt with. Such frank and candid communication is essential if settlement is to be reached. Disclosure of such documents would hinder free communication which would, in turn, impede prospects of settlement. It is not in the public interest to discourage employment disputes from being resolved by consent. The fact that this particular dispute had been concluded is irrelevant as the release of such documents would inhibit the ability of the PSWR to provide candid advice and communications in the future. Accordingly, I am of the view, with respect, that the Ombudsman erred in his application of the public interest test and acted unreasonably in concluding that the release of the documents would not be contrary to the public interest.
I make the following orders:
1. That the appeal be allowed.
2. That documents numbered 120, 132, 135, 137, 150, 151 and 152 are exempt pursuant to clauses 9 and 11 of schedule 1.
3. That the determination of the Ombudsman ordering the release of those documents be reversed.
4. That the Department pay Mr Thomas’s reasonable costs, as taxed or agreed.
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