Department of the Premier & Cabinet v Redford - [2005] SADC 58

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
DEPARTMENT OF THE PREMIER & CABINET v REDFORD
Judgment of His Honour Judge Lee
1 June 2005
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - GENERALLY
ADMINISTRATIVE LAW - THE OMBUDSMAN - REVIEW OF OMBUDSMAN'S DECISIONS
Appeal from external review by Ombudsman of determination made by appellant – respondent applied to appellant for “access to documents concerning the Economic Development Board” – appellant refused application on grounds that documents were exempt – after refusal confirmed on internal review, respondent sought external review by Ombudsman – Ombudsman directed appellant to make determination releasing specified documents to respondent – Ombudsman’s reasons show that he was of opinion that he had no discretion to consider exemptions not relied upon by appellant – powers and obligations of Ombudsman on external review considered – appeal allowed and order made that matter be remitted to Ombudsman for further consideration.
Freedom of Information Act 1991 ss.3, 19, 20(1)(a), 23(f), 27, 29, 38, 39, 40, 42(3), 48 & schedule 1; Veterans' Entitlement Act 1986 s.120; Acts Interpretation Act 1915 s.34; District Court Act 1991 s.42F, referred to.
Bushell v Repatriation Commission (1992) 175 CLR 408; McDonald v Director-General of Social Security (1984) 6 ALD 6, considered.

DEPARTMENT OF THE PREMIER & CABINET v REDFORD
[2005] SADC 58

On 24 August 2004, the appellant was directed by the Ombudsman, following an external review under the Freedom of Information Act 1991, to release certain documents to the respondent. The appellant seeks to appeal to this Court against that direction. Section 39A of the Act permits an agency, by leave of the Court, to appeal against a direction of the Ombudsman on a question of law. The application for leave and the merits of the appeal were heard together.
The background facts are as follows.
By application dated 1 September 2003, the respondent sought from the appellant “access to documents concerning the Economic Development Board”.
By letter dated 8 October 2003, the appellant refused the application on the grounds that the documents were exempt documents as defined in various clauses of the first schedule.
By letter dated 14 October 2003, the respondent sought an internal review of the appellant’s determination.
By letter dated 27 October 2003, the appellant confirmed its determination.
By letter dated 4 November 2003, the respondent sought an external review.
On 24 August 2004, as already mentioned, the Ombudsman directed the appellant to release the documents to the respondent. The Ombudsman provided two sets of reasons: one to the appellant, and the other to both the appellant and the respondent. For the purposes of the appeal, I need only refer to the second set of reasons.
In the introductory part of his reasons, the Ombudsman explained his function on the external review:
“My task in this review is to decide whether I am satisfied that a different determination should be made by the agency in the circumstances of the case. This will depend on whether the agency has discharged its burden, under section 48 of the Act, of justifying its determination to refuse access to the documents, or parts thereof. If I am so satisfied, I may direct the agency to make a new determination in specified terms pursuant to section 39(3)(b) of the Act.”
An example of this approach is found in the Ombudsman’s reasons with respect to document 6:
“It is apparent from a perusal of this document that it deals with funding approval up to February 2002, a period of time now well over 2 years ago. As highlighted above, one must take into account the combination of the fact that the Fund is being wound up with the fact that the South Australian Government (“the Government”) is presently applying a different set of parameters to the question of industry assistance. Consequently I am of the opinion that the agency’s concerns are clearly outweighed by the argument that disclosure is in the public interest in order to enhance scrutiny of the Government’s past performance in the area of industry assistance, which also facilitates scrutiny of the Government’s broader economic performance. Accordingly, I am satisfied that a different determination should be made in the circumstances.”
Later, in relation to another of the documents, the Ombudsman said:
“Page 1 of document 60 is said to reflect confidential conversations. It is maintained that the level of detail that it contains is “commercial in confidence”. However I note on this point that the agency has not chosen to formally claim either clause 7 or clause 13 of Schedule 1 to the Act. Rather, it has sought to rely on the fact that the claimed exempt matter was commercially sensitive information, in the consideration of the public interest test in clause 9(1).”
Finally, the Ombudsman directed the appellant in the following terms:
“On the basis of the above, I am of the opinion in relation to the following documents (or parts thereof) that the agency has not satisfied its burden pursuant to section 48 of the Act, and I am satisfied that a different determination should be made in the circumstances of the case. I direct the agency to make a determination releasing the following documents to the applicant:”.
There then followed a list of documents including those which are the subject of the appeal.
The notice of appeal states:
“The Ombudsman erred in failing to consider whether other exemptions afforded by Schedule 1 of the Freedom of Information Act 1991 apart from those claimed by the Department of the Premier and Cabinet were applicable to the Industry Investment Attraction Fund documents and documents 29, 56, 60 and 101 (heading and paragraphs 1, 2 and 3) as required by section 39 of the Freedom of Information Act 1991.”
The outcome of the appeal will turn upon a construction of the Act that was in force at the time of the Ombudsman’s direction. The most recent amendments came into operation on 1 January 2005, and must be ignored.
To the extent that is relevant to this appeal, s.3 of that Act provides:
“(1) The objects of this Act are to extend, as far as possible, the rights of the public-
(a)to obtain access to information held by government; and
(b)to ensure that records held by government concerning the personal affairs of members of the public are not incomplete, incorrect, out-of-date or misleading.
(2)The means by which it is intended to achieve these objects are as follows:
(a)ensuring that information concerning the operations of government (including, in particular, information concerning the rules and practices followed by government in its dealings with members of the public) is made available to the public; and
(b)conferring on each member of the public a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are reasonably necessary for the proper administration of government; and
….
(3)It is the intention of Parliament-
(a)that this Act should be interpreted and applied so as to further the objects of this Act; and
(b)that the administrative discretions conferred by this Act should be exercised, as far as possible, so as to facilitate and encourage the disclosure of information of a kind that can be disclosed without infringing the right to privacy of private individuals.”
Section 19 requires an agency, after an application for access to documents is made, to determine whether access is to be given or refused and, if given, whether immediately or subject to deferral.
Section 20(1)(a) states than an agency may refuse access to a document if it is an exempt document of the kind described in one or more of the clauses of schedule 1.
Section 23(f) requires the notice of determination, if access is refused, to specify the relevant provision of schedule 1 and the grounds upon which the refusal is based.
Section 27, “Documents affecting business affairs”, is one of four sections in Division 2 of Part 3. The Division is headed “Consultation”. Section 27 provides that an agency must not give access to a document of that kind unless the agency has consulted the person concerned as to whether or not the document is an exempt document by virtue of clause 7 of schedule 1, and has deferred the giving of access until the time limit for an application for review or appeal has expired. Suitably paraphrased, clause 7(1)(c) of schedule 1 provides that a document which consists of information concerning the commercial affairs of an agency or person, the disclosure of which could have an adverse effect on those affairs and would, on balance, be contrary to the public interest, is an exempt document for the purposes of the Act.
Section 39 deals with the powers and obligations of the Ombudsman on an external review:
“39. (1) A person-
(a) who is dissatisfied with a determination of an agency that is liable to internal review and remains dissatisfied following an internal review; or
(b) who is dissatisfied with a determination that is not liable to internal review,
may apply for a review of the determination to the Ombudsman or the Police Complaints Authority.
….
(3) Where such an application is made-
(a) the Ombudsman or Police Complaints Authority may carry out an investigation into the subject-matter of the application (and for the purposes of such an investigation either the Ombudsman or the Police Complaints Authority (as the case requires) may exercise the same investigative powers as are conferred on the Ombudsman by the Ombudsman Act 1972 in relation to an investigation duly initiated under that Act); and
(b) the Ombudsman or Police Complaints Authority may, if satisfied that a different determination should be made in the circumstances of the case (including any relevant circumstances arising since the agency’s determination was made), direct the agency to make a determination in specified terms.
….”
Two points emerge from s.39(3). The first is that the Ombudsman is invested with a discretion, rather than an obligation, to carry out an investigation into the subject matter of the application. The second is that, before the Ombudsman can interfere with the determination of an agency, he must be “satisfied that a different determination should be made in the circumstances of the case (including any relevant circumstances arising since the agency’s determination was made)”.
Section 48 is also an important provision in the context of this appeal:
“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.”
The word “proceedings” would seem to relate to an internal review under s.29 or s.38, an external review by the Ombudsman under s.39, and an appeal to the District Court under ss.39A and 40.
It is not surprising that the burden of proof of grounds of non-disclosure is imposed upon the agency. As appears from s.3, the policy of the Act is to encourage disclosure to the public of information held by Government, unless such disclosure would interfere with the proper administration of Government or the privacy rights of individuals. In other words, the emphasis of the Act is upon disclosure rather than non-disclosure.
The function of the Ombudsman on an external review may be compared with the function of some of the administrative bodies from which an appeal lies to the Administrative Appeals Tribunal of the Commonwealth.
In Bushell v Repatriation Commission (1992) 175 CLR 408, the Hight Court was concerned with the function of the Repatriation Commission on applications for pensions under the Veterans’ Entitlement Act 1986. Section 120 of that Act provided that neither a claimant nor the Commonwealth had “any onus of proving any matter that is, or might be, relevant to a determination of the claim”. At pages 424-425 of the report, Brennan J said:
“This section is not concerned with an onus of proof. Sub-section (6) says so expressly. It is concerned with a standard of satisfaction to which the administrative decision-maker must attain in finding the relevant facts, and it directs the decision-maker to act on the material before the Commission, the Board or the A.A.T., as the case may be. Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the A.A.T. may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.”
In McDonald v Director-General of Social Security (1984) 6 ALD 6, the Full Court of the Federal Court was concerned with the function of the Director-General with respect to the cancellation of an invalid pension. At page 21 of the report, Jenkinson J said:
“... the administrative decision-maker will commonly inform himself of the facts by his own inquiries, as well as receiving such proofs as the individual citizen and those who may be authorized to oppose the citizen's interest choose to place before him. And he will not ordinarily be free, as a court is ordinarily free, to determine a matter against the party on whom lies the onus of proof, and who fails to offer any proof in discharge of the onus, without further inquiry. When the party to litigation on whom the onus of proof of an issue lies has concluded his evidence, the court may be called upon by the other party to determine the question of law whether that evidence can support a verdict or finding for him on whom the onus lies. Except by special legislative direction no administrative decision-maker could be so constrained. In many cases subject to administrative decision there is in any event no other party in controversy with him on whom the onus may be said to lie.”
It seems to me that the function of the Ombudsman on an external review lies somewhere between the adversarial function of a court and the inquisitorial function of an administrative body. The function of a court is to determine a matter upon the basis of the material put before it by the parties without any enquiry of its own and by reference if necessary to an onus of proof. The function of an administrative body, unless constrained by legislative direction, is to arrive at the correct or preferable decision on the material before it, including any material that it has gathered as the result of its own enquiry. The function of the Ombudsman is neither wholly inquisitorial nor wholly adversarial. Not wholly inquisitorial, because an onus is imposed upon the agency by s.48. Not wholly adversarial, because the results of an investigation (if the Ombudsman chooses to conduct one), or the interests of the public (whether for or against disclosure), or the interests of a third person (as determined by consultation), may need to prevail over the wishes of the parties.
In the result, I consider that the Ombudsman has a discretion rather than an obligation to consider exemptions not relied upon by an agency. It necessarily follows, and counsel for the respondent did not contend otherwise, that his review is not confined, as a matter of law, to exemptions relied upon by the agency.
This is an unusual case. The appellant now takes the position, to take document 60 as an example, that the document attracts on its face the business affairs exemption in clause 7 of schedule 1. Yet the appellant made no such submission to the Ombudsman on the external review. As the Ombudsman observed in his reasons, the appellant did not choose to make a formal ‘claim’ with respect to the exemption.
If an agency chooses not to rely upon an exemption notwithstanding that it is readily apparent from the face of the document, one would ordinarily expect the Ombudsman to consider the exemption. Nevertheless, according to the view that I take of the Ombudsman’s powers and obligations, he is not bound to do so. If he chooses to do so, his powers would be subject to an important qualification. In the interests of procedural fairness, he would need to give the applicant and the agency the right to be heard with respect to the exemption. Bearing in mind the onus imposed upon the agency by s.48, he would then be in a position to decide whether or not he is satisfied that a different determination should be made. If the exemption under consideration is one of the exemptions dealt with by Division 2 of Part 3, such as the business affairs exemption in clause 7, the Ombudsman may need to consult, or to require the agency to consult, with a third person.
Counsel for the respondent argued that the Ombudsman’s failure to refer to an exemption does not necessarily mean that it was overlooked. I agree, but I also agree with the submission of counsel for the appellant that the Ombudsman’s reasons make it clear that he was of the view that, unless an exemption is raised by an agency, it is unnecessary for him to give consideration to it.
I have already expressed the view that the Ombudsman may choose to consider an exemption not relied upon by an agency, but is not bound to do so. To the extent that the Ombudsman’s reasons show that he was of the opinion that he had no discretion in the matter, I consider that he was in error. I consider that the error is of sufficient importance to justify the grant of leave. In the end, this is the point which is determinative of both the application for leave and the appeal.
I mention two incidental matters before concluding.
The word “may” in ss.20(1) and 39(3)(b) was the subject of comment by counsel. Although s.34 of the Acts Interpretation Act 1915 provides that “may” imports a discretion, I find it difficult to envisage circumstances in which an agency would allow access to a document which it finds to be exempt, or in which the Ombudsman, though satisfied that a different determination should be made, would decline to direct the agency to make that different determination.
In the course of submissions, counsel for the respondent applied to tender a letter which his instructing solicitors had obtained from the Ombudsman. I received the letter and related correspondence and emails with an intimation that I would rule on the admissibility of the letter in due course. Section 42(3) of the Act provides:
“Neither the Ombudsman nor any officer of the Ombudsman or the Police Complaints Authority can be called to give evidence on an appeal.”
Since the letter concerns aspects of the external review, I agree with counsel for the appellant that the application should be rejected as an attempt to introduce by the side door evidence which would not be allowed through the front door.
Pursuant to s.42F of the District Court Act 1991, the orders of the Court are that
1.   leave to appeal be granted
2.   the appeal be allowed
3.   the direction given by the Ombudsman to the appellant on 24 August 2004 be rescinded
4.   the matter be remitted to the Ombudsman for further consideration in light of these reasons.
I will hear counsel with respect to the costs of the application for leave and the appeal.