Gilligan and Australian Securities and Investments Commission
[2011] AATA 104
•17 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 104
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3069
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL GILLIGAN Applicant
And
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Respondent
DECISION
Tribunal Professor R Creyke, Senior Member Date 17 February 2011
PlaceCanberra
Decision The decision under review is affirmed.
............................[sgd]................................
Professor R Creyke, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – exemptions under sections 36(1), 40(1) and 41(1) – whether adequate disclosure – whether internal documents – whether disclosure in public interest – whether disclosure would inhibit participation of external stakeholders – whether disclosure would inhibit communication at senior policy level – whether disclosure of tentative opinions misleading - whether disclosure would have adverse effect on agency operations – whether disclosure would unreasonably affect personal privacy – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 26
Freedom of Information Act 1982 (Cth) ss 4, 22, 36, 40 and 41
Attorney-General’s Department v Cockcroft (1986) 64 ALR 97
Bennett v Vice Chancellor, University of New England [2000] NSWADT 8
Colakovski v Australian Telecommunications Corporation (1991) 23 ALD 1
Director of Public Prosecutions v Smith (1999) 100 FLR 6
Harris v Australian Broadcasting Corporation (1984) 5 ALD 564
Matthews and Australian Securities and Investments Commission [2010] AATA 649
McKinnon v Secretary, Department of Treasury (2005) 88 ALD 12
O'Sullivan v Farrer (1989) 168 CLR 210
Re Burns and Australian National University (No 2) (1985) 7 ALD 425
Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139
Re Cleary and Department of Treasury (1993) 31 ALD 214
Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60
Re Hanna and Australian Trade Commission [2002] AATA 624
Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626
Re Huttner and Department of Immigration and Ethnic Affairs (1995) 38 ALD 781
Re Lianos and Secretary, Department of Social Security (1985) 7 ALD 475
Re James and Australian National University (1984) 6 ALD 687
Re McCarthy and Australian Telecommunications Commission (1987) 13 ALD 1
Re Page and Metropolitan Transit Authority (1988) 2 VAR 243
Re Public Interest Advocacy Centre and Department of Community Services (No 2) (1991) 23 ALD 714
Re Veale and Town of Bassendean [1994] WAiCmr 4
Re Waterford and Department of Treasury (No 2) (1985) 5 ALD 588
Robinson v Director-General, Department of Health [2002] NSWADT 222
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
Tillmans Butcheries Pty Ltd v Australasian Meat Employees Union (1979) 27 ALR 367
Tunchon v Commissioner of Police, NSW Police Service [2000] NSWADT 73
REASONS FOR DECISION
17 February 2011
Professor R. Creyke, Senior Member
1. On 1 May 2010, Dr Michael Gilligan sought review of a decision by the Australian Securities and Investments Commission (ASIC) to deny him access under the Freedom of Information Act 1982 (Cth) to documents relating to the establishment of the ASIC Superannuation Forecasts Project.
2. Access was granted to 30 of the 32 identified documents. Another document was released in part and an exemption was claimed for one document only. The decision was varied on internal review on 19 July 2010 by releasing more of the document released in part. The claim of exemption in its entirety was maintained in relation to the other document.
3. On 22 July 2010, Dr Gilligan sought further review by the Tribunal.
Legislation
4. The relevant provisions of the Freedom of Information Act 1982 (Cth) in force at the time are:
22 Deletion of exempt matter or irrelevant material
(1) Where:
(a) an agency or Minister decides:
(i)not to grant a request for access to a document on the ground that it is an exempt document; or
(ii)that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i)would not be an exempt document; and
(ii)would not disclose such information; and
(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
36 Internal working documents
(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.40 Documents concerning certain operations of an agency
(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to: ..
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency . …
(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.
41 Documents affecting personal privacy
(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of personal information about any person (including a deceased person).
Issues
5. The two issues are:
· Whether there had been an adequate search for information relating to Mr Gilligan’s request; and
· Whether those parts of Document 2 sought by Dr Gilligan under the Freedom of Information Act 1982 (Cth) (Act) which were deleted by ASIC should be exempt in accordance with sections 36(1), 40(1)(d) and 41 of the Act.
Background
6. On 1 May 2010 Dr Gilligan requested access to the following documents under the Act:
…information…in whatever form (eg on paper, emails, records of conversation, minutes, reports, agenda of meetings)…which establishes the Superannuation Forecasts Project, including the reasons, objectives, required resources, benchmarks and milestones when the project was established together with any subsequent revision of these aspects.
ASIC on 11 May 2010 acknowledged receipt of the request. On 28 May 2010, ASIC advised Dr Gilligan of the charges for processing the request ($155.10).
7. On 9 June 2010, the authorised decision-maker decided that 32 documents were within the scope of the request. Of the 32, Documents numbered 3 to 32 were released in full. Document 1 was released in part, the balance of the document being regarded as irrelevant, and material in Document 2 was deleted because it was claimed to be exempt under section 36(1) of the Act, however an exemption was claimed for the whole document.
8. It is common knowledge that Document 2 was 'an email [from Ms Bird] to Mr Jeremy Cooper, the Deputy Chairman of ASIC, relating to work done on projections of superannuation benefits', dated 8 April 2008. The email was part of a chain which included an email from Ms Bird on 'Projections and Calculators', dated 24 April 2008.[1] The email chain preceded the publication by ASIC of Consultation Paper 101 Superannuation Forecasts (CP101) in July 2008, calling for submissions by October 2008.
[1] Affidavit by Ms Cebon, ASIC, 24 November 2010, 2.
9. Dr Gilligan sought internal review on 15 June 2010. On 19 July 2010, the authorised internal reviewer decided to vary the initial decision by releasing a further two and a half pages of Document 1. The exemption was maintained over the balance of Document 1 on the ground that the material was irrelevant. Document 2 remained subject to a claim of exemption in its entirety.
10. On 22 July 2010, Dr Gilligan sought further review by the Tribunal. At a directions hearing on 1 October 2010, Dr Gilligan said he no longer sought access to the deleted parts of Document 1. He declined to consent under section 26 of the Administrative Appeals Tribunal Act 1975 (Cth) to vary the decision under review to allow release to him of Document 2 with the deletion of only the minor parts over which ASIC then claimed exemption.
11. In response to a different request by Dr Gilligan, ASIC released Document 2 with the same minor deletions claimed in the present proceedings. As a result, Document 2, with those minor deletions, is in the public domain.
12. At the hearing Dr Gilligan requested confirmation that all possible documents had been identified. In particular, he asked whether there are documents addressing the impact of existing legislation on forecasting of superannuation benefits. Counsel for ASIC noted that a further 3 file notes and an email chain had been identified. However, she cautioned that ASIC was not able to conduct exhaustive inquiries and that more documents might be available.
13. Accordingly, and in response to a request by Dr Gilligan, the Tribunal directed that on or before 10 January 2011, ASIC file any further evidence in relation to the adequacy of the search for documents undertaken in response to Mr Gilligan’s request of 1 May 2010.
14. The Tribunal issued a confidentiality order under section 35(2)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) prohibiting the disclosure to Dr Gilligan of the non-redacted copy of Document 2.
Consideration
Inadequate and incomplete disclosure
15. Dr Gilligan asserted that it was inconceivable that the documents provided to him did not include information concerning the resources and costs of the project, the pre-existing forecasting capability of ASIC, its interaction with this forecasting project, official ASIC considerations about the project, or the necessary legislative changes. In addition, he was concerned about inconsistencies in the documents provided.
16. ASIC provided a response to the Tribunal direction, confirming it had no further evidence to provide relating to the adequacy of the original search. Information of the legislative and other kinds sought by Dr Gilligan was not provided. The Tribunal finds that a search to an acceptable degree was undertaken and that such information, if it exists, is not able to be provided.
17. The inconsistencies in the documents provided were discussed at the hearing, but no direction was needed on the issues identified.
Deletions from Document 2
18. The Document 2 sought in this application related to a project, referred to as the ‘Superannuation Forecasts Project’ and initiated in April 2008 by the ASIC Regulatory Policy Branch (now known as the Strategic Policy team). The document concerned the use of calculators or projections for the purpose of forecasting levels of individual’s superannuation savings. The purpose of the project was to enable an accurate forecast of the likely balance of superannuation benefits of a person on retirement.
19. ASIC argued that the exemption sought in relation to parts of Document 2 is on the basis that some or all of those parts are internal working documents (section 36(1) of the Act); that they affect the operations of an agency (section 40(1)(d) of the Act); and that they are personal information (section 41 of the Act).
20. Dr Gilligan contends that it is in the public interest to release the balance of the information contained in Document 2. Discussion of the relevant exemptions claimed by ASIC follows.
Section 36(1) – internal working documents
21. Section 36(1) is only satisfied if the application meets two criteria: the document falls within section 36(1)(a) as an internal working document; and disclosure would be contrary to the public interest (section 36(1)(b)). The document must also not contain ‘purely factual material’. [2]
[2] Freedom of Information Act 1982 (Cth) s 36(5); Harris v Australian Broadcasting Corporation (1984) 5 ALD 564 at 568.
22. Having examined the documents the Tribunal is satisfied that the deleted material in the document does not record purely factual matters. Rather the principal content is opinion and evaluation of material.
Whether exemptions sought are covered by the internal working documents exemption in section 36(1)(a)
23. Internal working documents are exempt if disclosure would reveal ‘opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place in the course of, or for the purposes of, the deliberative processes involved in the function of an agency’ (section 36(1)(a)).
24. The Tribunal is satisfied that Document 2 is an evaluation by officers of ASIC relating to material provided by a private sector body, a summary of views of external stakeholders at an informal consultation, and internally produced documents on the superannuation forecasts project.
25. The principal document was prepared by Ms Joanne Bird, Acting Director, Regulatory Policy Branch, ASIC, the branch then responsible for strategic regulatory policy and law reform advice.[3] It contained an 'opinion, advice or recommendation' on a matter - its Superannuation Forecast Project - that was within the function of ASIC, namely, advising government on national policy issues concerning superannuation. That function falls within the consumer protection role which is expressed by ASIC on its website as:
· Maintain, facilitate and improve the performance of the financial system and entities in it
· Promote confident and informed participation by investors and consumers in the financial system
· Administer the law effectively and with minimal procedural requirements; and
· Enforce and give effect to the law.[4]
[3] Affidavit by Ms Ella Cebon, ASIC, 24 November 2010, 2.
[4] Australian Securities and Investment Commission, Our Role (last updated 12 December 2010) Headline/Our%20role.
26. The document was provided as part of the process for developing a proposal or proposals to be put to the Minister responsible for ASIC with a view to either developing policy change or embodying such policy in legislation. For the document to be ‘obtained’ for the purpose of deliberative processes it must have specifically been ‘acquired or procured’ for those purposes.[5]
[5] Re Matthews and Australian Securities and Investments Commission [2010] AATA 649 at [17].
27. The document must have been prepared as part of ASIC's 'deliberative processes'. ‘Deliberative processes’ are an agency’s ‘thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal … or a course of action’.[6] The exemption applies if disclosure would reveal the ‘thinking’ processes of an agency.[7] Thinking that may be based on the evaluation of material supplied by a person or body outside government is within the provision.[8]
[6] Re Waterford and Department of Treasury (No 2) (1985) 5 ALD 588 at 606.
[7] Ibid at 606-7.
[8] Harris v Australian Broadcasting Corporation (1984) 5 ALD 664 at 568.
28. In this case, the document referred in part to the views of external stakeholders who had been informally consulted about the project, and of another agency which had supplied information to ASIC. These views were specifically ‘obtained’ by ASIC for the purpose of developing its policy on superannuation forecasts. The document also contained the views of Ms Bird on the information exchanged during the consultations as well as on the material supplied by another agency. Her views were an element of the deliberations within ASIC on the topic.
29. The thinking of ASIC as evidenced by the document, was at a preliminary stage, tending to reinforce its character as a matter of opinion, advice or recommendation.[9] Ms Bird was evaluating this information and providing advice and some tentative recommendation on the way forward to the Acting Deputy Director of ASIC. Accordingly, the document falls within section 36(1)(a).
Whether the exemption in section 36(1) should apply to Document 2 because disclosure would be contrary to the public interest (section 36(1)(b))
[9] Freedom of Information Act 1982 (Cth) s 36(1)(a).
30. Section 36(1) provides that a document is an exempt document provided the disclosure of material covered by section 36(1)(a) ‘would be contrary to the public interest’. That is the principal issue in this matter. The 'public' in this context refers not to an individual or individuals, but to citizens as a group or as a whole.[10] Dr Gilligan contended that disclosure would not be contrary to the public interest; ASIC disagrees.
[10] Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 480.
31. The ‘public interest’ is a chameleon concept. As Tamberlin J noted in McKinnon v Secretary, Department of Treasury (McKinnon):
This expression is…one that does not have any fixed meaning. It is of the widest import and is generally not defined or described in the legislative framework, nor, generally speaking, can it be defined. It is not desirable that the courts or tribunals, in an attempt to prescribe some generally applicable rule, should give a description of the public interest that confines this expression.
The expression ‘in the public interest’ directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances. [11]
[11] McKinnon v Secretary, Department of Treasury (2005) 88 ALD 12 at 14.
32. The ‘public interest’ takes its meaning from its factual and its statutory context.[12] The meaning involves balancing competing interests.
In evaluating where the public interest ultimately lies…it is necessary to weigh the public interest in citizens being informed of the processes of their government and its agencies on the one hand against the public interest in the proper working of government and its agencies on the other.[13]
The 'processes of…government and its agencies' includes:
…standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members.[14]
In that context, one of the factors or matters taken into account by decision-makers in deciding whether release would be in the public interest is that ‘disclosure…will inhibit frankness and candour in future pre-decisional communications’.[15] Choosing between disclosure and non-disclosure is dependent on ‘the effects of a present disclosure of the document in the particular circumstances in which the document was or will be used in its particular “decision-making” context’.[16]
[12] O'Sullivan v Farrer (1989) 168 CLR 210 at 216.
[13] Harris v Australian Broadcasting Corporation (1983) 5 ALD 545 at 554.
[14] Director of Public Prosecutions v Smith (1999) 100 FLR 6 at 18.
[15] Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626 at 635.
[16] Tunchon v Commissioner of Police, NSW Police Service [2000] NSWADT 73 at [15].
33. Dr Gilligan’s arguments are that any adverse effect from release of information provided by stakeholders is countermanded by the public benefit in knowing who and what influenced ASIC in its decision-making. In relation to the argument that it is necessary to maintain the confidentiality of opinions concerning strategic issues arising in policy development, Dr Gilligan’s view is that although these matters are narrow and technical they should be released because of the consequence for all Australians. Dr Gilligan also maintains that ASIC lacked the expertise for undertaking this project and was biased. For that reason also Dr Gilligan maintains complete transparency is necessary in the public interest to expose these features of the process.
34. Without corroboration, Dr Gilligan’s full submissions on these issues are insufficient to establish the lack of expertise and bias he has asserted. Nor is it the Tribunal’s role, in the context of the assertions of ASIC’s lack of expertise, to assess the extent of reliance that should have been placed by ASIC in its processes on the submissions presented by the company which Dr Gilligan represents. The issue before the Tribunal is whether those exempted portions of Document 2 should be published in the public interest.
35. Disclosure of Document 2 would reveal that ASIC sought the views of key stakeholders at an informal level, as well as more formally, through responses to the consultation paper, and also requested the advice on a technical matter from another government organisation, and attached documents developed by ASIC on related issues.
36. Evidence that ASIC adopted such a policy formulation process would not come as a surprise to citizens. In other words, its disclosure would not add to the public’s knowledge of the ‘processes of government and its agencies’. Nor would the request for advice by another agency indicate on its own that ASIC lacked competence. Equally, the evaluation of stakeholder’s views by an officer within ASIC, and the expression of a tentative opinion on those views and of the issues for discussion, did not demonstrate lack of competence or bias on ASIC’s behalf. On that basis, the Tribunal does not find that release of this material would illustrate these concerns expressed by Dr Gilligan and would, accordingly, be in the public interest.
ASIC submissions
37. Counsel for ASIC made five submissions as to why disclosure of the balance of Document 2 would be contrary to the public interest:
·The material was communicated in confidence
·The communication was made at a high level of ASIC
·The views expressed were tentative
·Disclosure could prejudice participation by stakeholders in informal consultation within ASIC; and
·Disclosure could damage the integrity of decision-making within ASIC.
These submissions rely on interrelated considerations and discussion of these will necessarily involve some degree of overlap.
38. The first submission was that the document was an evaluation of a report of views provided by a body and people outside the organisation; it was not an evaluation or an opinion about a document produced within ASIC. Opinion of that kind is of its nature provided in confidence, unless there is a clear indication to the contrary. Disclosure of the names and affiliations of the key stakeholders who were consulted and publication of their views obtained in confidence could inhibit the ability of ASIC, in future, to obtain such views. The practice of informal consultation with key stakeholders is accepted as a regular and desirable element of government processes. Disclosure of the views of persons or bodies outside government in such circumstances, could lead to their increased reluctance to participate in such consultations, and would not be in the public interest.
39. A related concern is that an evaluation of such views by the agency could equally inhibit ASIC’s ability in future to obtain such assistance. Ms Cebon, a Senior Manager within ASIC, gave evidence that:
… divisions within ASIC that develop policy and provide advice maintain confidentiality of evaluations made by ASIC officers of the different views and perspectives expressed by key external stakeholder organisations with which ASIC consults.[17]
[17] Affidavit by Ms Cebon, ASIC, 24 November 2010, 4.
40. The Tribunal accepts the contention that disclosure of this evaluation of the views of the stakeholders could undermine the relationship between ASIC and the stakeholder organisation and inhibit participation by such organisations.
41. The Tribunal is also mindful of the distinction between a document which reflects a settled position of an agency and one which reflects a preliminary view made at an early stage.[18] The views expressed by Ms Bird fall into the former category. Release of tentative views at an early stage of the process is likely to be misleading. It would also not be informative for the public, particularly if, as claimed, there has been a change in policy direction, as there has been in relation to superannuation forecasts following the release of the report of the Cooper Review.[19]
[18] Re Matthews and Australian Securities and Investments Commission [2010] AATA 649 at [300]-[301].
[19] J Cooper, Review into the Governance, Efficiency, Structure and Operation of Australia’s Superannuation System (Cooper Review) (July 2010).
42. The second public interest reason for non-disclosure was that the potential release of confidential advice on strategic matters would inhibit the candour between senior officers within ASIC and the executive of the agency. Document 2 contained policy advice on strategic matters provided by a senior policy adviser to the Deputy Chairperson of ASIC.[20]
[20] Re Lianos and Secretary, Department of Social Security (1985) 7 ALD 475.
43. The submission by Ms Cebon, a Senior Manager within ASIC, was that ‘officers who give advice, communicate their views and make recommendations to senior officers as to such strategic approaches, do so on the basis of strict confidentiality’.[21] In her view, maintaining that level of confidentiality was ‘essential to the effectiveness and integrity’ of such advice.[22] Such an approach, it was contended, had not been disapproved by the High Court in McKinnon.[23]
[21] Affidavit by Ms Cebon, ASIC, 24 November 2010, 5.
[22] Ibid.
[23] McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at 466 per Callinan and Heydon JJ.
44. The Tribunal accepts that under the Act internally generated documents containing opinion and advice on a matter of high level political judgment may, on balance, not be disclosed in the public interest where this could generate ‘undesirable speculation as to the inner workings of Government in respect of matters that are of continuing significance’.[24]
[24] Re Lianos and Secretary, Department of Social Security (1985) 7 ALD 475 at 499.
45. The argument is that disclosure would inhibit the candour and frankness of the tendering of advice in such circumstances of high-level decision and policy making.[25] There is some support for this view in the context of a university, where it was accepted that there was a public interest in non-disclosure of the deliberations of the Council of the Australian National University.[26]
[25] See e.g. ReMcCarthy and Australian TelecommunicationsCommission (1987) 13 ALD 1 at 15.
[26] Re Burns and Australian National University (No 2) (1985) 7 ALD 425 at 439-440.
46. However, the university example is not an exact one. Discussions at senior levels of the public service have a different, more policy oriented focus and there would be greater public interest in having access to such documents. On its own, therefore, this may not be a sufficient reason to deny disclosure on the ground of public interest.[27] However, in the context of this case, combined with the argument about tentativeness in the next submission, the balance shifts to non-disclosure.
[27] Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139 at 153.
47. A third and related public interest reason was that the views expressed in the document were tentative, release of which could ‘create a misleading, perhaps unfair, impression in the minds of readers’.[28] Such a reason, it was claimed by counsel, was also not disavowed in McKinnon.[29] At the same time, doubt has been cast on the utility of this factor given ‘its implicit assumption that the Australian community lacks the sophistication to distinguish between a proposal canvassed as an option and a proposal actually adopted’.[30]
[28] Respondent’s submissions, 8 December 2010, paragraph 3.13.
[29] McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at 466 per Callinan and Heydon JJ .
[30] M Paterson Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State (Lexis Nexis, 2005) 297, paragraph [7.16].
48. The Tribunal is satisfied that the material is preliminary in nature. There is reference to further research which could be undertaken and subsequent consultations which may be an option. In other words, the document is a record of ‘pre-decisional’ material of the agency.[31]
[31] Harris v Australian Broadcasting Corporation (1984) 5 ALD 564, 567.
49. The document under consideration was tentative and preliminary in nature. All that is known after it was provided about the course the government undertook is only found in the two consultation papers, CP101 and Consultation Paper 122 Superannuation Forecasts: ASIC relief and guidance for super funds (CP 122), released in October 2009. No definitive paper by ASIC has yet been published. In those circumstances, it would not have been in the public interest to disclose the document. As Davies J said protection of the deliberative process:
…protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions…Second, it protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon…And third, it protects the integrity of the decision-making process itself by confirming that “officials should be judged by what they decide, not for matters they considered before making up their minds.[32]
[32] Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626 at 633.
50. Employing this reasoning, it has been accepted that earlier drafts of later documents need not be disclosed.[33] That same argument has applied to documents which form part of a series of documents relevant to a particular matter.[34]
[33] Re Lianos and Secretary, Department of Social Security (1985) 7 ALD 475 at 499.
[34] Re Cleary and Department of Treasury (1993) 31 ALD 214.
51. The views of Ms Bird were expressed in April 2008, the month the project was started. Their preliminary character and their tentativeness, coupled with the lack of evidence as to any correlation between those views and what is likely to be in the final policy document on superannuation forecasts, are a ‘cogent ground’[35] for non-disclosure. The Tribunal is also unable to assess the relevance of the discussion given that no final government position on this issue is yet known.
[35] McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at 466 per Callinan and Heydon JJ (for the majority).
52. It is hard to see what interest the public as a whole or a segment of it would have in knowing the ideas which were canvassed, but not necessarily adopted, along the way.[36] In these circumstances, disclosure could not contribute to the public debate about what the government actually decides and, on balance, it would not be in the public interest to disclose the document.
[36] Re Waterford and Treasurer (No 2) (1985) 7 ALN N37 at N41.
53. A fourth public interest reason was that disclosure would be likely to prejudice participation by stakeholders as it could inhibit frankness and candour in future pre-decisional communications. This ground has not been accepted as sufficient on its own.[37] In particular evidence is required that disclosure would have a dampening effect.[38] There has been earlier discussion in these reasons of this issue.
[37] Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at 103.
[38] Bennett v Vice Chancellor, University of New England [2000] NSWADT 8.
54. Ms Cebon indicated that as the request for participation was made on an informal basis at a preliminary stage of the policy making process, there is a public interest in preserving the effectiveness of such consultations.[39] This is not the ‘clear, specific and credible evidence’[40] said to be needed in such cases. Nonetheless, as a matter of general knowledge, it can be accepted that individuals and organisations outside government would be less inclined to provide responses to informal soundings by government if their views are to be published, particularly if there are commercial reasons for non-disclosure.
[39] Affidavit by Ms Cebon, ASIC, 24 November 2010, 5.
[40] Bennett v Vice Chancellor, University of New England [2000] NSWADT 8 at [63].
55. The fifth public interest reason was that disclosure could inhibit the integrity and viability of decision-making within ASIC. Disclosure would have prejudiced the integrity of the continuing process of evaluating views of stakeholder organisations in relation to the superannuation forecasts project.[41] This too has been referred to earlier.
[41] Affidavit by Ms Cebon, ASIC, 24 November 2010, 4.
56. Counsel argued it was for ASIC to determine the scope of a project, to decide who should provide it with informal advice, and what weight to be attached to the views expressed to it. In that context counsel noted that ASIC had not been averse to hearing the views of Dr Gilligan, although he had not been approached as one of the stakeholders to be consulted during the informal consultative phase.
57. The Tribunal accepts that government should be free to evaluate views of stakeholders, and should not be inhibited from adopting views other than those expressed. To publish a possibly negative evaluation has the potential to damage relations with those stakeholders. That supports a public interest in non-disclosure of such an evaluation.
Whether exemptions sought would have an adverse effect on the conduct of the operations of ASIC (section 40(1)(d) of the Act)
58. A document may be exempt under section 40(1) ‘if its disclosure…would, or could reasonably be expected to (d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency’ (section 40(1)(d) of the Act).
59. The issue is whether disclosure would, or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of ASIC.[42] The exemption does not apply if disclosure of all or part of the document would be in the public interest.[43] The expression ‘conduct of operations’ has been interpreted broadly to include evaluations or information provided by persons or bodies outside the agency.[44] In particular, a claim for exemption has been upheld on the ground that release could jeopardise the continued cooperation of stakeholders on whom the agency depended for information.[45]
[42] Act s 40(1)(d).
[43] Act s 39(2).
[44]Re James and Australian National University (1984) 6 ALD 687 at 699; Re Public Interest Advocacy Centre and Department of Community Services (No 2) (1991) 23 ALD 714.
[45] Robinson v Director-General, Department of Health [2002] NSWADT 222.
60. A ‘substantial adverse effect’ must have a degree of gravity in its impact on an agency.[46] Any adverse impact must be ‘real or of substance as distinct from ephemeral or nominal’.[47] That impact must be one which ‘would, or could reasonably be expected’ to occur, that is, the impact is not irrational, absurd or ridiculous.[48]
[46] Harris v Australian Broadcasting Corporation (1983) 50 ALD 545 at 564 (affirmed on appeal Harris v Australian Broadcasting Corporation (1984) 5 ALD 564); Re Matthews and Australian Securities and Investments Commission [2010] AATA 649 at [73].
[47] Tillmans Butcheries Pty Ltd v Australasian Meat EmployeesUnion (1979) 27 ALR 367 at 382 per Deane J.
[48] Re Matthews and Australian Securities and Investments Commission [2010] AATA 649 at [58]-[66]; Attorney-General’s Department v Cockcroft (1986) 64 ALR 97 at 106.
61. ASIC asserted that the evidence given by Ms Cebon concerning the impact of disclosure, as discussed under the reasons relating to section 36(1), met that test.[49] ASIC also submitted that where there was evidence of a substantial adverse impact which was unchallenged, it should be accepted by the Tribunal. ASIC referred to its claim that its relationship with key stakeholders could be damaged if the document was released. That contention was conceded by Dr Gilligan in his evidence, and is one with which the Tribunal agrees.
[49] Affidavit by Ms Cebon, ASIC, 24 November 2010, 5.
62. Dr Gilligan claimed that the conduct of ASIC was not ‘proper’, since propriety encompassed integrity, fairness, diligence, competence and judgement. In his view, ASIC had not been honest in its evaluation in its published reports of the evidence provided by his company and had misrepresented these views in its published responses to his company’s submissions on CP101. In his opinion this indicated both a lack of integrity and bias on the part of ASIC. He alleged there was a lack of diligence because ASIC had not considered relevant academic theory or the implications of legislation which has an impact on forecasting superannuation benefits.
63. He suggested that the process of distilling views for senior management of ASIC had progressively diminished contrary arguments presented by stakeholders so that ultimately they had been obliterated. In his submission he also asserted that ASIC lacked the technical competence to undertake this project, and that its treatment of his evidence demonstrated poor judgement by ASIC. In addition he claimed that the fact that the review was still on foot, that it was into its second discussion paper (CP122) three years after the project had been established and that no final report had yet been published, highlighted ASIC’s inefficiency.
64. The Tribunal notes Dr Gilligan’s concerns. Nonetheless, these concerns appear to relate more to the treatment of Dr Gilligan’s submissions on the project and his perceptions of the competence and behaviour of ASIC generally as evident in its handling of the project, rather than the impact of the release of the exempt portions of Document 2. It is not apparent from his arguments that release of the exempt portions of the document to the world at large would address or even identify these issues. The relevant material would not identify ASIC’s treatment of Dr Gilligan’s submissions, it would not, since it was preparatory in nature, demonstrate lack of technical competence, nor, because it is dated April 2008, the month that the project officially commenced, would it illustrate ASIC’s dilatoriness in its conduct of the review.
65. Dr Gilligan concedes that protecting the relationship between ASIC and its stakeholders is a significant matter for the agency. Release of the views expressed at the preliminary stages in the process is likely to damage relations with the external stakeholders.
66. Consistently with its findings under section 36(1) of the Act, the Tribunal concurs with that view. In particular, since Document 2 was at a developmental stage, disclosure would or could reasonably be expected to have a substantial adverse effect on the conduct of ASIC’s operations, both in relation to its stakeholders, and in relation to senior managers within ASIC. As Deputy President Forgie said in Re Matthews in relation to senior managers:
To disclose deliberations in their developmental stages may reasonably be expected to curtail even the more robust officers from expressing their views on paper. Until the deliberation is complete, it is not necessarily possible to see how those views fit into the development of the whole.[50]
[50] Re Matthews and Australian Securities and Investments Commission [2010] AATA 649 at [324].
67. In other words, disclosure of the exempt material in Document 2 would both have a substantial adverse impact on the willingness of staff of ASIC to express their tentative views in writing, and would not enable a reader to come to a conclusion about how these preliminary views fitted into ASIC’s more mature views as demonstrated in CP101 and CP122, much less its forthcoming final paper on the topic.
68. So although Dr Gilligan’s preference is for complete transparency, given the earlier arguments, and the acceptance of the finding that release could jeopardise the continued cooperation of stakeholders on whom the agency depended for information, and the conclusion that disclosure could have a ‘substantial adverse effect on the conduct of the operations of the agency’, the Tribunal finds that this outweighs the public interest in releasing the balance of the document.
Documents affecting personal privacy (section 41 of the Act)
69. A document is exempt if its disclosure ‘would involve the unreasonable disclosure of personal information about any person’ (section 41 of the Act). ‘Personal information’ is defined as ‘any information or an opinion…about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’ (section 4 of the Act).
70. ‘Personal information’ can include simply the person’s name, provided that the information revealed something else about them.[51] In this case, disclosure of the name of a stakeholder who attended the roundtable meeting would also disclose that the person was regarded as a stakeholder by ASIC. That revelation would fall within ‘personal information’ since that expression is not confined to matters of private concern to an individual.[52]
[51] Re Veale and Town of Bassendean [1994] WAiCmr 4 at [34].
[52] Colakovski v Australian Telecommunications Corporation (1991) 23 ALD 1 at 4 (relating to the expression ‘personal affairs’ which was in the Act prior to its amendment in 1991; Re Huttner and Department of Immigration and Ethnic Affairs (1995) 38 ALD 781; Re Hanna and Australian Trade Commission [2002] AATA 624 (for the arguably broader concept of ‘personal information’ in the version of the Act under consideration).
71. ‘Unreasonableness’ in section 41 is tested against public interest considerations.[53] ASIC contended that disclosure was not relevant to the affairs of government on two grounds: disclosure was only to satisfy the curiosity of Dr Gilligan; and the material was no longer relevant since the history was that the project acquired new parameters and involved new policy following the Cooper
Review into Australia’s superannuation industry.[54] In those circumstances, it is not possible to discern the relevance to government affairs of the views expressed by the stakeholders at such an early stage in the development of the proposal.[53] Colakovski v Australian Telecommunications Corporation (1991) 23 ALD 1.
[54] J Cooper Review into the Governance, Efficiency, Structure and Operation of Australia’s Superannuation System (Cooper Review) (July 2010).
72. The information sought involves the opinion of Ms Bird whose identity is known and disclosure of whose identity would not infringe section 41. ASIC’s concern relates to disclosure of personal information of the stakeholders who provided input to ASIC at the roundtable meeting if any information about the identity of those at the meeting were disclosed. The disclosure of their names and views expressed at the roundtable is clearly personal information.
73. The reasonableness or otherwise of disclosure takes into account:
The interest that the applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. [55]
[55] Re Page and Metropolitan Transit Authority (1988) 2 VAR 243 at 245-6.
74. The first four of these factors has already been discussed in these reasons. Expressions of opinion about the views of persons expressed at the roundtable, and the views themselves, expressed as they would have been on an understanding that they would be confidential, would not be reasonable. That finding is reinforced by the finding that the current relevance to government is minimal given the change of direction of government policy following the Cooper Review.
75. In these circumstances, the decision not to release the exempt portions of Document 2 is upheld.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Professor R Creyke, Senior Member.
Signed: .....................[sgd]............................
C. Baillie, AssociateDate of Hearing 9 December 2010
Date of Decision 17 February 2011Solicitor for the Applicant Self-represented
Solicitor for the Respondent Ms Susan Williams
Australian Securities and Investment Commission
Counsel for the Respondent Ms Margaret Allars
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