Harris, Jennifer May McDonald v Australian Broadcasting Corporation

[1983] FCA 309

Re: JENNIFER MAY McDONALD HARRIS
And: AUSTRALIAN BROADCASTING CORPORATION AND KEITH CAMERON MACKRIELL AND
MICHAEL H. COSBY (1983) 78 FLR 264
No. G189 of 1983
Administrative Law - Crown

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Administrative Law - Judicial review - Freedom of Information Act - Order that access be given to third respondent to so much of interim reports as consists of "purely factual material" - Dispute as to what is "purely factual material" - Access to be given to factual material only if it is severable from its context - Categories of material which may properly be characterised as "purely factual" for purposes of order considered.

Crown - Freedom of information legislation - Right of access to interim reports investigating legal department of corporation - Grant of right to "purely factual material" - Severability from exempt material - Freedom of Information Act 1982 (Cth).

HEADNOTE

The Australian Broadcasting Corporation, after receiving a notice of intention to investigate from the Ombudsman, instituted an independent review of its legal department by a solicitor. The solicitor provided two interim reports and the third respondent was granted access, under the Freedom of Information Act 1982 (Cth), to so much of the reports as was "purely factual material".

Held: (1) Investigative material in the first interim report, consisting of the underlying facts as perceived by the solicitor, even if only provisionally found was severable from material consisting of recommendations and was "purely factual material".

(2) In so far as the second interim report contained recommendations this was not factual material and, with limited exceptions, where there were examples of factual material the same was inseverable. Therefore, apart from those exceptions, this report was not "purely factual material".

HEARING

Sydney, 1983, October 28, 31. #DATE 31:10:1983

APPLICATION.

Pursuant to an order granting general liberty to apply the parties sought further orders as to the third respondent's right of access to "purely factual material" under the Freedom of Information Act 1982.

R. D. Giles, for the applicant.

A. R. Emmett, for the first and second respondents.

The third respondent in person.

Cur. adv. vult.

Solicitors for the applicant: Minter Simpson & Co.

Solicitors for the first and second respondents: Perkins Stevenson & Linton.

BAG

ORDER

1. In accordance with order No. 2 made on 4 October, 1983 direct that the first respondent give the third respondent access to the following:

(a) the whole of the first interim report (including its annexures) other than the material contained in Division 4 Part I thereof;

(b) the material headed "Introduction" and Annexures "1" and "3" only in the second interim report.

2. Make no order as to costs.

Orders accordingly.

JUDGE1

On 4 October, 1983, for the reasons I then gave, I directed that the first respondent give the third respondent access to so much of the first and second interim reports prepared by Mahla L. Pearlman ("the reports") as consists of "purely factual material" (see order No. 2). I reserved general liberty to any party to apply. In my reasons for judgment (at p.33) I indicated that my reason for reserving general liberty to apply was that I had in mind, in particular, the possibility that a question may arise as to what is purely factual material and, if so, as to its severability from other material in respect of which access was to be given.

In the events which happened, the applicant and the first respondent were not able to agree upon what, if anything, in the reports consists of purely factual material for the purposes of the order. The third respondent was not able to be a party to the exchange of views which took place between the applicant and the first respondent because his application to be joined as a party to the proceedings was granted upon the condition that he not have access to the reports until further order. The third respondent did not object to the imposition of this condition provided it operated on an interim basis only. So that the third respondent would not be disadvantaged in the conduct of the proceedings, I decided not to look at the reports myself although they were admitted into evidence. No reference was made to the text of the reports during evidence or address in the proceedings and the direction I gave (order No. 2) was intended to have a general operation in the sense that, not having seen the reports, I was not directing my attention to any particular part of their text.

As has been said, agreement on the matter not having been reached even as between the applicant and the first respondent, the proceedings were restored to the list for further argument pursuant to the leave reserved in that behalf. At the outset, a question arose as to how this aspect of the matter should proceed having regard, in particular, to the circumstance that the third respondent had not yet seen the material to be debated.

The question has not, it would seem, previously arisen under the Freedom of Information Act, 1982, although the problem has been considered in the application of the Freedom of Information legislation in the United States: it would seem that in the United States an in camera inspection has proved a popular judicial device for differentiating between protected and unprotected materials (see "The Privilege of Self-Critical Analysis: (1983 96 Harvard Law Review 1083 at p. 1096)).

Having heard argument on the point, I was reluctant to proceed to an in camera inspection without the benefit of submissions from all parties. I therefore directed that the matter be argued in open Court but as a matter of principle by reference to categories of disputed material. I further directed that the applicant and the first respondent indicate to each other what sections of the text of the reports should, in their submission, be given to Mr. Cosby as being "purely factual material" within the terms of the order made on 4 October, 1983. I also invited counsel for the applicant and the first respondent to prepare and make available to the third respondent a document setting out the categories of disputed material as each saw it as a matter of principle so that the argument could proceed in a meaningful fashion so far as the third respondent was concerned.

A number of alternative submissions were made on behalf of the applicant. It was argued that no part of the reports could properly be described as purely factual material in that disclosure of parts only of the text would be misleading in the sense described in s.22(1)(b). It was further submitted that access should be denied to matters "found" by way of conclusion, "non-conclusions" and matters of "qualitative judgment". Hypothetical illustrations of each of these categories were given.

I have already held that a distinction is to be drawn for present purposes between purely factual material, which is of an investigative character, on the one hand and opinion, advice or recommendation, which is part of the policyforming or deliberative processes on the other hand. I have also held that access should be given to factual material only if it is severable from its context.

This was the approach taken in the passage I then cited (at p. 19 of my reasons) from Environmental Protection Agency v. Mink 410 U.S. 73 (1973) at p. 86. A similar approach was taken in Mead Data Central Inc. v. United States Department of the Air Force 566 F.2d 242 (1977) where Tamm, J. said (at p. 260):

"The focus of the FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material. It has long been a rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions. In 1974, Congress expressly incorporated that requirement into the FOIA, which now states that '(a)ny reasonably segregable portion of a record shall be provided . . . after deletion of the portions which are exempt.' 5 U.S.C. + 552(b) (Supp.V 1975)."

It would seem that the severability test which has been applied in the American courts is reflected in s.22(1)(b) of the local Act.

It is possible to discern in the first interim report two broad categories of material: first, investigative material which consists of the underlying facts as perceived by Miss Pearlman at that stage of her inquiry; secondly, material in the nature of recommendations to the first respondent which is contained in Division 4 thereof headed "Conclusions". In my view, the former category of material may properly be characterised as purely factual for the purposes of the order made. It is true that some fact-finding is involved in this category but I do not think that this circumstance alters the essential character of the material. It is also true that the views formed by Miss Pearlman on some factual questions were provisional only in the sense that the responses of the applicant to those findings were not elicited. To this extent, the views so formed could be described as provisional only. But, however tentative these views may have been, their provisional nature does not mean that the subject matter has been in any way changed: they remain factual matters, even if only provisionally found at this stage.

In the result, I am of the view that the whole of the first interim report (including its annexures) other than Division 4 thereof is purely factual material. On this view, no difficulty arises in terms of severability.

The second interim report is different in character. It consists, in the main, of a series of recommendations to the first respondent. Prima facie, therefore, it is not purely factual material, with the exception of a limited number of severable sections, namely, the section of the report headed "Introduction" and Annexures "1" and "3". Although, in the body of the report, occasional examples of factual material may be found, I do not think that it is possible to sever this material from its context and it is thus not "purely" factual.

It follows, in my opinion, that with the exception of the material headed "Introduction" and Annexures "1" and "3", no part of the second interim report consists of purely factual material.