Harshaw and Australian Competition and Consumer Commission
[2007] AATA 1895
•26 October 2007
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200500045
GENERAL ADMINISTRATIVE DIVISION ) Re: Phil Harshaw
Applicant
And: Australian Competition and Consumer Commission
Respondent
DIRECTION [2007] AATA 1895
TRIBUNAL: Mr S Penglis, Senior Member
DATE: 22 April 2008
PLACE: Perth
MATTERS NOTED:
A. The Tribunal delivered its Decision and detailed Reasons for Decision on 26 October 2007. The respondent subsequently provided to the Registrar of the Tribunal in Perth, with a copy to the applicant, a letter in the following terms:
“I refer to the decision of the Administrative Appeals Tribunal in the above matter, dated 26 October 2007 (the decision). The ACCC has carefully considered the decision and respectfully requests that the comments below be brought to the attention of Senior Member Penglis, in view of whether they should be reflected in a corrigendum to the decision.
Document 20
In paragraph 81 of the decision, the following deletions are indicated: ‘… the surname that appears after the word “Mr” on the sixth line of the first paragraph on the second page (excluding “Kelly”), the first, second and seventh line of the third paragraph on the second page and the third line of the penultimate paragraph on the second page.’ The surname in question also appears in the third line of the first paragraph on the second page, and for consistency the ACCC considers that this should also be deleted.
Document 21
In paragraph 87 of the decision, the following deletions are indicated: ‘…the initials appearing in fifth line of the first paragraph, the fifth line of the second paragraph and the third paragraph.’ The initials in question also appear in the sixth line of the second paragraph, and for consistency the ACCC considers that these should also be deleted.
Document 26
In paragraph 125(a) of the decision, the following deletions are indicated: …’ the Christian name and surname in the first line of the second paragraph’. Related initials also appear in the second line of the second paragraph, and the eighth paragraph, and for consistency with the treatment of names and initials elsewhere in the decision the ACCC considers that these should also be deleted.
In paragraph 125(b) of the decision, the following deletions are indicated: ‘…the Christian name and surname in the first line of the third paragraph’. Related initials also appear in the first line of the second paragraph, and for consistency with the treatment of names and initials elsewhere in the decision the ACCC considers that these should also be deleted.
In paragraph 125(d) of the decision, the following deletions are indicated: ‘…the “surname” before the word “family” in the first line of the fifth paragraph’. Related initials also appear in the second, third, fifth, sixth, seventh and eighth lines of the fifth paragraph, and the third line of the sixth paragraph, and for consistency with the treatment of names and initials elsewhere in the decision the ACCC considers that these should also be deleted.
Document 36
In paragraphs 159-161 of the decision, it is stated that document 36 is a duplicate of document 29, therefore the Tribunal’s findings with respect to document 29 apply to document 36, and so the reviewable decision should be set aside. However, in paragraph 135 of the decision, in relation to document 29, the Tribunal makes certain directions but otherwise affirms the reviewable decision. Accordingly, the ACCC considers that for consistency paragraph 161 should be amended to reflect paragraph 135.
Document 56
In paragraph 233(a) of the decision, the following deletion is indicated: ‘the name of the “trader” referred to therein’. Related initials and names also appear in the ‘Matter Description’ and for consistency the ACCC considers that these should also be deleted.
Document 81
In paragraph 332 of the decision, the following deletion is indicated: ‘… deleting … the “subject” line of those emails dated 14 and 30 November 2003.’ The relevant subject line also appears in the email dated 13 November 2003 and for consistency the ACCC considers that this should also be deleted.
If you wish to discuss this matter further or require anything in addition, please do not hesitate to contact me.”
B. The letter was authored by the Principal Solicitor of the respondent’s Legal Group.
C. The Tribunal has carefully considered the matters raised on behalf of the respondent against the documents and the Tribunal’s Reasons for Decision.
D. The Tribunal considers each of the comments made on behalf of the respondent to be correct and that the Tribunal’s Decision ought be corrected accordingly.
The Tribunal therefore directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
(a)by deleting “36” from paragraph (a) of the Decision and inserting “36,” between “33,” and “38” in paragraph (b) of the Decision;
(b)by inserting in paragraph 81 of the Reasons for Decision the words “in the third line of the first paragraph on the second page,” between the words “page,” and “in” in the fourth line of paragraph 81;
(c)by inserting the words “and sixth line” between the words “line” and “of” in paragraph 87(c) of the Reasons for Decision;
(d)by replacing the full stop at the end of paragraph 125(e) of the Reasons for Decision with a colon and inserting thereafter the following additional sub-paragraph:
“(f)the initials in the first line of the second paragraph, the second line of the second paragraph, the second, third, fifth, sixth, seventh and eighth lines of the fifth paragraph, the third line of the sixth paragraph and the eighth paragraph”.
(e)by deleting from paragraph 161 of the Reasons for Decision the words “the reviewable decision should be set aside” and inserting in lieu thereof the following words:
“I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with paragraph 134 of these Reasons for Decision and that the applicant be granted access to the copy:
(b)otherwise affirm the reviewable decision”.
(f)by deleting the word “sole” in the second line of paragraph 233(a) of the Reasons for Decision and inserting in the third line thereof after the word “therein” the words “as well as the names and initials appearing in the Matter Description”;
(g)by inserting “13” before ”14” in paragraph 332 of the Reasons for Decision.
……………[Sgd Mr S Penglis]………….
Senior Member
DECISION
Tribunal Mr S Penglis, Senior Member Date26 October 2007
PlacePerth
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act, 1975, in respect of the reviewable decision of the respondent dated 20 December 2004, the Tribunal:
(a) sets aside the same with respect to documents 16, 18, 22, 36 and 64 and decides in substitution therefor that such documents ought to be disclosed to the applicant;
(b) varies the same with respect to documents 2, 5, 8, 13, 20, 21, 24, 25, 26, 29, 33, 38, 40, 45, 46, 53, 54, 55, 56, 57, 59, 60, 63, 67, 70, 75 and 81 by deciding that copies of such documents be made in accordance with the Tribunal’s reasons for decision that the applicant be granted access to such copies;
(c) otherwise affirms the same on the grounds set out in the Tribunal’s reasons for decision.
.............(Sgd. S Penglis)...................
Senior Member
CATCHWORDS
Freedom of Information - applicant sought copies of documents relating to complaint made to the respondent and the respondent’s processing of the complaint – review of 46 documents claimed to be exempt on various bases – turns on its own facts
LEGISLATION
Freedom of Information Act 1902, ss9(1), 15, 22, 22(1)(b)(i), 33A(1)(a), 36, 40(1)(d), 41, 42, 42(1)(c), 42(2), 43(1), 43(1)(c)(i), 43(1)(c)(ii), 43(2)
Administrative Appeals Tribunal Act 1975, s35(2)
CASES
Seven News Ltd v News Ltd [2005] FCA 142
Zacek & Australian Postal Corporation [2002] AATA 473
Shopping Centre Council of Australia & Australian Competition Consumer Commission [2004] AATA 119
REASONS FOR DECISION
26 October 2007 Mr S Penglis, Senior Member 1. On 23 August 2004, the respondent received a request pursuant to s 15 of the Freedom of Information Act 1902 (“the Act”) from the applicant requesting copies of “all tapes, notes, files, memos in regard to Phil Harshaw and Instant Marquee Systems (Australasia) Pty Ltd 009 257 332, any and all information held by the ACCC in these matters from contact with the ACCC at various intervals”.
2. On 8 November 2004, one James Chisholm of the respondent wrote to the applicant advising of his decision in relation to the documents. It was determined that access to 10 documents and part access to 28 documents would be granted. It was further determined that access to 43 documents would be refused.
3. On 19 November 2004, the applicant wrote to the respondent requesting an internal review of the decision.
4. On 20 December 2004, one Bruce Brown of the respondent wrote to the applicant advising of his decision in relation to the internal review of the documents. Mr Brown varied the original decision in respect of 9 documents. He granted the applicant part-access to 3 of the 9 documents subject to review and varied the reasons for the original decision in relation to 6 other documents. Mr Brown re-affirmed the original decision in relation to the other 40 documents.
5. In doing so, Mr Brown relied on various provisions of the Act including s 22 (deletion of exempt matter or irrelevant material), s 33A(1)(a) (documents affecting relations with the States), s 36 (Internal working documents), s 40(1)(d) (documents concerning certain operations of agencies), s 41 (documents affecting personal privacy), s 42 (documents subject to legal professional privy) and s 43(1)(c)(i) (documents relating to business affairs etc).
6. In February 2005 the applicant filed an application with the Tribunal to review the decision dated 20 December 2004.
7. Copies of each of the documents in respect of which access has been refused to the applicant, either in whole or in part, were provided to the Tribunal on a confidential basis. To ensure that the confidentiality of the documents so provided is maintained, the Tribunal will make an order pursuant to s 35(2) of the Administrative Appeals Act 1975, as part of its decision.
8. It therefore falls for the Tribunal to consider each of the documents in respect of which the applicant has been denied access (either in whole or in part) to determine whether the basis for the decision to deny applicant such access has been made out.
9. Each of the documents were ascribed a number. Those numbers were used to identify the documents for the purpose of the original decision and the review decision. The same numbering was used for the purpose of the hearing before the Tribunal. Accordingly, the same document numbering is used for the purpose of these reasons for decision.
The Act
10. Section 22 of the Act provides as follows:
“(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;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
(2)Where access is granted to a copy of a document in accordance with subsection (1):
(a) the applicant must be informed:
(i) that it is such a copy; and
(ii) of the ground for the deletions; and
(iii) if any matter deleted is exempt matter because of a provision of this Act—that the matter deleted is exempt matter because of that provision; and
(b)Section 26 does not apply to the decision that the applicant is not entitled to access to the whole of the document unless the applicant requests the agency or Minister to furnish to him or her a notice in writing in accordance with that section.”
11. Section 36 of the Act provides as follows:
“(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.
(2)In the case of a document of the kind referred to in subsection 9(1), the matter referred to in paragraph (1)(a) of this section does not include matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1).
(3) …
(4) …
(5) This section does not apply to a document by reason only of purely factual material contained in the document.
(6) This section does not apply to:
(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b) reports of a prescribed body or organization established within an agency; or
(c)the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.
(7) Where a decision is made under Part III that an applicant is not entitled to access to a document by reason of the application of this section, the notice under section 26 shall state the ground of public interest on which the decision is based.
(8) …
(9) …
(10) …”
12. Section 40 of the Act relevantly provides as follows:
“(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) …
(b) …
(c) …
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or
(e) …
(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.”
13. Section 41 of the Act relevantly provides as follows:
“(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
(3) Where:
(a) a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person; and
(b)it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant's physical or mental health, or well-being;
the principal officer or Minister may, if access to the document would otherwise be given to the applicant, direct that access to the document, so far as it contains that information, is not to be given to the applicant but is to be given instead to a qualified person who:
(c)carries on the same occupation, of a kind mentioned in the definition of qualified person in subsection (8), as the first-mentioned qualified person; and
(d) is to be nominated by the applicant.
(4) Subject to subsection (5), where:
(a) access to a document has been given to a person; and
(b)the document contains personal information of a medical or psychiatric nature, about the person that has been provided by, or has originated from, a qualified person acting in his or her capacity as a qualified person; and(c) access was not given with the qualified person's knowledge;
the principal officer or Minister (as the case may be) must notify the qualified person that access to the document has been so given.
(5) Subsection (4) does not apply if it is not reasonably practicable to notify the qualified person.
(6) Without limiting the matters that may be considered in deciding whether it is not reasonably practicable to notify the qualified person, consideration is to be given to:
(a)the length of time since the information was provided by, or originated from, the qualified person; and
(b)the likelihood that the qualified person is still carrying on the same occupation; and
(c)the frequency with which, but for subsection (5), the principal officer or Minister would be required to make notifications under subsection (4); and
(d)the resources available to make such notifications.
(7) The powers and functions of the principal officer of an agency under this section may be exercised by an officer of the agency acting within his or her scope of authority in accordance with arrangements referred to in section 23.
(8) In this section:
qualified person means a person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well-being, and, without limiting the generality of the foregoing, includes any of the following:
(a) a medical practitioner;
(b) a psychiatrist;
(c) a psychologist
(d) a marriage guidance counsellor;
(e) a social worker”.
14. Section 42 of the Act provides as follows:
“(1)A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2) A document of the kind referred to in subsection 9(1) is not an exempt document by virtue of subsection (1) of this section by reason only of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1)”.
15. Section 9(1) of the Act provides as follows:
“This section applies, in respect of an agency, to documents that are provided by the agency for the use of, or are used by, the agency or its officers in making decisions or recommendations, under or for the purposes of an enactment or scheme administered by the agency, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or may be entitled or subject, being:
(a) manuals or other documents containing interpretations, rules, guidelines, practices or precedents including, but without limiting the generality of the foregoing, precedents in the nature of letters of advice providing information to bodies or persons outside the Commonwealth administration;
(b) documents containing particulars of such a scheme, not being particulars contained in an enactment as published apart from this Act;
(c) documents containing statements of the manner, or intended manner, of administration or enforcement of such an enactment or scheme; or
(d)documents describing the procedures to be followed in investigating breaches or evasions or possible breaches or evasions of such an enactment or of the law relating to such a scheme;
but not including documents that are available to the public as published otherwise than by an agency or as published by another agency.”
16. Section 42(1)(c) of the Act relevantly provides as follows:
“A document is an exempt document if its disclosure under this Act would disclose:
(a) …;
(b) …; or
(c) information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:
(i) the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or
(ii)the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency”.
17. Section 43 (1) and (2) of the Act provides:-
(1) A document is an exempt document if its disclosure under this Act would disclose:
(a) trade secrets;
(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or
(c) information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information :
(i) the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or
(ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.
(2) The provisions of sub-section (1) do not have effect in relation to a request by a person for access to a document:
(a) by reason only of the inclusion in the document of information concerning that person in respect of his business or professional affairs;
(b) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an organization where the person making the request is the organization or a person acting on behalf of the organization.
Document 2
18. This document is an email from an employee of the respondent to another employee of the respondent dated 16 September 1999. It sets out a summary of a telephone conversation that one of the employee’s had with a third party.
19. The applicant was denied access to this document on the basis that it is an exempt document.
20. The respondent relies upon s 41 and s 43(1)(c)(i) of the Act.
21. As was submitted by Ms Stuckey-Clarke, Counsel for the respondent, I find that the email contains personal information of the third party revealing the identity of the person, the profession of the person, and the nature of the person’s relationship with another party.
22. I also find that disclosure of such information would be unreasonable in the circumstances: given the nature of the communication, it is readily inferred that the third party proceeded on the basis that the third party’s identity would be kept confidential and would not be disclosed to the applicant.
23. It was submitted on behalf of the respondent that “even if the document was to be redacted and the identity of the person masked, the document would still contain information which enable the identity and the business concerns of the person to be ascertained. The dealing of the parties with the applicant cannot be separated so it is not possible to provide the applicant with information which relates solely to him”.
24. I do not accept that submission. I am of the view that, pursuant to s 22 of the Act, it is possible to make a copy of the document with such deletions that the copy would not be an exempt document, and that it is reasonably practicable to do so.
25. I find that a copy of the document with the following deletions would not be an exempt document, namely deleting:
(a)all names of persons, companies and organisations other than those of the applicant and the respondent;
(b)the second sentence of the first paragraph;
(c)the words in parenthesis in the second paragraph;
(d)the whole of the third paragraph;
(e)the second sentence of the fifth paragraph;
(f)the final sentence of the penultimate paragraph.
26. As for s 43(1)(c)(i), I do not consider the content of this email to constitute information the disclosure which would, or could reasonably be expected to, unreasonably affect any party adversely in respect of his or her lawful business, commercial, professional or financial affairs. I do not consider the email exempt pursuant to s 43(1) of the Act.
27. It follows that, with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these reasons for decision, and that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 5
28. This document is an email 4 September 1999 from Mr Hank Spier of the ACCC to Ms Lynda Carbone of the ACCC. The subject of the email is “FW: Compliant re Perth Office”. This email is a “forwarded” email that contains six separate messages. Attached to the email is a file note dated 3 September 1999 of a conversation between the applicant and Ms Ritson of the ACCC.
29. Part of the document has been released to the applicant, but the applicant was denied access to the balance on the basis that it is an exempt document.
30. The respondent relies upon s 36 and s 41 of the Act.
31. It was submitted on behalf of the respondent that the relevant parts of the document “record the process of deliberation by which ACCC staff conducted their investigation in respect of the subject complaint made by the applicant”. It was submitted that “parts of the emails to which access has been denied to the applicant contain the opinion and advice of staff in respect to this complaint”. It was submitted “the issues discussed are not merely factual in nature, nor are they administrative. The communications reveal the thinking of the staff in response to the matter with which they are dealing”. It was submitted “that there is a strong public interest in ACCC staff being able to continue to communicate with each other and record complaints received by ACCC in a frank manner. It would be contrary to the public interest if the ACCC were required to change its operation, and develop a cultural risk adversity in such communications for fear of the nature of those complaints being disclosed”.
32. Whilst I accept that there is a strong public interest in ACCC staff being able to communicate with each other in a frank manner and that it would be contrary to the public interest if the ACCC were required to change its operations, and developing a cultural risk adversity in such communications for fear of the nature of those complaints being disclosed, I am not satisfied that all of the non-disclosed parts of document 5 fall within the first limb of s 36. I find that parts of the non-disclosed portions of the document are factual in nature whereas other parts do reveal the thinking of the staff in response to the factual matters reports.
33. In respect to s 41 it was submitted that this document contains personal information in respect of several individuals, which information reveals the profession of these people and their various relationships to each other and makes allegations about a specific group of individuals the subject of the complaint, which individuals have not been given the opportunity to respond to such allegations. Having carefully considered document 5, I uphold those submissions on behalf of the respondent.
34. I have further concluded, however, that, pursuant to s 22 of the Act, it is possible to make a copy of the document with deletions such that the copy would not be an exempt document, and that it is reasonably practicable to do so.
35. I find that a copy of the document with the following deletions would not be an exempt document, namely deleting :
(a)all names of persons other than the applicant;
(b) the first paragraph of the email sent at 2:06pm on Friday, 3 September 1999 from Stuart Smith to, inter alia, Hank Spier;
(c)the third paragraph of the email from Stuart Smith to Stephanie Velduns on the second page of the document.
36. It therefore follows, with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these reasons for decision, and that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 8
37. This document is accurately described in the respondent’s written submissions as “a letter, undercover of facsimile, dated 5 January 1998 from Mr Larry Kelly of the ACCC to an employee of Coca-Cola. The subject of the letter is “Coca-Cola Gold Rush Promotion”.
38. The applicant was denied access to this document on the basis that it is an exempt document.
39. The respondent submits that Coca-Cola objects to the ACCC granting the applicant access to the document on the grounds that its release could reasonably be expect to adversely affect Coca-Cola in respect of its lawful business affairs as it would make public information raising allegations that Coca-Cola breached the Trade Practices Act (TPA), when in fact, after investigations by the ACCC were carried out, no such breach was established. It was therefore submitted that the document is exempt from release under s 43(1)(c)(i) of the Act.
40. The letter is, in effect, in four parts. The first is to communicate the receipt of a complaint. The second is to express a possible view. The third is a statement of the respondent’s general position (without reference to the specific complaint). The fourth is to provide Coca-Cola with an opportunity to comment and provide certain information.
41. I find that only the second part of the document, namely the words between “on 24 December 1997” in the third paragraph and “the Commission has” on page 2, can properly be described as information falling within s 43(1)(c)(i) of the Act.
42. I find that, pursuant to s 22 of the Act, it is possible to make a copy of the document which such deletions that the copy would not be an exempt document, and that it is reasonably practicable to do so.
43. I find that a copy of the document with the following deletions would not be an exempt document, namely deleting;
(a)everything between “on 24 December 1997” in the third paragraph and “the Commission has” in the first full paragraph on the second page.
(b)the words between “this letter is” and “to provide” in the penultimate paragraph of the letter.
44. It therefore follows that, with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these reasons for decision, and that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 14
45. This document is accurately described in the respondent’s written submissions as “a letter, undercover of facsimile, from an employee of Coca-Cola to Mr Kelly. The subject of the letter is “Coca-Cola Gold Rush promotion: Your Ref: MARS21716”. The letter encloses a number of attached documents”.
46. The applicant was denied access to this document on the basis that it is an exempt document.
47. The respondent relies upon s 41 and s 43(1)(c)(i) and (ii).
48. It is evident that the document contains personal information within the meaning of s 41 of the Act.
49. It was submitted that the document contained “commercially sensitive information regarding its lawful business and commercial affairs in order to assist the ACCC with its enquiries. The disclosure of this information could reasonably be expected to unreasonably affect Coca-Cola adversely in respect of its business affairs as its disclosure would allow Coca-Cola’s competitors to obtain details of its media buying activities and make public Coca-Cola’s marketing strategies in regard to its promotional activities.”
50. Notwithstanding that I accept that the disclosure under the Act of this document would disclose information concerning Coca-Cola’s business, commercial or financial affairs, I am not satisfied that the document contains any material of the nature alleged on behalf of the respondent. Even if it did, the document is 9 years old and would now have little, if any, relevance to Coca-Cola’s present activities. I therefore do not accept the disclosure of this information would or could reasonably be expected to unreasonably affect Coca-Cola adversely in respect of its lawful business, commercial or financial affairs. I therefore I do not uphold the reviewable decision with respect of s 43(1)(c)(i).
51. The issue with respect to s 43(1)(c)(ii) is whether the disclosure of the information “could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth … or the administration of matter administered by an agency”. This was the primary ground relied upon by the respondent in its written submissions.
52. Those submissions were as follows:
“The Commission relies heavily on information being received on a voluntary basis by industry to assist in carrying out its function. The parties who have provided information to Coca-Cola, who in turn (have)(sic) provided this to the Commission, would not be so forthcoming in the future, as this information would potentially be available to their competitors are disclosed. … There would be a real likelihood that not only does this pertain to Coca-Cola but also industry in general would be reluctant to provide the ACCC with information and assist it with its enquiries if documents of this nature were disclosed. In turn, any diminution in the supply of information to the ACCC would result in a need for much greater spending of public monies by the ACCC to gather its only intelligence. This information would not be as good as actual industry – specific information and ultimately result in inefficiencies regarding the resolution of complaints …. The ACCC does have power under section 155 of the TPA to compel the provision of information. However, those powers are not expressed in absolute terms and do not cover the full range of functions of the ACCC. Because of the degree of specificity required in a notice of subsection 155(1), it is necessary for the ACCC to have an understanding of the information or a recipient is likely to have which would be relevant or able to be used by the ACCC in investigating a possible contravention of the TPA. Without that reasonable level of understanding and knowledge, the ACCC would have difficulty in framing the questions to obtain the appropriate information ….”.
53. I accept those submissions.
54. Given my findings with respect to s 43(1)(c)(ii), I further find it is not possible to make a copy of the document with such deletions that the copy would not be an exempt document within the meaning of s 22 of the Act.
55. It therefore follows that, with respect to this document, I affirm the reviewable decision.
Document 13
56. This document is a duplicate of the letter dated 5 February 1998 which is document 14, save that it also includes a “facsimile transmission” sheet.
57. It therefore follows that my findings with respect of document 13 apply to document 14, save and except for the facsimile transmission sheet. As to that document, there are two names which would attract the operation of s 41 of the Act, but otherwise I see no reason why a copy of the document cannot be made with such deletions that the copy would not be an exempt document within the meaning of s 22(1)(b)(i) of the Act and that it is practicable to do so.
58. It therefore follows that, with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made deleting the two names on the first page and the contents of all pages which follow, and that the applicant to be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 16
59. This document is accurately described in the respondent’s written submissions as “a letter, under cover of a facsimile, dated 16 March 1998, from Mr Kelly to an employ of Coca-Cola”. The subject of the letter is “Coca-Cola Gold Rush promotion”.
60. The applicant was denied access to this document on the basis that it is an exempt document.
61. The respondent relies upon s 43(1)(c)(i) of the Act.
62. In this regard it was submitted that “Coca-Cola objects on the grounds that the release of this document could reasonably be expected to adversely affect Coca-Cola in respect of its lawful business affairs as it would make public information that raises allegations that Coca-Cola breached the TPA, when in fact, after investigations by the ACCC were carried out, no such breach was established. The document would also make public information to Coca-Cola’s competitors about its internal procedures and marketing strategies in regard to consumer promotions”.
63. I do not accept the submission. Whilst I accept that disclosure of this document under the Act would disclose information concerning business, commercial or financial affairs of Coca-Cola, I do not accept that the disclosure of information would, or could reasonably to expected to, unreasonably affect Coca-Cola adversely in respect of its lawful business, commercial or financial affairs. The letter sets out the respondent’s comments and findings with respect to the applicant’s complaint. I see nothing in that letter which if disclosed, would, or could reasonably by expected to, unreasonably affect Coca-Cola’s lawful business, commercial or financial affairs. I would reach that conclusion even if the letter was of recent origin. My conclusion, however, is reinforced by the fact that the letter is over 9 years old.
64. It therefore follows that, with respect to this document, the reviewable decision should be set aside.
Document 18
65. As is accurately stated in the respondent’s written submissions, this document is a file note dated 29 July 1998 by Mr Kelly. The subject of the file note is “Coca-Cola”.
66. Part of the document has been released to the applicant. The applicant has been denied access to the balance of the document on the basis that it is an exempt document.
67. The respondent relies upon s 40(1)(d) and s 43(1)(c)(i) of the Act.
68. What has been denied of the applicant is the matter number of the file note and two paragraphs of the note itself.
69. As part of the note has already been disclosed to the applicant, I can state in these reasons that it is a file note of a telephone conversation between Mr Kelly and the applicant on 27 July 1998.
70. The entire note constitutes a factual notation of what the applicant said to Mr Kelly and what Mr Kelly said to the applicant. There are no names referred to in the two paragraphs which have been kept from the applicant that are not mentioned elsewhere in the document. It is not apparent to me why the matter number has been deleted.
71. I therefore find that nothing in the parts of this document that have been denied of the applicant fall within s 40(1)(d) or 43(1)(c)(i) of the Act.
72. It therefore follows that, with respect to this document, the reviewable decision should be set aside.
Document 20
73. This document is accurately described in the respondent’s written submissions as “a file note dated 29 July 1998 by Mr Scott Gregson of the ACCC”. The subject of the file note is “Coca-Cola”.
74. Again, part of this document has been released to the applicant, with the remainder said to be exempt from release.
75. The respondent relies upon s 41 and s 43(1)(c)(i) of the Act.
76. As part of this document has already been provided to the applicant, I can state that it is a file note prepared by Mr Gregson of a telephone conversation he had with the applicant on 29 July 1998.
77. With respect to s 41, it is submitted that the part of document which has been denied of the applicant “contains personal information in respect of natural person about whom much is discussed. The information reveals the person’s identity, the nature of the person’s work and the person’s employer. Disclosure of this document would involve the unreasonable disclosure of personal details of the person in question. The document contains information going beyond work-related matters and makes reference to the private characteristics and disposition of the individual concerned. Allegations are made about this person that are of a serious nature that cannot be considered lightly. It is submitted that the disclosure of the allegations would be of considerable concern to the person should the information be disclosed, and that it would be unreasonable in the circumstances to disclose this information”.
78. I consider that submission to be clearly borne out by that part of the document that has been denied of the applicant.
79. As to s 43(1)(c)(i), the document contains no information concerning the business and commercial affairs of Coca-Cola, but rather a summary of what the applicant himself has alleged against Coca-Cola. I fail to see how the disclosure of such information back to the applicant would, or could reasonably be expected to, unreasonably affect Coca-Cola adversely in respect of its lawful business, commercial or financial affairs. Accordingly, insofar as the reviewable decision finds that part of the document which has been denied of the applicant exempt pursuant to s 43(1)(c)(i), it ought not be upheld.
80. I find that, pursuant to s 22 of the Act, it is possible to make a copy of the document with such deletions, namely the name of the third person to which repeated reference is made, that the copy would not be an exempt document, and that it is reasonably practicable to do so.
81. I find that a copy of the document with the following deletions would not be an exempt document, namely deleting the christian and surname that follows after the word “Mr” in the second line of the first paragraph on the second page, in the first line of the second paragraph on the second page, in the fifth line of the third paragraph, on the second page and the surname that appears after the word “Mr” on the sixth line of the first paragraph on the second page (excluding “Kelly”), the first, second and seventh lines of the third paragraph on the second page and the third line of the penultimate paragraph on the second page.
82. It therefore follows that, with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these reasons for decision, and that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 21
83. As part of this document has been made available to the applicant, I can state that it is a file note prepared by Lee Hollis of a telephone call received from Scott Gregson, both being from the respondent’s office, advising that the applicant wished to speak with Hollis and stating Gregson’s belief that the applicant “was going to make a complaint”. It is also evident from that part of the note disclosed to the applicant that it deals with a conversation between Lee Hollis and the applicant.
84. The applicant has been denied access to the document on the basis that it is an exempt document.
85. The respondent relies upon s 41 of the Act.
86. The note refers to an individual and an organisation by name. The individual is also referred to by reference to that person’s initials. It is therefore clear that the document contains “personal information” within s 41 of the Act, but that it is possible to make a copy of the document with such deletions that the copy would not be an exempt document, and that it is practicable to do so.
87. I find that a copy of the document with the following deletions would not be an exempt document, namely deleting:
(a)the words in the fourth line of the note between “about” and “to” and the words in the second line of the second paragraph of the note between the words “about” and “SG”;
(b) the christian name and surname appearing in the fourth line of the first paragraph and the third line of the second paragraph, and the surname appearing in the fourth line of the second paragraph; and
(c)the initials appearing in fifth line of the first paragraph, the fifth line of the second paragraph and the third paragraph.
88. It therefore follows that, with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these reasons for decision and that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 22
89. This document is accurately described in the respondent’s written submissions as “a file note dated 29 July 1998 by Mr Hollis. The subject of the file note is ‘complaint by Mr Phil Harshaw’.”
90. The applicant was denied access to this document on the basis that it is an exempt document.
91. The respondent relies upon s 36 of the Act.
92. As is stated in the respondent’s written submissions “Ms Hollis has prepared and recorded her opinion and advice providing a recommendation in respect of a course of action to be taken in regard to an internal matter of concern to the ACCC. The opinion, advice and recommendation made are recorded in a frank and decisive manner”.
93. I find that the note is in two parts. The first is purely factual and cannot be properly described as the preparation or recording of an opinion or advice, or providing a recommendation.
94. The second part records advice given by one party to a conversation to the other party to a conversation arising out of the purely factual material contained in the first part of the document.
95. I do not find the statements made therein disclose any matter in the nature of or relating to opinion, advice or recommendation prepared or recorded for consultation or deliberation taking place in the course of, or for the purposes of, deliberative processes involved in the functions of the respondent.
96. In any event, even if it did, I am not persuaded by the respondent’s submission that the disclosure of the document would be contrary to the public interest by inhibiting staff from making well-informed decisions and obtaining and recording all information in carrying out their role within the ACCC. The suggestion that, somehow, a government agency would not conduct itself in a prudent and efficient way for fear of its own communications being made available to the public pursuant to Freedom of Information legislation is one that this Tribunal does not accept.
97. It therefore follows that, insofar as concerns this document, the reviewable decision should be set aside.
Document 23
98. As this document has been made available to the applicant save for one paragraph, I can state that it is a file note prepared by Lee Hollis of the respondent dated 30 July 1998 and headed “complaint by Mr Phil Harshaw”.
99. It is in two parts. The first relates to a telephone conversation between the author and Larry Kelly. The second relates to a telephone conversation on the same date between the author and Scott Gregson. It is the second paragraph of the document relating to the author’s telephone conversation with Larry Kelly that has been refused of the applicant. In so doing, the respondent relies upon s 36 and s 41.
100. As for s 36, I accept that the paragraph in question, by its nature, one that falls within s 36 of the Act in that it would not be in the public interest for the applicant to be required to disclose communications between two officers of the respondent relating to their consideration of a complaint.
101. I also accept that the relevant paragraph contains the name of an organisation which falls within s 41 of the Act.
102. Whilst it is possible to make a copy of the document with appropriate deletions with respect to the personal information contained in the document, given the nature of the exemption pursuant to s 36, I find it is not possible to make a copy of the document with such deletions that the copy would not be an exempt document within the meaning of s 22(1)(b)(i) of the Act.
103. It therefore follows that, with respect to this document, the reviewable decision should be affirmed.
Document 24
104. This document is accurately described in the respondent’s submissions as “a file note dated 31 July 1998 by Ms Hollis”. The subject of the file note is “compliant by Mr Phil Harshaw”.
105. The applicant was denied access to the document on the basis that it is an exempt document.
106. The respondent relies upon by s 36 and s 41 of the Act.
107. The respondent’s submission is that “this document is an internal working document which contains opinion and personal information about specific individuals internal to the ACCC about whom comments are made. The submissions in respect of documents 22 and 23 are repeated here.”
108. I find that this document does not disclose any matter to which s 36(1)(a) applies. Furthermore, even if it did, I find that the disclosure of such a document would not be contrary to the public interest.
109. The document clearly contains names of persons other than the applicant the author and therefore it is exempt from release under s 41 of the Act.
110. However, I find that, pursuant s 22 of the Act, it is possible to make a copy of the document with such deletions that the copy would not be an exempt document, and that it is reasonably practicable to do so.
111. I find that a copy of the document deleting the christian names and surnames in the first and third lines of the document (other than that of the applicant), as well as the initials contained in the third line of the document, would not be an exempt document.
112. It therefore follows that, with respect of this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these reasons for decision and that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 25
113. This document is accurately described in the respondent’s written submissions as “a file note dated 3 August 1998 by Ms Hollis. The subject of the file note is “’complaint by Mr Phil Harshaw’.”
114. The applicant was denied access to this document on the basis that it is an exempt document.
115. The respondent relies upon s 41 of the Act.
116. The document clearly contains a surname and the name of an organisation. The document is therefore exempt from release under s 41 of the Act.
117. However, I find that, pursuant to s 22 of the Act, it is possible to make a copy of the document with such deletions that the copy would not be an exempt document, and that it is reasonably practicable to do so.
118. I find that a copy of the document deleting the Christian name and surname in the first line under the date and the name of the organisation referred to in the second line under the date would not be an exempt document.
119. It therefore follows that, with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these reasons for decision and that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 26
120. This document is accurately described in the respondent’s written submissions as “a file note dated 29 July 1998 by Ms Hollis. The subject of the file note is ‘complaint by Mr Phil Harshaw’.”
121. The applicant was denied access to this document on the basis that it is an exempt document.
122. The respondent relies upon s 41 of the Act.
123. The document clearly contains personal information relating to natural persons within the meaning of s 41 of the Act.
124. However, I find that, pursuant to s 22 of the Act, it is possible to make a copy of the document with such deletions that the copy would not be an exempt document, and that it is reasonably practicable to do so.
125. I find that a copy of the document with the following deletions would not be an exempt document, namely deleting:
(a)the christian name and surname in the first line of the second paragraph;
(b)the christian name and surname in the first line of the third paragraph;
(c)the christian name in the first line and the surname in the second line of the fourth paragraph;
(d)the “surname” before the word “family” in the first line of the fifth paragraph;
(e)the name of an organisation in the penultimate line of the fifth paragraph.
126. It therefore follows that, with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these reasons for decision, and that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 29
127. This document is accurately described in the respondent’s written submissions as “an email dated 13 August 1998 from Mr Kelly to Ms Hollis. The subject in the email is “Mr Harshaw”. This email is a response to an email dated 13 August 1998 from Ms Hollis to Mr Kelly which is incorporated in the document”.
128. The applicant was denied access to this document on the basis that it is an exempt document.
129. The respondent relies upon s 36, s 41 and s 43(1)(c)(i) of the Act.
130. I find this document to be no more than the communication by Ms Hollis to Mr Kelly of a telephone conversation between herself and the applicant on 13 August 1998, and Mr Kelly’s acknowledgement of the same. I do not find such a document to fall within s 36(1)(a) of the Act. Even if it did, I find that there is nothing of the document the disclosure of which would be contrary to the public interest.
131. Moreover, whilst there are references to a third party organisation, I find such references do not constitute information of the nature to which s 43(1)(c)(i) applies.
132. I find that the document does contain personal information relating a person other than the applicant to which s 41(1) of the Act applies.
133. However, I find that, pursuant to s 22 of the Act, it is possible to make a copy of the document with such deletions that the copy would not be an exempt document, and that it is reasonably practicable to do so.
134. I find that a copy of the document deleting:
(a)the christian name and surname in the first line of the paragraph commencing “PH asked”;
(b)the initials which appear in the second line of the paragraph commencing “PH asked”;
(c)the words between “with” and “was” in the second line of the paragraph commencing “he is unhappy”;
(d)the letters appearing between the words “time” and “has” in the first line and the words “what” and “says” in the second line of the paragraph commencing “This is not”
will not be an exempt document.
135. It therefore follows that, with respect of this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these reasons for decision and that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 33
136. This document is accurately in the respondent’s written submissions as “an ACCC internal data base extract printed out on 27 July 1998”.
137. Part of this document has been released to the applicant, with the balance claimed to be exempt.
138. The respondent relies upon s 40(1)(d), s 41 and s 43(1)(c)(i) of the Act.
139. The document is clearly an internal document. It is headed “Australian Competition and Consumer Commission: MARS matter summary for matter number …”. What follows is information such as the “matter ID”, the complainant’s name and address, phone and fax contacts, method of contact, who created the matter, the complaint date, the file reference, whether or not the complainant is a small business or is about a small business, what the complaint is about and other matters. It is in the context of the disclosure of such parts of the document to the applicant that the balance of the respondent’s submissions are to be considered.
140. I find there is no basis to contend that the matter number is an exempt matter pursuant to any of the sections of the Act upon which the respondent seeks to rely.
141. I otherwise find that the balance of the document is, by its nature, material that is exempt from release under the sections of the Act upon which the respondent relies.
142. It therefore follows that, with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a further copy of the document be made identifying the matter number where it appears twice in the document and that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 34
143. This document is accurately described in the respondent’s written submissions as “an email dated 3 August 1998 from a member of staff of the ACCC to Ms Hollis. The email incorporates another email, which is dated 3 August 1998 from Ms Hollis to the staff member”.
144. Part of this document has been released to the applicant, with the balance claimed to be exempt
145. The respondent relies upon s 41 of the Act.
146. The respondent submits that the part of the document to which access has been denied contains personal information in respect of a natural person and which information is not related to the work of the staff member and disclosure of which information would be unreasonable in the circumstances as it provides no demonstrable relevance to the affairs of government or the ACCC.
147. Having considered the document, I find that the part of the document which has not been released to the applicant constitutes personal information within the meaning of s 41 of the Act, disclosure of which would be unreasonable.
148. I am satisfied that such parts of the document as can be made available to the applicant pursuant to s 22 of the Act have been made available.
149. It therefore follows that, in respect of this document, the reviewable decision should be affirmed.
Document 35
150. This document is accurately described in the respondent’s written submissions as “an email dated 3 August 1998 from Ms Hollis to a staff member of the ACCC”. The email incorporates two other emails with written annotations.
151. The applicant was denied access to this document on the basis that it is an exempt document.
152. The respondent relies upon s 36 and s 41 of the Act.
153. On behalf of the respondent, it was submitted that the balance of this document would disclose opinion and advice recorded in the course of the deliberative processes involved in the functions of the ACCC. It was submitted that the communication records the process of deliberation by which ACCC staff conducted their investigation in respect of the subject. It was further submitted that the document reveals the thinking of the staff in response to the matter with which they were dealing.
154. Having regard to the email exchange which comprises the document, as well as the hand-written notes and annotations, I have no hesitation in upholding the respondent’s submission.
155. In the same way, I have no hesitation in upholding the respondent’s submission that there is a strong public interest in ACCC staff being able to communicate with each other and record information about the complaints received by the ACCC in a frank manner and that it would be contrary to the public interest if documents such as this were required to be disclosed pursuant to the Act.
156. I also uphold the respondent’s submission that the document contains personal information in relation to the nature person referred to in document 20 and that such information goes beyond work-related matters and relates to the characteristics of the individual concerned.
157. By reason of upholding the claim for exemption pursuant to s 41, I am satisfied that is it not possible to make a copy of the document with such deletions that the copy would not be an exempt document within the meaning of s 22(1)(b)(i) of the Act.
158. It therefore follows that, with respect to this document, the reviewable decision should be affirmed.
Document 36
159. Document 36 is a duplicate of document 29.
160. The Tribunal’s findings with respect to document 29 therefore apply to document 36.
161. It therefore follows that, with respect of this document, the reviewable decision should be set aside.
Document 38
162. This document is accurately described in the respondent’s written submissions as “a file note dated 13 August 1998 by Ms Hollis”. The subject of the file note is “Re: Complaint by Mr Phil Harshaw” and is a record of a conversation Ms Hollis had with the applicant. However, there is a second part to the document , in which Ms Hollis records the contents of a conversation with another employee of the respondent.
163. The applicant was denied access to this document on the basis that it is an exempt document.
164. The respondent relies upon s 36, s 41 and s 43(1)(c)(i) of the Act.
165. I find this document to be no more than a file note of a telephone conversation between the applicant and Ms Hollis and the conversation between Ms Hollis and an employee of the respondent in which Ms Hollis communicated to that employee comments made to Ms Hollis by the applicant.
166. For the same reasons that I have given in respect to such documents as document 29, I do not find this document to be of a nature referred to in s 36 or s 43(1)(c)(i) of the Act. Further as to s 36 of the Act, I find that it would not be contrary to the public interest to disclose the document.
167. The document clearly contains information of a nature to which s 41 of the Act applies. However, I find that, pursuant to s 22 of the Act, it is possible to make a copy of the document with such deletions that the copy would not be an exempt document, and that it is reasonable practicably to do so.
168. I find that deleting the following information would not be an exempt document, namely:
(a)the words between “date” and “had” in the first line of the second paragraph;
(b)the words between “telephone” and “and” in the first line of the third paragraph, as well as the initials referred to in that line;
(c)the initials referred to in the third line of the third paragraph.
169. It therefore follows that, with respect to this document, I:
(a) direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these reasons for decision that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 40
170. This document is accurately described in the respondent’s written submissions as “a file note dated 14 August 1998 by Ms Hollis”. The subject of the file note is “Re: Complaint by Mr Phil Harshaw” and is a record of a further conversation Ms Hollis had with the applicant.
171. Part of the document has been released to the applicant, but it is submitted on behalf of the respondent that the remainder of the document is exempt from release.
172. The respondent relies upon s 36, s 41 and s 43(1)(c)(i) of the Act.
173. With respect to this document, the respondent has repeated its submissions made with respect of Document 38.
174. For the same reasons as given with respect of Document 38 (and such other documents as Document 29), I find that the document is nothing more than a file note of a conversation between Ms Hollis and the applicant. Accordingly, I do not find the document exempt other than to the extent that it relates to a person other than the applicant and Ms Hollis and insofar as it records allegations made by the applicant about third parties.
175. I find it is possible to make a copy of the document with such deletions, that the copy would not be an exempt document and that it is practicable to do so.
176. I find that a copy of the document with the following deletions would not be an exempt document, namely deleting:
(a)the balance of the first sentence of the third paragraph after the word “that”’;
(b)everything after the word “complaints” in the fifth line of the fourth paragraph;
(c)the christian name and surname and the initials contained in the penultimate paragraph;
(d)the words in the ultimate paragraph between “satisfied” and “he”.
177. It therefore follows that, with respect to this document, I:
(a) direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these reasons for decisions and that the applicant be granted access to the copy;
(b) otherwise affirm the reviewable decision..
Document 45
178. This document is a duplicate of Document 5, except the file note mentioned in the document is not attached and there are no written annotations on the document.
179. It therefore follows that, for the reasons I have given with respect to Document 5, I:
(a) direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these Reasons for Decision relating to Document 5 and that the applicant be granted access to the copy;
(b) otherwise affirm the reviewable decision.
Document 46
180. This is a file note dated 3 August 1999 being the same file note which forms part of Document 5, except that it also includes written annotations.
181. That part of the document containing the written annotations has already been released to the applicant.
182. It therefore follows that, for the reasons I have given with respect to this file note insofar as it comprises part of Document 5, I:
(a) direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions of all names of persons other than the applicant and that the applicant be granted access to the copy;
(b) otherwise affirm the reviewable decision.
Document 47
183. This document is accurately described in the respondent’s written submissions as “a one page document with the heading ‘complaint by Mr Phil Harshaw to the Perth office’. The document also contains written annotations.”
184. Part of the document has been released to the applicant. What has not been released to the applicant are hand-written annotations which comprise telephone numbers, a natural person’s name and their profession.
185. The purpose for which this information was recorded on this document is unknown. However, it appears to have no relevance whatsoever to the applicant. For that reason, it was submitted that the disclosure of the document would unreasonably disclose the personal details of the specific individual identified in the document. I agree.
186. It therefore follows that, in respect to this document, the reviewable decision should be affirmed.
Document 48
187. This document is accurately described in the respondent’s written submissions as “an internal email dated 23 September 1999 between staff members of the ACCC”. The subject of the email is “Auto Masters and Harshaw allegations”.
188. The applicant was denied access to this document on the basis that it is an exempt document.
189. The respondent relies upon s 36, s 41, and s 43(1)(c)(i) of the Act.
190. This inter-office email can be best described as constituting a detailed briefing note and response to what is accurately described in the respondent’s submissions as “previous allegations made by Mr Coombes against (a) staff member, the ACCC and a number of third parties including individuals and organisations”.
191. I find that the document is clearly one to which s 36(1)(a) of the Act refers in that the document records information in the nature of, or relating to, opinion, advice and recommendations obtained, prepared and recorded, as well as consultation and deliberation that has taken place, in the course, or for the purposes of, deliberative processes involved in the respondent’s functions.
192. I accept the respondent’s submission that it is not in the public interest for such material to be made available under the Act as the public interest in the transparent operations of government agencies is clearly subservient to the need for those agencies to be able to engage in frank inter-office communications relating to deliberative processes arising in the discharge of the agency’s functions.
193. I find that the document contains information concerning the business, commercial or financial affairs of an organisation and that its disclosure would, or could reasonably be expected to, unreasonably affect that organisation in respect of its lawful business, commercial or financial affairs, and that, having regard to the nature of the material recorded in the document, that remains so notwithstanding that it is information which is some 8 years old.
194. I also find that the document contains personal information about a person other than the applicant and that, having regard to the nature of the information, its disclosure would be unreasonable (again, notwithstanding the fact that the document is some 8 years old).
195. Given my findings with respect to s 41 and s 43(1)(c)(i), I further find it is not possible to make a copy of the document with such deletions that the copy would not be an exempt document within the meaning of s 22 of the Act.
196. It therefore follows that, with respect to this document, the reviewable decision should be affirmed.
Document 49
197. This document is accurately described in the respondent’s submission as “a suite of documents that relate to a third party”. The second, third and seventh pages of the document have not been released to the applicant. In doing so, the respondent relies upon s 22, s 41 and s 43(1)(c)(i) of the Act.
198. Pages two and three of the document contain allegations made by a third party against persons and organisations referred to therein which are serious in nature. Insofar as they relate to specific individuals, I find that the allegations relate to both personal and professional matters. Moreover, I find that the nature of the allegations is such that disclosure of information made or, could reasonably be expected to, unreasonably affect those organisations and persons adversely in respect of their lawful business, commercial and professional affairs.
199. For the purpose of s 41, I find it would be unreasonable to disclose such material.
200. Having carefully considered the document, I find it is not possible for the respondent to make a copy of the document with such deletions that the copy would not be an exempt document. Although it is possible to sanitise the document by deleting all names, I find that information otherwise available to the applicant would permit him to make an educated guess as to the names that have been removed (by reason of the allegations that would remain).
201. As for page seven of the document, this is a letter from a third party to the Chief Executive Officer of the Franchise Council of Australia. It makes unsubstantiated allegations about yet another individual, not being an employee of the respondent and makes reference to the organisation with which that individual is connected. I therefore find that the document contains personal information about a person other than the applicant.
202. Given that, as I have said, the letter constitutes unsubstantiated allegations about a person, and the person appears to be no way related to the respondent or even to the applicant’s allegations made to the respondent, I find that the disclosure of such information would be unreasonable within the meaning of s 41(1).
203. Moreover, given that it appears to have absolutely nothing whatsoever to do with the applicant, the applicant’s complaints or the respondent, I find that this page is wholly irrelevant to the applicant’s request and therefore exempt pursuant to s 22(1)(a)(ii) of the Act.
204. For those reasons I find it is not possible for the respondent to make a copy of the document with such deletions that the copy would not be an exempt document and would not disclose irrelevant information.
205. It therefore follows that, in respect of this document, the reviewable reason should be affirmed.
Document 52
206. This document is accurately described in the respondent’s written submissions as “a document derived from an ACCC internal database. This document was created on 1 April 2003 and provides an entire summary and history of a matter the ACCC was investigating. The summary documents all the information and intelligence gathered by the ACCC in investigating this matter.”
207. The applicant was denied access to this document on the basis that it is an exempt document.
208. The respondent relies upon s 22, s 36, s 41, s 40(1)(d) and s 43(1)(c)(i) of the Act.
209. I do not accept the respondent’s submission that the document is irrelevant to the applicant’s request. As is conceded by the respondent in its written submissions “one or two of the entries in the document identifies the applicant”. I find that is sufficient to bring the matter within the applicant’s request. The reviewable decision cannot be affirmed by reference to s 22(1)((ii) of the Act.
210. However, I find that the reviewable decision should be affirmed by reference to s 36, s 40(i)(d), s 41 and s 43 (c)(i) of the Act.
211. Internal documents which contain a detailed notation of a particular investigation are self evidently documents in which the public interest is served by them being exempt from disclosure under the Act. I find:
(a) disclosure of the document 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 respondent’s statutory functions;
(b)it would be contrary to the public interest to disclose such a document;
(c) the document’s disclosure would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the respondent where disclosure under the Act would not, on balance, be in the public interest;
(d)the document contains information concerning the business, commercial or financial affairs of an organisation being information, the disclosure of which would or could reasonably be expected to, unreasonably affect that organisation in respect of its lawful business, commercial or financial affairs;
(e)disclosure of the document would involve the unreasonable disclosure of personal information about a person other than the applicant;
(f)it is neither possible nor practicable for the respondent to make a copy of the documents such that the copy would not be an exempt document.
Document 53
212. This document is an extract from the respondent’s internal data base, made on 3 September 2004. It is a MARS document similar to Document 33.
213. As with Document 33, part of this document has been released to the applicant, but unlike Document 33, there are line items “trader” and “description” which are included in the document, but the detail of which has been deleted from the copy provided to the applicant, as well as one other line item, the description and content of which have not been disclosed to the applicant.
214. For the same reasons given with respect of Document 33, I find the document to be exempt but that, in addition to that which has been disclosed to the applicant, both the “description” and the line item disclosed in the outcome of the complaint, as well as the matter number, are matters which ought to be disclosed to the applicant pursuant to s 22.
215. Accordingly, in respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with the same deletions which have previously been made by the respondent, save and excluding the matter number, the words that appear against the word “description” and the last line item above the words “matter last updated …”, and that the copy be made available to the applicant;
(b)otherwise affirm the reviewable decision.
Document 54
216. The document in question is an email from Mr Kelly of the respondent to Ms Grasso of the respondent which forwards an email from Mr Di Scerni of the respondent.
217. Part of the document has been released to the applicant. The respondent has denied the applicant access to the balance of the document on the basis that it is an exempt document.
218. The respondent relies upon s 22, s 40(1)(d), s 41(d) and s 43(1)(c)(i) of the Act.
219. The email from Mr Di Scerni to Mr Kelly relates to the content of a conversation between himself and the applicant on 19 August 2004.
220. I therefore see no basis by which the document can be exempt from release under s 22 of the Act. In this regard I note that no submissions were made on behalf of the respondent in that regard.
221. For the same reasons I have given previously with respect to documents which comprise a record of a conversation between the applicant and an officer of the respondent, I do not find any part of this document to be exempt under s 40(1)(d) or s 43(1)(c)(i) of the Act: it is not a document to which either of those sections apply and in any event I do not find that it is in the public interest for disclosure of such documents to be withheld.
222. Moreover, in respect to s 41 it was submitted on behalf of the respondent that part of the document “contains personal information in respect of two individuals. While the document does not identify the individuals by name, the identity of the individuals involved may possibly be ascertainable. The document shows the applicant has made a complaint and makes reference to whom it is the applicant believes to be the cause of the complaint. The statement may cast aspersions on the personal characteristics and professionalism of the individuals involved. For these reasons, it would be unreasonable to disclose the remaining contents of this document”.
223. I uphold the respondent’s submission that the document does not identify any individuals by name, but do not uphold the respondent’s submission that the identity of individuals involved, not referred to by title, may be ascertainable.
224. I therefore find that the document does contain personal information relating to a person other than the applicant to which s 41(1) of the Act applies.
225. However, I find that, pursuant to s 22 of the Act, it is possible to make a copy of the document. As such the copy would not be an exempt document, and that it is reasonably practicable to do so.
226. I find that a copy of the document deleting from the final paragraph on the first page of the document all words after the word “was” where it appears in the penultimate line of that paragraph would not be an exempt document.
227. It therefore follows that, with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these Reasons for Decision and the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 55
228. This is another MARS document. A copy of the document with certain information deleted has been provided to the applicant.
229. For the same reasons given with respect to Document 53 I find that disclosure of the balance of the document to the applicant, whilst maintaining the deletion of the name of the “Trader” referred to therein pursuant to s 22 of the Act, would not be an exempt document and that it is practicable for the respondent to do so.
230. Accordingly, in respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with the sole deletion of the name of the “Trader” referred to in the document and that the copy be made available to the applicant;
(b)otherwise affirm the reviewable decision.
Document 56
231. This is another MARS document, part of which is being disclosed by the respondent to the applicant.
232. My findings in respect to Document 55 are equally applicable to this document.
233. Accordingly, in respect to this document, I
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with the sole deletion of the name of the “Trader” referred to therein and that the copy be made available to the applicant;
(b)otherwise affirm the reviewable decision.
Document 57
234. This document is accurately described in the respondent’s written submissions as “an ACCC internal database entry that was extracted on 27 August 2004 ... (and) concerns a complaint made by the applicant to the ACCC about the same organisation identified in documents 53, 55 and 56 as well as two additional organisations. However, the nature of the complaint is different”.
235. The document is said to be an exempt document.
236. The respondent relies upon s 40(1)(d) and 43(1)(c)(i) of the Act.
237. Insofar as it is claimed to be exempt pursuant to s 40(1)(d), the respondent repeated its submissions with respect to documents 33, 53 and 56. In regard to s 43(1)(c)(i), the submissions made in relation to documents 53 and 56 are repeated.
238. It was further submitted that this document contains more detailed allegations than those extracted in regard to document 56. Further specific information about certain individuals is recorded. It is submitted that it would be unreasonable in the circumstances where unsubstantiated allegations are made for this information to be disclosed.
239. For the same reasons that I have given with respect to documents 33, 53 and 56, I find the documents to be exempt but that, in addition to that which has been disclosed to the applicant, the whole of the document ought be made available to the applicant other than the names of the “Traders”, and the names (including abbreviations thereof) referred to in the “Description” and “Details”.
240. Accordingly, in respect of this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made deleting the names of the “Traders” and all names (including abbreviations thereof) in the “Description” and “Details” and that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 59
241. This is yet another MARS matter summary, part of which has been disclosed by the respondent to the applicant.
242. This time however the identity of the trader has been disclosed in the copy provided to the applicant.
243. Whilst there is no doubt that the document is exempt by reason of its contents, nature and the fact that it contains information relating to a person other than the applicant, I find that, pursuant to s 22 of the Act, it is possible to make a copy of the document with such deletions, the copy would not be an exempt document, and that it is reasonably practicable to do so.
244. I find that a copy of the document deleting the description of the “conduct” and the christian and surname referred to variously against the description “response/pamphlets sent” would not be an exempt document.
245. It therefore follows that, with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these reasons for decision and that the applicant be granted access to the copy;
(b) otherwise affirm the reviewable decision.
Document 60
246. This is yet another MARS document almost all of which has been made available to the applicant, other than one full line item, a description of the “Product/Service” (which is a description by reference to a business name), a repetition of that business name in the “Matter Description” and deletion of part of the sentence “C also concerned at the way T treats him (deleted)”.
247. For reasons previously given, I find that the description contained in the line item which has been deleted is not an exempt matter, but that the corresponding part of that line item (which is a company name) is exempt by reason of each of the sections relied upon by the respondent. The reference to the business name where it twice appears is clearly exempt under s 41 of the Act. However, I see no basis for the claimed exemption from the balance of the sentence which I have set out above.
248. It therefore follows that, with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made deleting only the company name in the line item which has been completely deleted from the copy made available to the applicant as well as the business name which appears in the line item, “Product/Service” and “Matter Description:, and that the copy be made available to the applicant;
(b)otherwise affirm the reviewable decision.
Document 63
249. This is yet another MARS matter summary where part of the document has been made available to the applicant, including the name of the “Trader”.
250. Accordingly, I apply and make with respect to this document the same reasoning and findings as I have applied and made with respect to document 59.
251. It therefore follows that, with respect to this document, I
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made, deleting the description of the “Conduct” in the relevant line item, the description of the “Matter Description” and the christian and surname referred to in the “Response/Pamphlets sent” item and that the copy be made available to the applicant;
(b)otherwise affirm the reviewable decision.
Document 64
252. This is yet another MARS matter summary, part of which the respondent has made available to the applicant. It relates to a complaint made by the applicant.
253. For the reasons I have given with respect to the other MARS matter summaries, I do not find the document to be exempt from release under s 41(d) of the Act, being the only section relied upon by the respondent.
254. It therefore follows that, with respect to this document, the reviewable decision should be set aside.
Document 66
255. This document is accurately described in the respondent’s written submissions as “an ACCC internal database entry that was extracted on 1 February 1996”.
256. Part of the document has been released to the applicant, with the respondent submitting that the remainder of the document is exempt from release under s 41, s 40(1)(d) and s 43(1)(c)(i) of the Act.
257. The respondent rightly submits that the extract contains the same information as is contained in Document 56, save that the document is different in format and the documents provide the relevant information as at different dates. The respondent therefore repeats its submission in respect of Document 56.
258. For the reasons given with respect to Document 56, I uphold the respondent’s submissions and further find that it is not possible to make a copy of the document with such deletions such that the copy would not be an exempt document within the meaning of s 22 of the Act.
259. It therefore follows that, with respect to this document, the reviewable decision should be affirmed.
Document 67
260. This document is accurately described in the respondent’s written submissions as “an ACCC internal database entry that appears to have been extracted on 19 December 1995”.
261. The respondent submits that the document is exempt from release by reason of s 41 and s 43(1)(c)(i) of the Act.
262. The respondent submits that the extract contains the same information as is incorporated in Document 57, save that the two documents are different in format and dates of extraction.
263. The respondent therefore repeated its submissions with respect to Document 57.
264. For the reasons I have given with respect to Document 57 I find that a copy of the document ought be made with all names, other than the applicant and the respondent (including all abbreviations of other names) be deleted.
265. It therefore follows that, with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with all names, other than the applicant and the respondent (including abbreviations of such other names) be deleted and that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 70
266. This document is accurately described in the respondent’s written submissions as a file note dated 19 January 1996 by Mr Steve Rowson of the respondent which is a record of a conversation between Mr Rowson and the applicant. It contains a series of detailed allegations made by the applicant and identifies specific individuals, the companies they work for and their various relationships to each other.
267. It is submitted that the disclosure of this document would involve the unreasonable disclosure of personal information about the individuals identified in this document in that those individuals will sustain irreparable harm to their reputation given the specific comment that is made about each individual and the serious nature of the allegations. It is submitted that there is no public benefit in the release of information containing unsubstantiated allegations about such individuals. Information of this character is likely to be misunderstood or misapplied by the public if released.
268. It is further submitted that the document also contains information concerning the business and commercial affairs of a number of organisations and individuals, the disclosure of which would or could reasonably be expected to unreasonably affect those organisations and individuals adversely in respect of their lawful business, commercial and professional affairs as the document records allegations which are not substantiated and the disclosure of which would have a negative impact upon the reputation of the identified organisations and individuals. It is submitted that the public interest would not be served by the disclosure of such information.
269. The respondent therefore submits that the document is exempt from release under s 41 and s 43(1)(c)(i) of the Act.
270. A review of the document shows that the respondent’s submissions are, in the main, clearly borne out.
271. The one qualification is that this is a document of a note of complaints made by the applicant himself.
272. In those circumstances, I consider that, pursuant to s 22 of the Act, it is possible to make a copy of the document with such deletions that the copy would not be an exempt document and that it is reasonably practicable to do so.
273. I find that a copy of the document deleting all names other than that of the applicant and Mr Rowson (and all abbreviations of such names) would not be an exempt document and that it is reasonably practicable to do so.
274. It therefore follows that with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made deleting all names (including abbreviations thereof) other than the applicant and Mr Rowson and that the copy be made available to the applicant;
(b)otherwise affirm the reviewable decision.
Document 75
275. This is accurately described in the respondent’s written submissions as an email date 7 December 2003 from Mr Di Scerni to Mr Brown, both of the respondent. The subject of the email is “Telephone conversation with Mr Phil Harshaw” and was created in response to a phone call made by the applicant to Mr Di Scerni.
276. The respondent submits that the document is exempt from release under s 36 and s 40(1)(d) of the Act.
277. The respondent submits that it is an internal working document which discusses various complaints the applicant has made over a number of years and identifies the organisation that is the subject of the complaint. It is submitted that it is essential to the operations of the respondent that staff are able to make a record of any discussions they have when the subject matter of those discussions deals with the complaints.
278. The respondent further submitted that whilst there is a public interest in the public being able to scrutinise the operations of the respondent or to make its own judgment as to whether the respondent is discharging its functions efficiently and properly, and that the release of the information will assist the applicant in understanding how the ACCC carries out its functions, it is submitted that the public interest in the respondent being able to continue to conduct its business efficiently and effectively outweighs the public interest in disclosing this document. Staff should be able to communicate with each other without fearing that these types of deliberations will be disclosed.
279. It was also submitted that release of the document would have a substantial adverse effect on the proper and efficient conduct of the operations of the Commission because the Commission relies heavily on obtaining information from various sources within the community. It was submitted that if the substance of the complaints were disclosed it would impact on how the respondent conducts its business and those assisting the respondent would be reluctant to provide information of this character.
280. The document is an internal communication about a complaint made by the applicant. Part of the document simply records what the applicant has said. The other part of the document is a communication between officers of the respondent arising from the applicant’s communication.
281. I find that the respondent’s submissions are well made with respect to the latter, but not the former, aspects of the document. I see no basis to hold that the respondent’s record of a conversation with the applicant is exempt from production to the applicant. I do, however, consider that, for the reasons advanced on behalf of the respondent, the balance of the document is exempt.
282. I find that, pursuant to s 22 of the Act, it is possible to make a copy of the document with such deletions that the copy would not be an exempt document and that it is reasonably practicable to do so.
283. I find that a copy of the document with the following deletions would be an exempt document, namely deleting:
(a) the first paragraph;
(b)the words in the first line of the second paragraph preceding the words “I received”;
(c)the third paragraph other than the first sentence;
(d)the words subsequent to “some years ago” in the fourth paragraph;
(e)the second sentence of the penultimate paragraph;
(f)the ultimate paragraph.
284. It therefore follows that, with respect to this document, I:
(a)direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these reasons for decision, and that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
Document 76
285. This document constitutes an email from an employee of the respondent seeking advice from a person who I am informed and accept to be a legal practitioner who was at the relevant time the General Manager of the respondent’s legal department. The document also contains an email containing the legal practitioner’s written advice.
286. The applicant was denied access to this document on the basis that it was an exempt document.
287. The respondent relies upon s 36 and s 42 of the Act.
288. The nature of these emails is such that they clearly constitute a request for and the provision of legal advice. The fact that the advice is sought from and given by an in-house legal practitioner does not alter that conclusion: see, for example, Seven News Ltd v News Ltd [2005] FCA 142. I therefore uphold the respondent’s claim that Document 76 is of such a nature that it would be privileged from production in legal proceedings on the grounds of legal profession privilege.
289. The document is not of the kind referred to in s 9(1) of the Act. Accordingly, s 42(2) of the Act has no application to the document.
290. I therefore uphold the decision that Document 76 is an exempt document pursuant to s 42 of the Act.
291. As for s 36, I accept that the document forms part of the “delivery of processes” of the respondent, see, for example, Zacek & Australian Postal Corporation [2002] AATA 473 and Shopping Centre Council of Australia & Australian Competition Consumer Commission [2004] AATA 119. Given the fact that I have found the document to be subject of legal professional privilege, and given that such privilege is based on issues of public policy, it follows that I am satisfied that it will be contrary to the public interest to direct the respondent to grant to the applicant accept to such a document.
292. Given the nature of the exemptions, it is not possible to make a copy of the document with such deletions that the copy would not be an exempt document within the meaning of s 22(1)(b)(i) of the Act.
293. It therefore follows that, with respect to this document, the reviewable decision should be affirmed.
Document 77
294. Document 77 comprises the two emails the subject of Document 76, as well as a further email by the author of the original request for advice in response to a query raised by the General Manager of the respondent’s legal department.
295. The applicant was denied access to this document on the basis that it is an exempt document.
296. The respondent relies upon s 36 and s 42 of the Act.
297. The document constitutes the provision of instructions to a legal practitioner in connection with the provision of legal advice and thus is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege. As it is not a document of a kind referred to in s 9(1) of the Act, it follows that I uphold the decision that Document 77 is an exempt document pursuant to s 42 of the Act.
298. As for s 36, I accept that the document forms part of the “delivery of processes” of the respondent. Given the fact that I have found the document to be subject of legal professional privilege, and given that such privilege is based on issues of public policy, it follows that I am satisfied that it will be contrary to the public interest to direct the respondent to grant to the applicant accept to such a document.
299. Given the nature of the exemptions, it is not possible to make a copy of the document with such deletions that the copy would not be an exempt document within the meaning of s 22(1)(b)(i) of the Act.
300. It therefore follows that, with respect to this document, the reviewable decision should be affirmed.
Document 78
301. Document 78 is an email from the employee who initiated the email correspondence to which I have referred to the General Manager of the respondent’s legal group pursuing the latter’s advice which the former had previously requested.
302. The applicant was denied access to this document on the basis that it is an exempt document.
303. The respondent relies upon s 36 and s 42 of the Act.
304. The document is a request to a legal practitioner for the provision of legal advice and is thus of such a nature that it would be privileged from production in legal proceedings on the grounds of legal professional privilege. As it is not a document of the kind referred to in ss 9(1) of the Act, it follows that I uphold the decision that document 78 is an exempt document pursuant to s 42 of the Act.
305. As for s 36, I accept that the document forms part of the “delivery of processes” of the respondent. Given the fact that I have found the document to be subject of legal professional privilege, and given that such privilege is based on issues of public policy, it follows that I am satisfied that it will be contrary to the public interest to direct the respondent to grant to the applicant accept to such a document.
306. Given the nature of the exemptions, it is not possible to make a copy of the document with such deletions that the copy would not be an exempt document within the meaning of s 22(1)(b)(i) of the Act.
307. It therefore follows that, with respect to this document, the reviewable decision should be affirmed.
Document 79
308. Document 79 comprises two emails. The first is the email comprising Document 78. The second is an email from the General Manager of the respondent’s legal group to the employee in question providing legal advice.
309. The applicant was denied access to this document on the basis that it is an exempt document.
310. The respondent relies upon s 36 and s 42 of the Act.
311. I have already dealt with the email comprising Document 78. As for the second email, it constitutes the provision of legal advice by a legal practitioner and is thus of such a nature that it would be privileged from production in legal proceedings on the grounds of legal professional privilege. As it is not a document of the kind referred to in ss 9(1) of the Act, it follows that I uphold the decision that Document 79 is an exempt document pursuant to s 42 of the Act.
312. As for s 36, I accept that the document forms part of the “delivery of processes” of the respondent. Given the fact that I have found the document to be subject of legal professional privilege, and given that such privilege is based on issues of public policy, it follows that I am satisfied that it will be contrary to the public interest to direct the respondent to grant to the applicant accept to such a document.
313. Given the nature of the exemptions, it is not possible to make a copy of the document with such deletions that the copy would not be an exempt document within the meaning of s 22(1)(b)(i) of the Act.
314. It therefore follows that, with respect to this document, the reviewable decision should be affirmed.
Document 80
315. Document 80 comprises the two emails contained in Document 79, as well as a further email from the recipient of the legal advice to the General Manager of the respondent’s legal group expressing that person’s agreement with the advice provided and informing the General Manager how he proposes to implement the advice received.
316. The applicant was denied access to this document on the basis that it is an exempt document.
317. The respondent relies upon s 36 and s 42 of the Act.
318. The document constitutes a communication with a legal practitioner with respect to the provision of legal advice and thus is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege. As it is not a document of a kind referred to in s 9(1) of the Act, it follows that I uphold the decision that Document 77 is an exempt document pursuant to s 42 of the Act.
319. As for s 36, I accept that the document forms part of the “delivery of processes” of the respondent. Given the fact that I have found the document to be subject of legal professional privilege, and given that such privilege is based on issues of public policy, it follows that I am satisfied that it will be contrary to the public interest to direct the respondent to grant to the applicant accept to such a document.
320. Given the nature of the exemptions, it is not possible to make a copy of the document with such deletions that the copy would not be an exempt document within the meaning of s 22(1)(b)(i) of the Act.
321. It therefore follows that, with respect to this document, the reviewable decision should be affirmed.
Document 81
322. Document 81 comprises various emails.
323. The applicant was denied access to this document on the basis that it is an exempt document.
324. The respondent relies upon s 36 and s 42 of the Act.
325. The first two emails in time are the emails contained in Document 79. I have already dealt with these emails.
326. There are three other emails. The first sent at 6.36 pm on 13 November 2003 to, amongst others, the General Manager of the respondent’s legal department which merely records the content of a discussion between the relevant employee and the applicant.
327. The second email acknowledges receipt of the email to which I have just referred, and, by a copy to the “FOI Officer – ACCC Legal Group”, expresses an opinion which does not in any way constitute the provision of legal advice. In this regard I note that in the email to which it responds, no legal advice was sought.
328. The third email is from the “FOI Officer – ACCC Legal Group” to the General Manager of the respondent’s legal department acknowledging his email and making that administrative request. The request is not in the form of a request for legal advice.
329. As to those three emails (which comprise the first page of Document 81) they are not of such a nature that they would be privileged production in legal proceedings on the grounds of legal professional privilege.
330. Nor do I see any reason why it would be contrary to the public interest to disclose such documents.
331. I note, however, that the “subject” of each of these three emails discloses the request for legal advice comprising Document 78 (which I have held to be an exempt document).
332. It is clear that the exempt matter that I have identified can be deleted from document 81 pursuant to s 22 of the Act, namely by deleting the emails dated 11 and 12 November 2003 and the “subject” line of those the emails dated 14 and 30 November 2003.
333. It therefore follows that, in respect of this document, I:
(a) direct that, pursuant to s 22 of the Act, a copy of the document be made with deletions thereto in accordance with these reasons for decision, and that the applicant be granted access to the copy;
(b)otherwise affirm the reviewable decision.
I certify that the three hundred and thirty three [333] preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member
Signed: ...............(Sgd. R Riberi).............................
AssociateDate of Hearing 2 August 2006
Date of Decision 26 October 2007
Counsel for the Applicant Self Represented
Counsel for the Respondent Ms J Stuckey-Clarke
Solicitor for the Respondent Ms Elissa Keen
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