Hawkins and Department of Defence

[2004] AATA 1107

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1107

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2003/506

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CHRISTOPHER JOHN HAWKINS

Applicant

And DEPARTMENT OF DEFENCE

Respondent

DECISION

Tribunal Mr M J Allen

Date25 October 2004

PlacePerth

Decision The Tribunal declines to make a recommendation under section 66(1) of the Freedom of Information Act 1982 that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.

............(sgd M J Allen)....................

Member

CATCHWORDS

Freedom of Information – costs – discretion of Tribunal to recommend payment of applicant’s costs by the Commonwealth – applicant granted access to the document in dispute pursuant to order under s 42C of the Administrative Appeals Tribunal Act, 1975 – applicant substantially successful in the application for review – payment of costs would cause financial hardship to the applicant – whether the decision of the Tribunal on review would be of benefit to the general public or would be of commercial benefit to the applicant – whether reviewable decision was reasonable – other relevant considerations – whether conduct of respondent caused unreasonable delay and unnecessary costs to the applicant – discretion to recommend payment of costs not exercised in applicant’s favour

Freedom of Information Act, 1982 ss 4, 24A, 27, 27A, 41, 43, 59, 59A, 66

Re Paterson and Dept of Arts, Heritage & Environment (No2) (1985) 8 ALD 227

Re WAJ and Commonwealth Ombudsman and Brown [1999] AATA 13

Re Kabalan (1993) 113 ALR 330

Cashman & Partners v Secretary Department of Community Services and Health (1995) 61 FCR 301

Re Bailey and Tertiary Education Commission (1986) 12 ALD 165

Re Chan and Dept. of Immigration and Ethnic Affairs (No 2) (1985) 8 ALN N52

Re Lordsvale Finance and the Department of Treasury (1986) 12 ALD 327

Re Rae and Department of Arts Heritage and Environment (1985) 7ALD 449

Searle v Public Interest Advocacy Centre (1992) 108 ALR 163

REASONS FOR DECISION

25 October 2004 Mr M J Allen          

1. This is an application by Mr Hawkins (“the applicant”) for the Tribunal to make a recommendation to the Attorney General pursuant to s 66(1) of the Freedom of Information Act 1982 (“the Act”) that the cost of the applicant in relation to the proceedings be paid by the Commonwealth.

2. The background to the matter is that in November 2002 the applicant’s wife died whilst serving in the Australian Army. On 28 May 2003 the applicant made a request pursuant to the Act for access to a copy of a document prepared by a Sergeant Jansen (“the Jansen document”) and any documents relating to any investigation of the circumstances of his wife’s medical treatment prior to her death (“the medical investigation documents”). On 24 June 2003 a decision was made to deny access to the Jansen document because, despite investigation, the document could not be found. In relation to the medical investigation documents, a decision was made that no such documentation ever existed. A further document, which was said to be a final report that was based, in part, on the Jansen document was not released to the applicant under the Act because it was considered to fall outside the scope of the applicant’s request – but it was suggested to the applicant that he lodge a further request for the final report. This was done and access was subsequently granted to that document.

3. The applicant sought internal review of the decisions refusing access to the Jansen document and the medical investigation documents and on 13 October 2003 a decision was made on internal review by a Brigadier Wilson. By that date a copy of the Jansen document had been located and a decision was made to refuse access to it pursuant to ss 41(1) and 43(1)(c)(i) of the Act. In relation to the medical investigation documents Brigadier Wilson affirmed the original decision and refused to grant access pursuant to s 24A(b)(ii) of the Act because no such documents ever existed.

4.      On 9 December 2003 the applicant applied to the Tribunal for review of the decision made on 13 October 2003 insofar as it related to the decision to refuse access to the Jansen document.  On 19 February 2004 a conference between the parties was convened by the Tribunal and on 8 March 2004 the parties were advised that the matter had been listed for hearing on 10 May 2004.

5. On 10 May 2004 the parties informed me that agreement had been reached between them to the effect that the decision under review be set aside and that the applicant be granted access to the Jansen document. An order to that effect was made pursuant to s 42C of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and an order was also made that the applicant have liberty to apply for a recommendation to be made by the Tribunal to the Attorney General pursuant to s 66 of the Act that the applicant’s costs of the proceedings be paid by the Commonwealth. Directions were made regarding the filing of evidence on affidavit and written submissions. Both parties subsequently filed affidavit evidence and written submissions concerning the costs issue. In addressing the costs issue I have considered the documents filed in the proceedings pursuant to s 37 of the AAT Act (T1 to T9) (which did not include a copy of the Jansen document) and exhibits A (an affidavit of the applicant’s solicitor with annexures 1 to 5) and B (an affidavit sworn by the respondent’s solicitor with annexures 1 and 2).

Consideration

6. Section 66(1) of the Act relevantly provides that the Tribunal may, in its discretion, make a recommendation of the type referred to in para 5 above if the applicant for review has been “successful or substantially successful” in the application.  Subsection 66(2) relevantly provides that the Tribunal must have regard to four specified factors when deciding whether to make a recommendation, but the four specified factors do not limit the generality of the matters to which the Tribunal may have regard.  The four specified factors are:

“(a)the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant;

(b)the question whether the decision of the Tribunal on review will be of benefit to the general public;

(c) the question whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal; and

(d) the reasonableness of the decision reviewed by the Tribunal.”

7. The first issue to address is whether the applicant was successful or substantially successful in his application for review. As noted above, the only issue raised by the applicant in his application to the Tribunal was the issue of access to the Jansen document and, by consent, the applicant was granted access to that document without deletion. Accordingly, I consider that the applicant was successful in the application for review. The discretionary power of the Tribunal to make the recommendation contemplated by s 66(1) therefore arises and I must consider the four factors specified in s 66(2) and any other relevant factors. The nature of the discretion was described by Deputy President Hall in Re Paterson and Dept of Arts, Heritage & Environment (No2) (1985) 8 ALD 227 at [23] as follows:

“The nature of the discretion conferred upon the Tribunal is quite inconsistent, in my view, with any notion of a presumptive entitlement to costs in every case of success. Parliament clearly intended that the Tribunal should weigh the circumstances of each case, in the light of the specified and any other relevant considerations, in order to decide whether or not a recommendation should be made.” 

See also Re WAJ and Commonwealth Ombudsman and Brown [1999] AATA 13 at [9] per Deputy President Hotop.

8.      In Re Paterson (No2) (above) at [25] to [31] D.P. Hall referred to his view that the factors in s 66(2) (b), (c) and (d) were, literally, not applicable in cases where access to a document was granted “…prior to the Tribunal hearing and/or determining the matter”, but that the person to whom access was granted in that way “…can be in no better position, in terms of entitlement to the favourable exercise of he Tribunal’s discretion, than if the matter had proceeded to a decision by the Tribunal” (at[25]). In such a case the Tribunal “…should have regard, so far as the circumstances of each case may allow, to criteria drawn by analogy from these specified in s 66(2)(b), (c) and (d) in order to ensure consistency of approach in the differing factual circumstances in which the discretion to recommend costs may arise.”  I propose, in the present case, to consider the four factors identified in s 66(2).

Financial Hardship

9. Section 66 (2)(a) requires the Tribunal to have regard to “the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant”. A hardship has been described as “any condition which presses with particular asperity upon a person …”: Re Kabalan (1993) 113 ALR 330 at 332 per Gummow J, and “financial hardship” has been described in Re Paterson (No 2) (above) at [43] as:

“… hardship caused to the applicant by reason of the financial burden of being obliged to meet the costs of the application from its own resources. … It is not enough … for the applicant to assert that if it is obliged to meet its own costs, it will deplete the funds otherwise available to pursue its objects.  Every successful applicant, no matter how wealthy, would suffer financial hardship on that basis”.

Account must be taken of both the amount of the costs incurred and the particular financial circumstances of the applicant: Re WAJ (above) at [22].

10.      In the present case, according to exhibit A at [15], the applicant has incurred approximately $9074 in costs in bringing the application – although it is not made clear whether that amount includes all of the legal costs incurred in relation to the making of the original access request or just the cost of applying to the Tribunal and the preparation for the hearing.  Exhibit A describes the applicant as a sergeant in the Australian Defence Force based in Perth and who has the care of and responsibility for a child now aged approximately six years.  Apart from that I have no information concerning the applicant’s income, his assets and liabilities, or any other financial resources that may be available to him to meet the costs of the proceedings and his other commitments. In that sense I am unable to make an informed assessment of the applicant’s financial position overall or whether the payment of the costs in question would place him in a financially embarrassed situation or in financial difficulties. In other words I am unable to assess whether payment of the costs would press upon him with particular asperity or severity in a financial or pecuniary respect.

11. Consequently, and even assuming that the $9074 represents only the costs of the present proceedings, I am unable to conclude that payment by the applicant of the costs would cause him financial hardship within the meaning of s 62 (2)(a) of the Act.

Benefit to the general public

12. Section 66(2)(b) requires the Tribunal to consider whether the “decision of the Tribunal on review will be of benefit to the general public”. It must be recalled that the decision to grant the applicant access to the Jansen document was made by consent under s 42C of the AAT Act and hence there are no Tribunal reasons for decision. In any event, the question of benefit to the general public involves a consideration of the benefit that may flow from the release of the information previously withheld by the agency, rather than a consideration of the Tribunal’s reasons for decision: see Cashman & Partners v Secretary Department of Community Services and Health (1995) 61 FCR 301 at 307 per Beazley J.

13.     The applicant has contended that the disclosure of the Jansen document was in the public interest on the grounds that information about standards of medical care and procedures of the Department of Defence should be publicly available. At this point it is appropriate to note that, because the matter was resolved without a hearing by the Tribunal, I have not seen the Jansen document.  However, it is not in dispute that Sergeant Jansen was not a medical practitioner and was not otherwise medically qualified - but had formerly worked as an army medic. It was said in the applicant’s statement of facts and contentions (at [1.8]) that she had some familiarity with the symptoms of multiple sclerosis. It also appears to be common ground that the Jansen document contains comments made by Sergeant Jansen of her perceptions of the medical treatment received by the applicant’s wife prior to her death, but I note that Brigadier Wilson concluded in his reconsideration decision (at T8) that the observations were “erroneous in fact”.  As to whether that is the case I express no view.

14.     Exhibit A (at [18]) refers to the Jansen document as being an important document for the applicant to obtain given his concerns about the standard of care his wife received. The applicant’s written submissions refer to the public benefit that would flow from information about standards of medical care in the Department of Defence being publicly available, but neither the submissions nor Exhibit A make  reference to any intention to release the documents publicly.  To be of benefit to the public there must be a real likelihood that the information will come to the attention of the public: Re Bailey and Tertiary Education Commission (1986) 12 ALD 165 at 167. In the circumstances there is insufficient material before me to enable a conclusion that there is a real likelihood that the contents of the Jansen document will be made generally available. However, even if I were to reach such a conclusion, I am not satisfied that the perceptions of a medically unqualified person about the circumstances leading up to death of a person, that may or may not be factually correct, would be of such a nature as to constitute the kind of public benefit that section 62(2)(b) of the Act contemplates. Accordingly, I am not satisfied that there would be any particular public benefit that would flow from the granting of access to the applicant of the Jansen document.

Commercial Benefit

15.     When judging whether an applicant will benefit commercially from disclosure of the document in question there must be consideration of whether “the ultimate motive for the request and the application for review was commercial benefit”: Re Lordsvale Finance and the Department of Treasury (1986) 12 ALD 327 at 329. The applicant’s solicitor said in Exhibit A that he was not aware of the Jansen document being of any commercial benefit to the applicant. The respondent made no submission in relation to this factor and Exhibit B did not refer to the issue. On the limited material before me I consider that the ultimate motive of the applicant in requesting access to the Jansen document was to obtain further information about his late wife’s medical treatment prior to her death. I have no information about any other motive and, in the circumstances, I conclude that there was no commercial benefit to the applicant in the case.

Reasonableness of the Decision

16. Section 66 (2)(d) requires the Tribunal to consider the reasonableness of “…the decision reviewed by the Tribunal”.  The “decision” referred to in the paragraph is the decision that the Tribunal has jurisdiction to review, ie in the present case the internal review decision made by Brigadier Wilson: see Re Paterson (No 2)(above) at [51]; Cashman (above) at 306-307 and Re WAJ (above) at [31].  It follows that decisions made in relation to the applicant’s request for access prior or subsequent to Brigadier Wilson’s decision are not relevant for the purposes of the paragraph.

17.     A decision will be “reasonable” if it is “acceptable to reason, something for which real and substantial grounds exist, not irrational, absurd or ridiculous”:   Searle  v PIAC (1992) 108 ALR 163 at 177-178. In judging the reasonableness of the agency’s decision to refuse to grant access, it is not necessary for the Tribunal to decide whether it would have upheld or rejected the claims of exemptions. “A decision refusing access may, in my view, be seen as “reasonable” if there was, on the evidence and material before the agency, a sound basis in law for claiming the exemption”: Re Paterson (No 2) (above) at [55].  The reasonableness or otherwise of the reviewable decision is to be judged objectively – according to the standards of a reasonable person: Re WAJ (above) at [35].  Further, as was said by Deputy President Thompson in Re Chan and Dept. of Immigration and Ethnic Affairs (No 2) (1985) 8 ALN N52 at N53:

“…the test is the reasonableness of the decision, not whether the tribunal would have decided that it was ‘the correct or preferable decision.’  The very fact that access has been given to the documents … raises at least a possibility that the decision might not have been regarded by the Tribunal  as the correct or preferable one.  But implicit in para (d) of ss 66(2) is recognition by the parliament that that is not necessarily inconsistent with the decision having been reasonable.”

18.     According to the T documents, when Brigadier Wilson was asked to undertake the internal review he was referred to the original decision that had been made in June 2003 to refuse access to the documents because they could not be located (T4).  A memorandum dated 18 September 2003 from the Defence Legal Service to the Brigadier (T7) that accompanied the file that was submitted to the Brigadier refers to extracts from a Department of Defence FOI manual, including guidance relating to sections 26 and 24A that the original decision-maker had relied on to refuse access. 

19.     In relation to the Jansen document, in his internal review decision Brigadier Wilson referred to the fact that a copy of the email had now been located and   explained his decision in a minute dated 13 October 2003 to the Department of Defence’s Director, Freedom of Information (T8) as follows:

“Having now considered Sgt Jansen’s email, I am satisfied it contains observations that are erroneous in fact and based largely upon supposition on the part of Sgt Jansen who, obviously, has no medical qualifications. Accordingly, I am of the view that disclosure of the email should be refused on two grounds, namely sections 41(1) and 43(1)(c)(i) [of the Act].”

20.     That decision was conveyed to the applicant by a memorandum dated 22 October 2003 from the Director (T9).  The Director referred to the Brigadier’s conclusions as set out above, but added that the Brigadier

“considered whether disclosure of the email with exempt information deleted was possible and reasonably practicable within the meaning of s 22 of the … Act but found that it was not.” 

I observe that there is nothing in T8 to indicate that the Brigadier did any such thing, although it may be implicit that he did so. 

21.     Under the heading “Reasons”, the Director set out in T9 what were said to be the reasons for the Brigadier’s decision in relation to the Jansen document in the following terms:

“8.       Sergeant Jansen’s e-mail contains criticisms of a Defence Force medical officer’s discharge of his professional medical duties.  These criticisms were not informed by medical competence on Sergeant Jansen’s part and have been judged to be erroneous. Publication of the criticisms would lead those who were apprised of them to unreasonably affect the practitioner’s professional affairs. In a different way, erroneous adverse judgement about competence of a person in discharge of his professional duties made by another person who is not qualified to make the judgement is not the kind of information that should be published. This consideration is underlined by the fact that disclosure of a document through FOI is unconditional. Brigadier Wilson refused to disclose the e-mail to prevent what could be an unjustified adverse effect on the professional affairs of the medical practitioner and to prevent the violation of medical officer’s privacy that would result from disclosure.”

22. Given that the Jansen document contained opinions about the competence of the medical officer concerned, it was, in my opinion, plausible for Brigadier Wilson to conclude that the document contained “personal information” about that officer as that term is defined in s 4 of the Act and that the information might adversely affect his professional affairs. In addition, as the Brigadier found that the email was erroneous in fact and that the opinions expressed were those of a medically unqualified person, it was plausible that he conclude that disclosure would be unreasonable. As explained above, whether or not the Tribunal would have agreed that the Brigadier’s decisions was the correct or preferable one and upheld the exemptions claimed is not the point. In the circumstances I am satisfied that there was sufficient basis for relying on the claimed exemptions to conclude that the reviewable decision was a reasonable one in the sense required by s 66 (2)(d).

Other Relevant Considerations

23. The applicant has contended that the Tribunal should exercise its general discretion conferred by s 66(1) in favour of the applicant because of unreasonable delay by the respondent in consulting the medical officer concerned to see if he had any objection to the release of the Jansen document to the applicant. It is contended that if the respondent had consulted the medical officer earlier the proceedings would have been brought to an end at a much earlier date, and the applicant would not have incurred all of the legal costs that have in fact been incurred. For the respondent it has been contended that there has been no unreasonable delay.

24.In Re Paterson (No 2) at [36] D. P. Hall said that:

“Section 3(2) of the Act directs that any discretion conferred by the Act is to be exercised as far as possible to facilitate and promote, promptly and at the lowest cost, the disclosure of information. It follows, in my view that, for the purposes of s 66 of the Act, conduct on the part of an agency that has caused unreasonable delay and unnecessary costs in obtaining the disclosure of information to which an applicant is entitled under the Act may properly be taken into account …”.

25. The applicant’s application for review of Brigadier Wilson’s decision was lodged with the Tribunal on 18 December 2003 only in respect of the decision made in respect of the Jansen document. A preliminary conference was held on 19 February 2004 and on that date the applicability of ss 41 and 43 of the Act remained an issue to be determined in the proceedings.

26. By letter dated 5 April 2004 (Annexure 1 to Exhibit A), the respondent’s solicitor informed the applicant and the Tribunal that the respondent was in the process of consulting the medical officer concerned pursuant to the provisions of ss 59 and 59A of the Act in an effort to establish whether the medical officer wished to become a party in the Tribunal proceedings, or had a view about the release of the Jansen document. It appears from Exhibits A and B that on 14 April 2004 the respondent’s solicitor informed the applicant’s solicitor that the respondent would no longer rely on the exemption in s 43 of the Act, but that the respondent’s position in relation to s 41 remained to be finalised pending further consultation with the medical officer. On 20 April 2004 the respondent’s solicitor informed the applicant’s solicitor that the medical officer did not wish to become a party in the proceedings and did not object to the release of the Jansen document. Accordingly, the respondent would grant access to the document.

27. The applicant has contended that the respondent should have consulted the medical officer at a much earlier date. Sections 27 and 27A of the Act require an agency, before making a decision to grant access to a document that contains information that may be exempt under ss 41 or 43 of the Act, to give a person to whom the information relates a reasonable opportunity to make submissions in support of a contention that the document is exempt under those sections. However, because the respondent never considered granting access to the Jansen document prior to the application being made to the Tribunal for review, the need for the respondent to consult the medical officer under ss 27 or 27A did not arise. It would, of course, have been open to the respondent to consult the medical officer at an early stage to ascertain whether he had a view about the release of the document, but a failure to do so does not, in my opinion, constitute unreasonable behaviour by the respondent.

28. However, once the decision had been made by the respondent to refuse access to the Jansen document on the basis of the ss 41 and 43 exemptions, and the applicant had made his application to the Tribunal for review of that decision, the provisions of ss 59 and 59A became applicable. Those two sections require an agency in the position of the respondent to notify the person about whom the information relates “as soon as practicable” after the application to the Tribunal is made, so that the person concerned can decide whether he or she wishes to apply to become a party in the proceedings before the Tribunal. It is apparent from the written submissions made on behalf of the respondent that the notification and consultation process contemplated by ss 59 and 59A did not commence until some time after the holding of the preliminary conference.

29. However, as noted above, by 14 April 2004 the applicant was aware that the respondent would no longer be relying upon s 43 and by 20 April 2004 the applicant was aware that the document was to be released. In other words, by almost three weeks before the scheduled hearing date of the proceedings the applicant was aware of the respondent’s position. That was not what was described by Deputy President Todd in Re Rae and Department of Arts Heritage and Environment (1985) 7ALD 449 at 452 as “the 11^th hour”. In the circumstances, although I consider that the respondent’s ultimate concession may well have occurred earlier had the respondent complied with ss 59 and 59A at an earlier time, the concession was not so late as to be regarded as unreasonably delaying access to the documents.

30. In all the circumstances of the matter, having regard to the views I have expressed in relation to both the considerations prescribed by s 66(2) of the Act and the other general relevant considerations, I conclude that it would not be appropriate to exercise the discretion available under s 66(1) in the applicant’s favour. Accordingly, I decline to make a recommendation that the applicant’s costs in relation to the review proceedings before the Tribunal be paid by the Commonwealth.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Allen, Member

Signed:         .................(sgd V Wong)..............................
  Associate

Date of Hearing  10 May 2004
Date of Decision  25 October 2004
Counsel for the Applicant         Mr M Fatharly 
Solicitor for the Applicant          Kott Gunning
Counsel for the Respondent     Mr T Carey
Solicitor for the Respondent     Australian Government Solicitor