Latham v Director General, Department of Community Services

[2000] NSWADT 58

CITATION:

Latham -v- Director General, Department of Community Services [2000] NSWADT 58

DIVISION:

General Division

PARTIES:

APPLICANT
Paul Latham

RESPONDENT
Director General

RESPONDENT
Director General, Department of Community Services

FILE NUMBER:

993212

HEARING DATES:

06/12/99

SUBMISSIONS CLOSED:

12/06/1999

DATE OF DECISION:

05/12/2000

BEFORE:

Hennessy N (Deputy President)

APPLICATION:

access to documents - Freedom of Information Act - access to documents

MATTER FOR DECISION:

Principal matter

LEGISLATION CITED:

Freedom of Information Act 1989

CASES CITED:

Re Scholes and the Australian Federal Police (1996) 44 ALD 299
Department of Health -v- Jephcott (1985) 62 ALR 421
Re Liddell and Department of Social Security (1989) 20 ALD 259
Sankey -v- Whilam; Coastal States Gas Corporation -v- Department of Energy (1978) 142 CLR 1
Hudson as Agent for Fencray Pty Ltd -v- Department of the Premier, Economic and Trade Development (1993) 1 QAR 123
Re Evans and Ministry for the Arts (1986) 1 VAR 315
Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112
Bennett -v- Vice-Chancellor, University of New England [2000] NSWADT 8
Re Pemberton and the University of Queensland, Decisioon No. 94032, 5/12/94, unreported
Re JE Waterford and Department of Treasury (No. 2)
Mangoplah Pastoral Co Pty Ltd-v- Great Southern Energy [1999] NSWADT 93 (30 September 1999)

REPRESENTATION:

APPLICANT
R Sproule, agent
RESPONDENT
J Korathota, solicitor

ORDERS:

1. The agency’s decision not to disclose the following documents to the applicant is affirmed:· pages 19 and 20; and· page 6.; 2. The agency’s decision not to disclose the following documents to the applicant is set aside:· pages 65-75;· pages 76-82;· pages 44-46, 109-111, and 10-12;· pages 58-64;· pages 120-128;· pages 31-41;· pages 1-4;· pages 22, 24 and 42; and· pages 117-119.; 3. In place of the decision not to disclose the documents listed in paragraph 2 above, the Tribunal makes a decision to disclose those documents to the applicant.

Introduction

1 On 5 July 1999 Paul Latham, an employee of the Department of Community Services, (the agency) applied for access under the Freedom of Information Act 1989 (FOI Act) for “all correspondence internally and between the Department and Workcover re claim by Paul Latham for workers compensation.” Mr Latham attached a list to this application which set out several specific documents including “Fact Finding Interviews re alleged incident” and “Senior Officers report re Fact Finding interview.”

2 The agency provided a substantive reply on 19 August 1999 advising that Mr Latham’s request comprised 130 folios. Access was granted in full to 61 folios. Access was granted in part to two documents, with exempt matter deleted, and access to the remainder of the documents was denied. In relation to most of the documents the reason for denying access was that they were “internal working documents” and therefore exempt from disclosure under Schedule 1, Clause 9 of the FOI Act.

3 Mr Latham, through his agent Mr Sproule, requested an internal review of this decision on 26 August 1999. The internal review was limited to the documents to which access was refused in full. The review, dated 22 September 1999, affirmed the original decision.

4 On 6 September 1999, Mr Latham lodged an application with the Tribunal for a review of the agency’s decision.

5 The background to this case is that Mr Latham was working as a casual employee with the agency at a group home for people with an intellectual disability. As a result of some information being given to the agency alleging that an employee at the group home had been verbally and physically abusing clients, the agency undertook some investigations to determine whether any disciplinary or other action should be taken against Mr Latham.

Concerns about the investigation

6 Mr Latham expressed serious concerns about the investigation and about the way in which his FOI application was handled. He maintains that his treatment was not reasonable and did not accord with procedural fairness. He alleges that the agency did not comply with its obligations under various statutes, particularly the Public Sector Management Act1988.

7 As real as these issue are for Mr Latham, the main role for the Tribunal in this matter is to determine whether the agency made the correct and preferable decision in denying Mr Latham access to several documents. In addition, the Tribunal can report improper conduct if an officer of an agency has failed to exercise, in good faith, a function conferred or imposed by the FOI Act. Section 58 of the FOI Acts states that:

If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency.

8 Although Mr Latham made allegations about the agency failing to comply with time periods and failing to include many of the documents requested in the Schedule, I do not have sufficient evidence on which I could form an opinion that an officer of the agency has failed to exercise in good faith a function conferred or imposed on the officer by the Act. In particular, there is no evidence that the time delays or the alleged omission of documents was a result of “bad faith” on the part of the agency.

Jurisdiction

9 The Tribunal has the power to hear this matter under s 53(1) of the FOI Act. That section states that:

A person who is aggrieved by a determination made by an agency or Minister under or may apply to the Tribunal for a review of the determination.

10 In this case one of the determinations made under s 24 was to refuse access to certain documents.

Documents in dispute and basis for exemption claim

Pages	Date	Author	Description	Exemption
65-75	various	Witnesses and Merrill Patton, Asst Manager, Disabilities	Transcript of interviews with witnesses	Clause 4(1)(b) Clause 9(1)
76-82	24/5/95	House Manager	Transcript of interview	Clause 9(1) and Clause 4(1)(b)
44-46, 109-111, 10-12	29/3/99	Jackie Pitchford, ACM Ryde CSC	Briefing Note (3 copies)	Clause 9(1)
58-64	Undated	Unsigned	Working copy - fact finding Interview	Clause 9(1)
120-128	15/6/99	M Patton	Fact Finding Investigation Report Relating to Allegations of physical and verbal abuse of clients	Clause 9(1)
31-41	8/7/99	S Israel, Professional Conduct Officer	Review of Fact Finding Investigation and draft letters	Clause 9(1)
1-4	19/7/99 & 28/5/99	N Brett, Human Resources Manager, Northern Sydney	Letters and report to GIO Injury Management Centre	Clause 9(1)
19-24 and 42	various	M Patton and N Brett	e-mail messages	Clause 9(1)
117-119	various	various	Summary	Clause 9(1)
6	21/4/99	M Patton	Draft letter	Clause 9(1)

Relevant legislation

11. Under s 16 of the FOI Act, “A person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act.” Section 25(1)(a) states that:

An agency may refuse access to a document:
(a) if it is an exempt document
“Exempt documents” are defined in s 6 to include “a document referred to in any one or more of the provisions of Schedule 1.”

12 Clause 9 of Schedule 1 states that:

(1) A document is an exempt document if it contains matter the disclosure of which:
(a) would disclose:
(i) any opinion, advice or recommendation that has been obtained, prepared or recorded; or
(ii) any consultation or deliberation that has taken place,
in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency and
(b) would, on balance, be contrary to the public interest.
(2) A document is not an exempt document by virtue of this clause if it merely consists of:
(a) matter that appears in an agency’s policy document;
or
(b) factual or statistical material.

13 The relevant provisions of Clause 4 of Schedule 1 are as follows:

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, or
(2) A document is not an exempt document by virtue of subclause (1):
(a) if it merely consists of:
(i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or
(ii) a document containing a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
(iii) a report on the degree of success achieved in any programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
(iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or
(v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and
(b) if disclosure of the document would, on balance, be in the public interest.

14 The agency has the burden of proving that their determination is justified. Section 61 of the FOI Act states that:

In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister.

15 Section 25(4) provides that:

An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):
(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and
(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.

Issues

16 Mr Latham raised two preliminary issues which can be dealt with shortly. First, he challenged the agency’s right to change the basis for its decision after the internal review had been completed. In its submissions to the Tribunal, the agency added Clause 9(1) as an additional basis for refusing access to pages 65 to 75. They also added Clause 4(1)(b) as an additional basis for refusing access to pages 76-82.

17 There is nothing in the legislation to prevent an agency from changing or adding to the grounds for its decision prior to the hearing as long as the applicant has sufficient opportunity to respond to the amended reasons.

18 The second issue is that Mr Latham already has some of the documents in dispute. The agency agreed that this could not be a basis for refusing access under the FOI Act. Section 25 of the FOI Act, which sets out the grounds on which access can be refused, does not include the ground that the applicant already has a copy of the document.

19 The substantive issue in the case is whether any of the documents are exempt documents because they come within the provisions of Clause 9(1) or Clause 4(1)(b) of Schedule 1 to the FOI Act.

Evidence

20 Ms Marian Birrell, Manager of the Professional Conduct Unit (PCU) within the agency, stated that the PCU was set up about nine months ago to improve the Department’s response to issues involving staff misconduct and to ensure consistency in fact finding and disciplinary inquiries within the Department. Fact finding investigations are reviewed by the PCU where a recommendation is made to proceed with formal disciplinary inquiries or where a decision maker is uncertain about what to do.

21 According to Ms Birrell, the PCU was involved in reviewing the fact-finding investigation relating to Mr Latham prior to it being finalised. In her view:

It is crucial that the PCU is able to give free and frank advice to an investigator when they are considering a fact-finding investigation.
If a review of a fact finding investigation made by the PCU is released as a matter of course under FOI, the PCU’s ability to perform its functions would be seriously undermined. I it important that the Unit is able to advice (sic) decision-makers in a proper, confidential way.

22 Mr Latham tendered several documents, most of which are not relevant to the question of whether he should be given access to the documents in dispute. He did include documents in relation to his FOI application and agency and government policy on FOI issues which are relevant.

Application of legal principles to the documents in dispute

23 Each of the documents over which an exemption is claimed will be considered in turn.

24 Pages 65-75. These pages comprise transcripts of interviews conducted by Ms Merrill Patton, Assistant Manager, Disabilities, with three witnesses. There are also three letters from the agency to the respective witnesses. The agency claims that these are exempt documents under Clause 4(1)(b) and Clause 9(1) of Schedule 1.

25 In order to make out the exemption under Clause 4(1)(b) the agency must establish that disclosure would enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained.

26 There are three elements to this exemption namely:

• the source of information must be confidential;
• there must be a reasonable expectation that a confidential source of information will be revealed; and
• the information must relate to the enforcement or administration of the law.

27 In his written submissions to the Tribunal, Mr Sproule, agent for Mr Latham, stated that:

As pointed out in the request for an internal review, the names of the witnesses were immaterial as both their names and the company that employed them is known. The main interest is that these interviews were unsigned, and therefore of concern, particularly as it is considered the alleged incident is a malicious allegation. As the names (names of three individuals and employer given) are known, it is difficult to maintain an exemption under s 4(1)(b) which is to protect their identify (sic). No effort has been made by the plaintiff to contact these people. (Words in brackets added to comply with s 55 of the FOI Act which prevents the Tribunal from disclosing any allegedly exempt matter in its decision.)

28 In their written submission the agency made the following observations in relation to these documents:

The applicant claims to know the names of the witnesses who have been interviewed. This is not surprising, given the circumstances. It also appears from the contents of Ms Patton’s interview with Paul Latham and Mr Sproule that the transcripts of interviews with the workers may have been released to Mr Latham prior to the FOI application being made.
The Department concedes that the fact that the document or the contents of a document have been “leaked” does not affect an application for access to those documents. However, it is submitted that release of the document or the contents of that document via FOI could confirm the authenticity of the “leak” and may itself cause damage.

29 These submissions raise the question of whether there can be a reasonable expectation that the identity of a source of information could be disclosed when the applicant already knows the identity of the source of information. In Re Scholes and the Australian Federal Police (1996) 44 ALD 299 the Administrative Appeals Tribunal (AAT) considered an application under s 37(1)(b) of the Freedom of Information Act (Cth) 1982 (the equivalent provision to Clause 4(1)(b) of the FOI Act). The AAT held that in a situation where documents had already been disclosed pursuant to an FOI application by another agency (in that case the Director of Public Prosecutions (DPP)) further release would not disclose anything. The AAT said that:

We are satisfied that the release, by the DPP to Mr Scholes, of copies of those statements has already given him access to any information which may be contained in those documents and which would disclose, or enable him to ascertain the existence or identity of, a confidential source of information in relation to the enforcement of the law. (at p 306)

30 In this case, the documents have been disclosed by the same agency to which the FOI application was made. But that does not change the fact that the identity of the source of information, whether it be confidential or not, cannot reasonably be expected to be disclosed because that identity is already known to the applicant. Consequently one of the elements of Clause 9(1) has not been made out.

31 Even if I am wrong on this point, there is no evidence that the source of information was confidential. In the Federal Court decision of Department of Health v Jephcott (1985) 62 ALR 421 at 425, Forster J held in relation to the equivalent provision in the Commonwealth legislation, that a source of information will be confidential if the information is provided under an express or implied pledge of confidentiality. Forster J also noted that “when considering whether or not it is established that a source is a ‘confidential source’ it must be borne in mind that the onus is on the agency, . . . to establish it on, I presume, the balance of probabilities.”

32 There was no evidence of any express agreement of confidentiality between the witnesses and the agency. Consequently any obligation of confidence must arise impliedly. In Re Liddell and Department of Social Security (1989) 20 ALD 259, the AAT decided that in the absence of any concrete evidence they could not be satisfied that an obligation of confidence arose. In this case, the agency did not put forward any evidence which would allow me to find that an obligation of confidence existed. In particular, there was no material which would tend to show that these witnesses wished to have their identity kept confidential. If the agency was concerned about the possibility of disclosing exempt material in adducing such evidence, it could have relied on section 55(b) of the FOI Act which states that:

In determining a review application, the Tribunal:
(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative.

33 The agency has the onus of proving that their determination is justified. On the basis of the evidence and submissions at least two of the elements of Clause 4(1)(b) have not been made out and pages 65-75 are not exempt documents pursuant to that clause.

34 In relation to the internal working documents exemption, the agency’s view was that the interviews could be defined as a “consultation or deliberation” that has taken place in the course of the decision-making functions of the Department. They submitted that “if these documents were released, the freedom that exists within the Department that allows the flow of uninhibited opinions to decision-makers could be jeopardised.” The agency quoted Sankey v Whitlam; Coastal States Gas Corporation v Department of Energy (1978) 142 CLR 1 in support of this proposition.

35 Under Clause 9(2)(b) a document is not an exempt document if it “merely consists of factual or statistical material.” In Hudson as Agent for Fencray Pty Ltd v Department of the Premier, Economic and Trade Development (1993) 1 QAR 123, the Queensland Information Commissioner surveyed the relevant case law interpreting the equivalent provision in the Freedom of Information Act 1982 (Qld) and came to the following conclusion at paragraph 52:

Thus a commonsense approach should be taken to the task of characterising matter as factual matter or otherwise, according to its substance (i.e. its substantive nature or character) rather than merely to semantics (i.e. merely by reference to the particular terms in which it is couched). Material which contains elements of judgment or opinion concerning purely factual matters may still be capable, depending on its context and its purpose in that context, of properly being characterised as merely factual matter.

36 Having looked at the transcript of the interviews recorded in pages 65-75, I am of the view that the exception in Clause 9(2) applies in this case. While the witnesses expressed some views in relation to the incidents they were describing, the nature or character of the document was as a factual record of what the witnesses had observed.

37 Conclusion. On the basis of these findings, pages 65-75 do not fall within Clause 4(1)(b) or Clause 9(1) of Schedule 1 to the FOI Act and consequently the agency’s decision not to give access to these pages is set aside and in substitution for that decision, a decision is made to provide the applicant with access to these pages.

38 Pages 76-82. These pages comprises a transcript of an interview between Merrill Patton, Assistant Manager, Disabilities and the House Manager for the group home where Mr Latham was employed.

39 The agency’s submission in relation to this document was that it is exempt under Clause 4(1)(b) and under Clause 9(1). In their view it was prepared in the course of gathering information for the fact finding investigation report and it amounts to “consultation or deliberation” that has taken place in the course of the decision making functions of the Department.

40 Mr Latham submitted in relation to this document that “the identity of the person and his position is known, ie (name stated) who works for the Department of Community Services. The reason for (this person’s) interview was as a result of concerns expressed at Paul Latham’s interview that he, (the person concerned), could be the instigator of the allegations.”(Words in brackets added to comply with s 55 of the FOI Act which prevents the Tribunal from disclosing any allegedly exempt matter in its decision.)

41 For the same reasons as I expressed above, Clause 4(1)(b) does not apply to this case because Mr Latham already knows the identity of the source of the information so the disclosure of the document could not reasonably be expected to enable that identity to be ascertained.

42 Further, there was no evidence of any express or implied pledge of confidentiality between the witness and the agency. Consequently I am not satisfied that the exemption in Clause 4(1)(b) has been made out.

43 In relation to Clause 9(1), the internal working documents exemption, the agency says that pages 76-82 were prepared in the course of gathering information for the fact finding investigation report.

44 Clause 9(1) will not apply to these pages if they can be characterised as consisting merely of factual or statistical material in accordance with Clause 9(2).

45 After examining these pages I am satisfied that they do merely consist of factual material. While they contain some of the witness’s views, these views are incidental to the substance of the documents which is factual. The transcript was obtained in the course of a fact finding investigation and its purpose was to obtain factual information, not to obtain the witnesses’ opinions, advice or recommendations.

46 If I am wrong in this conclusion, I am not satisfied that this document comes within the provisions of Clause 9(1). The elements of the internal working documents exemption are that the document must:

• disclose an opinion, advice or recommendation; or any consultation or deliberation that has taken place
• in the course of, or for the purpose of, the decision making functions of an agency and
• would, on balance be contrary to the public interest.

47 If I assume that the transcript of interview with the house manager does contain opinions recorded, the second requirement is that the opinions have been recorded in the course of, or for the purpose of, the decision making functions of the agency. Mr Latham submitted that the process involved in this case was not in the course of the decision making functions of that the Department of Community Services was created to perform. In his view the disciplinary process is a generic administrative process that applies to all agencies.

48 The agency did not specifically identify the decision making function concerned in this case but they did say that the recommendations were in the context of the agency’s investigations concerning the allegations of physical and verbal abuse of clients in the Group Home. It is apparent from the material provided that the decision making function involved was whether Mr Latham, a casual employee of the agency, should be disciplined in relation to his conduct and/or whether any other action should be taken such as referral of the matter to the police. I am satisfied that this is a decision making function of the agency. It does not matter whether or not other agencies share the same functions.

49 The final requirement of Clause 9(1) is that disclosure would, on balance, be contrary to the public interest. Public interest is not defined in the FOI Act, but s 59A is relevant. That section states that:

For the purpose of determining under this Act whether the disclosure of a document would be contrary to the public interest it is irrelevant that the disclosure may:
a) cause embarrassment to the Government or a loss of confidence in the Government, or
b) cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.

50 The agency relied on the submission that disclosure would be contrary to the public interest because it would limit frankness and candour in future pre-decisional communications. They also relied on Re Evans and Ministry for the Arts (1986) 1 VAR 315 to support their submission.

51 The public policy underlying the internal working documents exception is that it is legitimate to preserve the secrecy of recommendations and deliberations among public servants so as to protect the “integrity and viability of the decision-making process.” (See Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112 at 123.) However, as I concluded in Bennett -v- Vice Chancellor, University of New England [2000] NSWADT 8 "protecting the viability of the decision-making process" without more, is too vague a concept to be considered a legitimate public interest.

52 When considering whether disclosure would be contrary to the public interest appropriate weight must be accorded to the public interest objects of the legislation. In the New South Wales context, one of the objects of the FOI Act is to "obtain access to information held by Government" (s 5(1)(a)). The Act seeks to achieve this by means which include "conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government" (s 5(2)(b)).

53 In this case Mr Latham has an interest, as a member of the public, in having access to documents which concern him to enable him to understand the basis and reasoning of the decisions which relate to him and to evaluate the conduct of the agency in relation to that decision making process.

54 Mr Latham quoted the decision of the Queensland Information Commissioner in Re Pemberton and the University of Queensland, Decision No 94032, 5/12/94, unreported as saying that there is a public interest in an applicant “being given access to documents that will enable the applicant to assess whether or not fair treatment has been received.”

55 In Re JE Waterford and Department of Treasury (No 2), the AAT made the following comments in relation to the meaning of “deliberation” in the equivalent provision in the Commonwealth FOI Act and said at paragraphs 58-60

The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. . . . .
Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s.36(1)(a) applies.
It is documents containing opinion, advice, recommendations etc. relating to the internal processes of deliberation that are potentially shielded from disclosure - documents that might, perhaps, have been more aptly described in the headnote as 'Internal Thinking Documents'.

56 Even though these paragraphs concern the meaning of “deliberation” they highlight some of the public policy considerations relevant to the internal working documents exemption. In particular, there is, in my view, a legitimate public policy interest in agency’s being free to “think” about decisions and to record their deliberations without having to disclose those thought processes. Giving access to the content of documents which merely represent the “thought processes” of the agency prior to any final or operative decision being made would make officers much more circumspect and self-conscious about the content of those documents and would inhibit the free flow of ideas and options. However once a decision becomes final or operative, it will be much more difficult to establish that disclose would be contrary to the public interest.

57 Any opinions expressed in the transcript of interview with the house manager are part of the information collection process that the agency undertook. Those opinions do not represent the agency’s thought processes, they merely provide information which is relevant to any decisions the agency may make. Disclosing such information would not inhibit the free flow of ideas of options and is not contrary to the public interest..

58 Conclusion. On the basis of these findings, pages 76-82 do not fall within Clause 4(1)(b) or Clause 9(1) of Schedule 1 to the FOI Act and consequently the agency’s decision not to give access to these pages is set aside and in substitution for that decision, a decision is made to provide the applicant with access to these pages.

59 Pages 44-46, 109-111, 10-12. These pages comprise three copies of a briefing note. Although the agency recorded that the author was not indicated, all three copies of the document record that it was prepared by Ms Jackie Pitchford, ACM, Ryde Community Service Centre and endorsed by Ken Burke District Manager, Ryde Community Service Centre. There is no indication on the briefing note as to the intended recipient. The agency submitted that “briefing notes are used to provide information to the Director-General, Minister or some other senior person within the Department.”

60 The agency relied on Clause 9(1), the internal working documents exemption, and submitted that:

The specific briefing note in question provides the views and recommendations of the author and endorsing officer on a particular issue. It is conceded that the briefing note does contain some factual background material, but it cannot be separated from the exempt material due to their close association with material that falls squarely within the exemption.

61 Mr Latham’s submission in relation to this document was that if it refers to him “they are difficult to relate to the decision making functions of the agency.”

62 The initial question is whether the document merely consists of factual material which would bring it within the exception in Clause 9(2). The material under the headings “Background”, “Key Issues” and “Attachments” is factual material. The material under the heading “Recommendations” are not. Before considering whether it is appropriate to give access to the factual material, I will consider the material under the heading “Recommendations” and determine whether that material should have been exempted under Clause 9(1).

63 The briefing note contains recommendations recorded in the course of the decision making functions of the agency. Consequently the first two elements of the exemption are satisfied.

64 In relation to the public policy considerations, the recommendations in this case relate the course of action that the agency should take on the basis of the background information and issues presented in the briefing note. These recommendations were endorsed by a senior officer and represent a final or operative decision of the agency. Disclosure would not reveal the agency’s “thought processes” as the recommendations were apparently carried out. The document provides the basis for the decision to make those recommendations and it is in the public interest that those reasons are disclosed.

65 Conclusion. On the basis of these findings, the material under the heading “Recommendations” on pages 44-46, 109-111, 10-12 does not fall within the exemption in Clause 9(1) of Schedule 1 to the FOI Act. The material under the heading “Background” and “Key Issues” and “Attachments” merely consists of factual material. Consequently all three copies of the entire document should be disclosed.

66 Pages 58-64. The agency was not able to identify the author of this document. It is headed “Working Copy Fact Finding Interview.” It is not a transcript of an interview and reads more like a submission on behalf of Mr Latham.

67 The agency submits that “it appears to be a working document that was considered by the investigator in the preparation of her final report. It can be said to be an opinion that was obtained by the decision-maker in the process of her decision making functions in relation to the matter.”

68 The initial question is whether it merely consists of factual material pursuant to Clause 9(2)(b) in which case it would not be an exempt document. The document does contain some factual material but it is also contains opinions and observations which are intended to influence the person who is in a position to make a judgement about the alleged physical and verbal abuse of clients by Mr Latham. The document is not merely a record of factual material, it contains opinions and submissions. In this case the factual information and the opinions and submissions are inextricably linked so that it would not be practical to separate them.

69 The first two elements of Clause 9(1) are made out because the document contains opinions recorded for the purpose of the decision making functions of the agency. In relation to the public interest consideration, this document resembles a submission or a reference made on behalf of the applicant. It is material which was relevant for the agency to take into account in forming a view of the matter, but it does not reflect any of the thought processes of the agency and its disclosure would not inhibit the free flow of ideas and options. In addition, the agency did not identify any concrete adverse effect on the agency, if opinions such as these are disclosed.

70 Conclusion. The decision of the agency in relation to the document at Pages 58-64, is set aside and instead a decision is made to grant the applicant access to that document.

71 Pages 120-128. This document is the Fact Finding Investigation Report prepared by Merrill Patton. It contains an analysis of the evidence, conclusions based on that evidence and recommendations.

72 The agency’s submission in relation to this document is that:

The usual procedure that is followed by the Department is to release a fact finding report in relation to the staff members concerned only if further disciplinary action is to be taken against the staff member. This is so that they can respond to the disciplinary action. If no disciplinary action is to be taken (as in this case) the fact finding report is not released.

73 The first two elements of Clause 9(1) have been made out because the document contains opinions and recommendations made in the course of a decision making function of the agency. However parts of the document, namely the information under the headings “Background” “Information Gathered” and “The Interviews” merely consists of factual information and should be disclosed. The information under the heading “Findings” “Additional Considerations” and “Recommendations” contains opinions and recommendations which are inextricably linked to factual material so they do not come within the exception in Clause 9(2)(b). The first and second elements of Clause 9(1) are satisfied in relation to these parts of the document.

74 This report was given to the PCU for assessment. The report by the PCU (pages 31-41) provided a summary and comments on the Fact Finding Investigation Report and recommended further action which was consistent with the original report but which recommended some further investigation and some specific “disciplinary” action. Since there was no oral evidence given in this regard, I can only rely on the documentation before me which indicates that the PCU assessment supported the findings and recommendations of Merrill Patton. In these circumstances, the Fact Finding Investigation Report cannot be considered as part of the agency’s thought processes or deliberations made in the course of a decision making function. This document represents a final decision of the agency, given that the PCU report supported it.

75 The agency conceded that fact finding investigation reports are normally given to the person concerned if further disciplinary action is to be taken but not otherwise. This justification is not convincing especially since in this case some further disciplinary action was recommended. This document represents a final conclusion of the agency. The PCU made more specific recommendations which were consistent with the broad recommendations made in the report. Mr Latham was the subject of an investigation which came to some conclusions on the basis of the evidence. In these circumstances, there is a very strong public policy consideration in favour of disclosing that report to Mr Latham as it represents the agency’s final conclusions in relation to some issues. Denying Mr Latham access to this document would deny him access to those conclusions and the reasoning on which they were based.

76 Conclusion. The agency was unable to satisfy me that it would, on balance, be contrary to the public interest to disclose this document and their decision that it is exempt under Clause 9(1) is set aside.

77 Pages 31-41. This is the Review of the Fact Finding Investigation and draft letters conducted by S Israel.

78 The agency’s submission in relation to this document is that:

Ms Israel’s review of the Fact Finding Investigation conducted by Ms Patton makes certain comments on the report prepared by the investigator. It also recommends what further action requires (sic) to be taken by the investigator and contains a draft letter to be sent to the intended recipient. This clearly brings the document within Clause 9(1)(a) of Schedule 1 as being “any opinion, advice or recommendation” that has been prepared in the course of the Department’s decision making functions in relation to this matter.

79 The agency maintains that the document does not include any factual or statistical material, which it concedes would not be exempt. I accept that the substance of the report is not factual or statistical material, but rather an assessment of the fact finding investigation report. It contains opinions and recommendations made in the course of the decision making functions of the agency.

80 In relation to the public interest test, the agency relied on the evidence of Ms Birrell and submitted that:

“If access to the PCU’s documents were given to applicants . . . it would undermine the very purpose for which the unit was created. It is important that the PCU is able to give fearless and frank advice to a decision-maker so that they are able to make proper decision in relation to the fact-finding investigations without pre-empting the delegate’s decision in relation to the fact finding investigations.”

81 This document contains comments on the findings of the investigation report and specific recommendations. I assume that these recommendations were followed as there is no evidence to the contrary. In that case, the document represents a final decision in relation to Mr Latham’s matter rather than the “thought processes” leading to a decision. It is not clear how the disclosure of this information would inhibit the ability of the officers in the CPU giving full and frank advice. As I indicated above, officers are likely to feel inhibited in expressing options and ideas (or at least in recording those matters) if every thought process was open to the scrutiny of the public. However this document does not represent the “thought processes” of the agency, it represents a concluded view which was acted on. Mr Latham’s public interest in knowing the basis for that view outweighs any public interest in keeping it secret.

82 Conclusion. Consequently, the agency was unable to satisfy me that it would, on balance, be contrary to the public interest to disclose this document and their decision that it is exempt under Clause 9(1) is set aside.

83 Pages 1-4. These pages comprise three documents. The first (page 1) is an undated letter from Nathalie Bratt, Human Resources Manager with the agency, to the Government Insurance Office (GIO) in relation to Mr Latham. The second (page 4) is a memo entitled “Report to GIO Injury Management Centre Re Mr P Latham” prepared by Jacklyn Pitchford on 28 May 1999 and attached to the letter (page 1). The third (pages 2 and 3) is a memorandum from Nathalie Bratt to the GIO in relation to a Request for Information in relation to Mr Latham.

84 The agency’s submission in relation to these documents is that “while the Workers compensation claim is somewhat separate from the disciplinary investigation, the documents that were sent to the GIO were the initial documents that led to the substantive fact finding investigation.” The agency appears to be submitting that because these documents were provided to the GIO prior to the allegations being fully investigated, they should not be released.

85 Pages 1 and 4 merely consist of factual material. On that basis they are not exempt under Clause 9(1).

86 Pages 2 and 3 outline the procedures followed by the agency in relation to this matter. Again these pages merely consist of factual material and are not exempt under Clause 9(1).

87 Conclusion. The agency’s decision not to disclose Pages 1-4 is set aside. In substitution for the agency’s decision, a decision is made to grant access to those pages.

88 Pages 19-24 and 42. These documents are email messages between Merrill Patton and Nathalie Bratt (dated 11 June 1999); Nathalie Bratt and the Area Manager, North Sydney (dated 31 may 1999); Ken Burke and Nathalie Bratt (dated 6 May 1999); Merrill Patton and Area Manger at North Sydney (dated 6 May 1999) and Nathalie Bratt and Leon Newberry (dated 14 July 1999). The agency advised that Pages 23 and 21 have been disclosed to the applicant.

89 The agency submits that the e-mails contain updates in relation to the progress of the matter and opinions of staff members and recommendations in relation to action needed to be taken. According to the agency, “Most of the communication took place in confidence.”

90 Mr Latham submits that updates in relation to progress do not constitute part of the decision making functions as defined. Furthermore the agency has not made any submissions as to why their release would be contrary to the public interest.

91 Page 24 does not contain any opinion, advice or recommendation or any consultation or deliberation. It is merely a question about the progress of the matter and is not exempt under Clause 9(1).

92 Page 22 contains a summary of various conversations with other officers and Ms Latham, the applicant’s wife. Again it does not contain any opinion, advice or recommendation or any consultation or deliberation and is not exempt under Clause 9(1).

93 Page 20 contains a recommendation which relates to the decision-making function of the agency. It is difficult to properly analyse the public interest considerations involved in disclosing this document without revealing the nature of that recommendation. However, it relates to the agency’s thought processes in relation to a number of sensitive issues. I am satisfied that disclosure of this kind of information would inhibit the discussion and recording of such concerns. That public interest consideration outweighs Mr Latham’s interest in knowing the content of these concerns in this case.

94 Page 19 contains an opinion and deliberations made in the course of the decision making functions of the agency. On balance I am satisfied that it would be contrary to the public interest to disclose them because rather than representing a concluded view, they represent the thought processes of the agency and disclosure would inhibit free and frank discussion of these issues in the future.

95 Page 42 contains a recommendation but its disclosure would not be contrary to the public interest because it is a final decision.

96 Conclusion. The agency’s decision not to disclose pages 22, 24 and 42 is set aside. In its place a decision is made to provide the applicant with access to those documents. The decision of the agency not to disclose pages 19 and 20 is affirmed.

97 Pages 117-119. This document is a brief chronology of events and action taken in relation to the matter between 29 March 1999 and 15 June 1999.

98 The agency’s submission is that the document is an aide-memoir for their own ease of decision making, and in the course of their decision making functions, will fall into the category of an internal working document.

99 These pages merely consist of factual material and are not exempt under Clause 9(1).

100 Conclusion: The decision of the agency not to disclose pages 117-119 is set aside. In its place a decision is made to provide the applicant with access to these pages.

101 Page 6. This document is a draft letter from Merrill Patton to Mr Latham sent for approval and comment to another officer. The final form of the draft letter was sent to Mr Latham and released to him under pursuant to this FOI application. The draft letter contains a deliberation that has taken place in the course of the decision-making function of the agency. It would be contrary to the public interest to disclose it because it would inhibit the “thought processes” of the agency if such a draft letter was disclosed. The final letter was sent to Mr Latham and there is no public interest in him knowing what was in the mind of the officer who drafted the letter given that a different version was finally sent.

102 Conclusion. The decision of the agency not to disclose page 6 is affirmed.

Overriding discretion

103 One issue not raised at the hearing was whether the Tribunal has an overriding discretion to make a decision disclosing a document even if it is satisfied that the document comes within an exemption in the FOI Act. In Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 (30 September 1999) the Tribunal stated at [14] that:

. . . [I]n my opinion, the use of "may" in s 25(1) means that there is no mandatory duty to refuse access whenever one of the grounds for refusal is capable of being satisfied. In relation to paragraph (a), this means that a discretion is given whether or not to release a document which is found to be an exempt document.

104 The Tribunal in Mangoplah went on to find that since the administrator has a discretion to release an exempt document, the Tribunal has the same discretion. In this case, I am satisfied that if such a discretion exists, it should not be exercised in a way which would lead to the disclosure of any of the documents which I have found to be exempt. Public policy considerations have already been taken into account in coming to a view as to whether the documents should be released. There were no other factors before the Tribunal, nor any which came to mind, which would suggest that the documents found to be exempt should nevertheless be disclosed.