Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia
[2007] WASC 196
•28 AUGUST 2007
LEIGHTON CONTRACTORS PTY LTD -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [2007] WASC 196
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 196 | |
| Case No: | CIV:1570/2006 | 2 & 3 JULY 2007 | |
| Coram: | LE MIERE J | 28/08/07 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | LEIGHTON CONTRACTORS PTY LTD (ABN 98 000 893 667) PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA AUSTRALIAN BUREAU OF STATISTICS |
Catchwords: | Civil practice and procedure Discovery and inspection Objection to inspection on grounds of public interest immunity Whether documents sought are relevant to proceedings Whether public interest in non-disclosure outweighs public interest in disclosure Turns on own facts |
Legislation: | Australian Bureau of Statistics Act 1975 (Cth), s 5 Census and Statistics Act 1905 (Cth) |
Case References: | Alister v The Queen (1984) 154 CLR 404 Director of Public Prosecutions v Smith (1996) 86 A Crim R 308 Jackson v Wells (1985) 5 FCR 296 National Crime Authority v Gould (1989) 23 FCR 191 R v Fandakis [2002] NSWCCA 5 R v Francis (2004) 145 A Crim R 233 R v Khazaal [2006] NSWSC 1061 R v Lodhi [2006] NSWSC 596 Traljesic v Attorney-General of the Commonwealth of Australia [2006] FCA 125 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA
Defendant
Catchwords:
Civil practice and procedure - Discovery and inspection - Objection to inspection on grounds of public interest immunity - Whether documents sought are relevant to proceedings - Whether public interest in non-disclosure outweighs public interest in disclosure - Turns on own facts
Legislation:
Australian Bureau of Statistics Act 1975 (Cth), s 5
Census and Statistics Act 1905 (Cth)
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr C G Colvin SC
Defendant : Mr J A Thomson
Non Party
Australian Bureau of Statistics : Mr T Howe QC & Mr A J Power
Solicitors:
Plaintiff : Mallesons Stephen Jaques
Defendant : State Solicitor's Office
Non Party
Australian Bureau of Statistics : Australian Government Solicitor
Case(s) referred to in judgment(s):
Alister v The Queen (1984) 154 CLR 404
Burmah Oil Co Ltd v Governor & Co of the Bank of England [1980] AC 1090
Commonwealth v Northern Land Council (1993) 176 CLR 604
Director of Public Prosecutions v Smith (1996) 86 A Crim R 308
Jackson v Wells (1985) 5 FCR 296
Jacobsen v Rogers (1995) 182 CLR 572
National Crime Authority v Gould (1989) 23 FCR 191
R v Fandakis [2002] NSWCCA 5
R v Francis (2004) 145 A Crim R 233
R v Khazaal [2006] NSWSC 1061
R v Lodhi [2006] NSWSC 596
Traljesic v Attorney-General (Cth) [2006] FCA 125
(Page 3)
1 LE MIERE J: The plaintiff applies for an order that the Australian Bureau of Statistics (ABS) allow the plaintiff to inspect certain documents discovered by the ABS and which the ABS has objected to producing on the grounds of public interest immunity (PII).
The action
2 The plaintiff is the contractor for construction of the Perth component of a railway extension between Perth and Mandurah. The contract is contained in a project deed entered into on 14 February 2004 (the Project Deed). The Project Deed provides for adjustments to the progress payments to the plaintiff by a rise and fall mechanism calculated in accordance with Annexure G of the Project Deed. The rise and fall calculation depends upon the application of certain indexes. One such index produced by the ABS is the Table 42 index entitled 'Price Index of Materials used in Building other than House Building, excluding electrical materials and mechanic services'. Annexure G to the Project Deed provides that if an index is discontinued there must be substituted the nearest index consistent with the intention of Annexure G so as to give effect to Annexure G.
3 The ABS ceased producing and publishing the Table 42 index on 30 June 2004. The defendant and Main Roads requested the ABS to reinstate the discontinued Table 42 index and subsequently to create a replacement index. In October 2005 the ABS made available an index (the Table 48 index) with the same title as the discontinued Table 42 index. The plaintiff pleads that the Table 48 index was created by ABS at the request of the defendant, using a methodology developed and agreed between ABS and the defendant. There is evidence to support that contention.
4 The, or a, principal issue between the parties is whether or not the Table 48 index is the nearest index consistent with the intention of Annexure G to the Project Deed.
Non party discovery by ABS
5 On 22 February 2007, on the application of the plaintiff, I made orders for non-party discovery against ABS. On 22 March 2007 ABS filed and served a list of documents verified by an affidavit sworn by Geoffrey Mark Neideck. ABS claimed PII for nine classes of documents numbered 1 to 9 in Schedule 1, Pt 2 to its list of documents.
(Page 4)
The ABS
6 The office of Australian Statistician is created by the Australian Bureau of Statistics Act 1975 (Cth) (ABS Act). Section 5 of the ABS Act establishes the Australian Bureau of Statistics under the control of the Australian Statistician. The statutory functions of the ABS include to collect, compile, analyse and disseminate statistics and related information. The proper respondent to this application is the Australian Statistician. However, I will follow the lead of the parties and refer to the respondent as the ABS.
7 The current Australian Statistician is Brian Pink. Mr Pink has affirmed an affidavit in support of the claim for PII. Mr Pink deposes that disclosure of the documents the subject of the PII claim could lead to an overall reduction in the quality of the statistics produced by the ABS and could expose the indexes to which the relevant documents relate to manipulation, and would not be in the public interest.
The application to inspect
8 By chamber summons dated 30 May 2007 the plaintiff seeks orders that the ABS allow the plaintiff to inspect the documents numbered 1 to 9 in pt 2 of sch 1 of the affidavit of discovery of Geoffrey Mark Neideck sworn on 21 March 2007 falling into the following categories:
(a) All documents regarding Table 48, including but not limited to all documents regarding the design description;
(b) All elementary aggregate price data for items measuring steel prices over the period 1996 to June 2007 for the following indexes:
(i) Index 4113 WA;
(ii) Index 4113 National;
(iii) Table 42; and
(iv) Table 17.
(c) All price movements at the component level over the period 1996 to June 2007 for the following indexes:
(i) Index 4113 WA;
(ii) Index 4113 national;
(iii) Table 42; and
(Page 5)
- (iv) Table 17.
(d) All documents containing descriptions of the specific products priced for Tables 17, 42 and 48.
9 In its written submissions dated 29 June 2007 the plaintiff says the documents it seeks to inspect are relevant for the following reasons. The defendant claims that the Table 48 index should be substituted for the Table 42 index because it is the nearest index consistent with the intention of Annexure G. Table 48 has been published at the request of the defendant and is paid for by the defendant. Table 48 is prepared using data collected for Table 17 (a house building index) and some nine 'special collection items'. Special collection data for the period from June 2004 to September 2005 was retrospectively collected. It continued to be collected thereafter. The defendant has filed witness statements of ABS officers, including Mr Berger and Mr Whennan, concerning the preparation and character of Table 48 and its relationship to Table 42. Those statements seek to establish that Table 48 is, in effect, a continuation of Table 42. The defendant seeks to lead evidence from ABS officers to the effect that the weighting, methodology and data collection for Table 48, though different from Table 42, produced the same measure of indexation. However, the ABS now resists the production of the material that enables independent analysis of the process used to produce Table 48. The plaintiff seeks to test the evidence of the ABS witnesses but can only do so by having access to the documents concerning Tables 42, 48 and 17. Otherwise, the plaintiff is faced with evidence in the form of assurances from ABS officers 'without being able to look into the black box of the actual work done and methodology applied to produce Table 48'. The plaintiff says that there is evidence that suggests that there may be problems with the claim that Table 48 is an extension of Table 42. The plaintiff submits that the material sought from ABS was significant material that goes to issues at the heart of the dispute between the parties.
10 In its written submissions the plaintiff recast the list of documents that it seeks to inspect. In the course of the hearing the plaintiff further refined the list of documents it seeks to inspect. The documents the plaintiff seeks to inspect are set out in a minute of proposed orders dated 2 July 2007 that was further amended in the course of the hearing. The plaintiff now seeks an order that the ABS allow it to inspect the following documents from the categories of documents numbered 1 to 9 in pt 2 of sch 1 of the affidavit of discovery of Geoffrey Mark Neideck sworn 21 March 2007:
(Page 6)
- (a) sufficient documents to show the data at the elementary level for each of the 9 special collection items for Table 48;
(b) all documents recording part or all of the procedures followed in undertaking the retrospective collection of data for the 9 special collection items;
(c) sufficient documents to show the number of respondents providing the data used for each of the items for Table 42 that correspond with the 9 special collection items for Table 48;
(d) sufficient documents to show the weighting applied for each item relating to the steel and metal products for Table 17 Perth;
(e) sufficient documents to show the components and their elementary aggregates and their percentage movements for each item relating to steel and metal products in Tables 17, 42 and 48 for the period 2000 to date;
(f) sufficient documents to show the components and their percentage movements (also referred to as elementary aggregates) for each of the items that correspond to the 9 special collection items in Table 42 for the period 2000 to June 2004;
(g) sufficient documents to show the components and their percentage movements (also referred to as elementary aggregates) for the 9 special collection items in Table 48 for the period September 2004 to date;
(h) all documents containing a description of the types of steel products for which the data for each component item relating to the steel product group has been collected for each of Tables 17, 42 and 48 for the period 2000 to date;
(i) all documents recording part or all of the methodology used to convert the weightings for Table 42 to weightings that apply to Table 48; and
(j) sufficient documents to show the percentage movements in Table 4113 WA for the period 2000 to date,
provided that
(l) all such documents may be redacted to exclude the names, addresses and other similar identifying information for individual respondents; and
(m) where 'sufficient documents' are required to be produced then the ABS shall only be obliged to produce such documents if they exist and if the information is contained in more than one document then
- ABS may elect which of those documents shall be produced in order to disclose the information sought.
Evidence of ABS
11 In opposition to the plaintiff's application the ABS relies upon the evidence contained in an affidavit affirmed by Peter Harper on 13 June 2007. Mr Harper is a Deputy Australian Statistician at the ABS and is the head of the Economics Statistics Group. The Economics Statistics Group is responsible for producing price indexes (including producer price indexes such as the Table 42 and Table 48 indexes), macro-economic statistics (such as national accounts and the balance of payments), statistics on various aspects of the Australian economy such as agriculture, transport, technology and statistics on the environment.
12 In his affidavit Mr Harper refers to the documents over which the ABS has made a claim for immunity from production on the grounds of public interest in its list of documents dated 21 March 2007. Mr Harper then refers to the documents which the plaintiff seeks to inspect, as described in the plaintiff's chamber summons. Mr Harper says that documents to which the plaintiff seeks access and that are within category (a) of its application fall within each of the categories of documents over which the ABS claims PII in its list of documents. Mr Harper then refers to the other categories of documents in the plaintiff's chamber summons and identifies which categories of documents in the ABS' PII claim they relate to. All of the documents which the plaintiff seeks to inspect fall with the ABS' PII claim. Mr Harper affirms that he has read and considered a representative sample of documents falling within each of the categories listed in the plaintiff's chamber summons but says that he has not read and considered all of the subject documents because compiling and reading them would be an enormous task which would require expenditure of something in the order of 10,000 person hours. Later in his affidavit Mr Harper explains that providing the documents for inspection would require the ABS to consider in the order of 200,000 documents that may hold confidential information.
13 Mr Harper affirms that in his opinion any release of the documents which the plaintiff seeks to inspect is contrary to the public interest for two broad reasons:
1. Information provided by businesses and individuals from whom the ABS collects prices and other data (respondents) is confidential and is provided on that basis. Documents falling within the categories of documents the plaintiff seeks to inspect
- identify businesses, prices and other information which is at a sufficient level of detail to enable the identification of respondents and/or prices collected on a confidential basis. Disclosure of these documents is likely to lead to a reduction in quality of the data collected by the ABS, increase the costs of the ABS and ultimately threaten the quality of the statistics produced by the ABS.
- 2. Documents falling within each of the categories of documents in respect of which the ABS claims PII contain information that may expose the ABS indexes to manipulation. The potential adverse consequences of the very existence of a risk of manipulation and/or actual manipulation are very grave.
14 Mr Harper affirms that the Treasury, the Reserve Bank of Australia and other Australian government departments and agencies, and State and Territory treasuries and agencies, use and rely on producer price indexes when formulating economic policy and, in the case of the Reserve Bank, setting interest rates. Mr Harper says that
the ABS indexes are each important indicators in their own right. In addition, these price index data are frequently re-used to produce broader measures of price change. For example, Table 4113 is a key contributor to the Stage of Production (SOP) Producer Price Indexes. The SOP Producer Price Indexes are a suite of whole-economy price indexes, allowing for analysis of price change as commodities flow through the production process.
15 In his affidavit Mr Harper explains how disclosure of the documents sought by the plaintiff is likely, directly or indirectly, to disclose the identity of respondents and lead to a reduction in the quality of data collected by the ABS, increase the costs of the ABS and ultimately threaten the quality of the statistics produced by the ABS.
16 In [102] - [126] Mr Harper demonstrates how the inspection of the documents sought by the plaintiff might disclose information that may expose the ABS indexes to manipulation. In [118] - [122] of his affidavit Mr Harper gives an example using actual data collected under the Census and Statistics Act 1905 (Cth) of how disclosure of the data contained in the documents the subject of the PII claim could be used to manipulate the ABS indexes. Counsel for the ABS claimed that those paragraphs of Mr Harper's affidavit are themselves subject to a PII claim. At the hearing of the application I reserved the question of whether I would read those paragraphs of Mr Harper's affidavit.
(Page 9)
Harper's closed affidavit
17 At this point, I should refer to the two affidavits affirmed by Mr Harper on 13 June 2007. The affidavit that contains [118] - [122] was referred to by senior counsel for the ABS, Mr Howe QC, as the closed affidavit. That affidavit was supplied to the Court in confidence and has not been provided to the plaintiff. The plaintiff has been provided with what Mr Howe described as the open affidavit of Mr Harper affirmed on 13 June 2007. In the open affidavit [118] - [122] are blacked out so that they cannot be read. Mr Howe QC submitted that the Court should read the confidential paragraphs of the closed affidavit without disclosing them to the plaintiff because those paragraphs attract public interest immunity. Senior counsel for the plaintiff, Mr Colvin SC objected to the Court receiving the closed affidavit without it being disclosed to the plaintiff. At the hearing of the application I received the closed affidavit in a sealed envelope on the basis that I would subsequently consider whether or not to read [118] - [122] of the closed affidavit and if so whether the material should be disclosed to the plaintiff.
18 Mr Howe QC submitted that the Court should consider the confidential material in the closed affidavit that has not been disclosed to the plaintiff and then in the course of determining the plaintiff's application determine whether or not the confidential material in the closed affidavit should be disclosed to the plaintiff. Mr Howe cited as authority for his proposition Alister v The Queen (1984) 154 CLR 404; Traljesic v Attorney-General (Cth) [2006] FCA 125; Director of Public Prosecutions v Smith (1996) 86 A Crim R 308 at 310; R v Francis (2004) 145 A Crim R 233 at [21]; R v Lodhi [2006] NSWSC 596; R v Khazaal [2006] NSWSC 1061; Jackson v Wells (1985) 5 FCR 296; National Crime Authority v Gould (1989) 23 FCR 191 at 198 and R v Fandakis [2002] NSWCCA 5. I accept that Mr Howe's proposition correctly reflects accepted practices according to the authorities.
19 The plaintiff challenged Mr Harper's beliefs or assertions that inspection of the documents sought by the plaintiff would have the consequences put forward by Mr Harper. I have determined that I should read the confidential paragraphs of the closed affidavit to assist in my consideration of Mr Harper's evidence that disclosure of the data contained in the documents the subject of the ABS PII claim could be used to manipulate the ABS indexes. I have read that material and caused the closed affidavit to be returned to a sealed envelope only to be opened by order of a Judge of this Court.
(Page 10)
Findings concerning Harper affidavit
20 Having considered the whole of Mr Harper's affidavit including the confidential paragraphs of the closed affidavit, I am satisfied that the claims made by Mr Harper in pars 6.1 and 6.2 of his affidavit are made out. I am not satisfied that the evidence advanced by the plaintiff or the arguments advanced by Mr Colvin QC demonstrates otherwise. That is, I find that documents falling within the categories of documents access to which is sought by the plaintiff identify businesses, prices and other information which is at a sufficient level of detail to enable the identification of respondents and/or prices collected on a confidential basis. Disclosure of the documents sought by the plaintiff is likely to lead to a reduction in the quality of the data collected by the ABS, increase the costs of the ABS and ultimately threaten the quality of the statistics produced by the ABS. Secondly, documents falling within the categories of documents access to which is sought by the plaintiff contain information that may expose the ABS indexes to manipulation and the potential adverse consequences of the very existence of a risk of manipulation and/or actual manipulation are very grave.
Affidavit of Parker
21 David John Parker is the Acting Secretary to the Treasury. His usual position is Executive Director, Macroeconomics Group in the Treasury. He affirmed an affidavit on 18 June 2007 in support of the claim for public interest immunity. Mr Parker affirmed that ABS statistics are integral to a significant amount of Treasury policy advice. The Treasury uses ABS data extensively to assist the Commonwealth to meet its policy objectives in relation to the macro-economic and micro-economic environment, government spending and taxation arrangements. The producer price index publication is a valuable source of data on price movements at different stages in the production chain and is used to inform Treasury's economic analysis of inflationary pressures in the economy. Less reliable and valid ABS statistics would undermine the ability of the Treasury to meet the government's policy objectives. Mr Parker states his opinion that if the ABS is not able to assure households and businesses of the confidential reality of their information this may result in response rates falling as a result of eroded public confidence in the ABS, timeliness of data provision being adversely affected, and survey data quality being impaired by the provision of false and misleading information. Mr Parker opines that those matters would lead to the quality of the statistics produced by the ABS being compromised and the flow on effects to Treasury and other government
(Page 11)
- departments of less reliable and valid ABS statistics would be significant. There was no effective challenge to that evidence.
Affidavit of Pearce
22 The Honourable Christopher Pearce MP is the Parliamentary Secretary to the Treasurer with the executive responsibility for the ABS. On 14 June 2007 Mr Pearce swore an affidavit that he had read and supports the ABS claim for public interest immunity as set out in the non-confidential affidavit of Mr Harper affirmed on 13 June 2007. Mr Pearce deposed that it is the government's view that it is of the utmost importance that the official statistics produced by the ABS are reliable as they form a vital basis for formulation of economic and social policy. Mr Pearce swore that it is in the best interests of the nation that the indexes produced by the ABS have a high level of integrity and they cannot be manipulated and that in his opinion it is not in the public interest to release documents which may identify respondents or expose the ABS indexes to manipulation. There was no challenge to Mr Pearce's evidence.
Legal principles
23 The legal principles relevant to this application are set out in the written submissions filed by the Australian Statistician on 19 June 2007. In its written submissions of 29 June 2007 the plaintiff expressly accepts the submissions made by the Australian Statistician as to the general principles to be applied in respect of this claim. The relevant legal principles set out by the Australian Statistician include the following:
Order 26 rule 14 of the Supreme Court Rules … applies to a PII claim … It is to the following effect:
(a) an ex facie proper PII claim may be traversed by evidence that the claim is unfounded or mistaken;
(b) absent such evidence, the PII claim shall be sustained.
Order 26 rule 14 does not mean that the mere fact of a claim is itself conclusive: it is the duty of the court to decide whether documents should be produced for inspection or withheld. In reaching that decision the court will have regard to (i) relevant legal principles, and (ii) the evidentiary onus cast upon the plaintiff by Order 26 rule 14.
…
The expression 'public interest immunity' (formerly 'Crown privilege') is a common law doctrine calling for the exercise of judicial discretion: a
(Page 12)
- court may exclude material relevant in the determination of an issue on the ground that its disclosure would be injurious to the public interest …
…
The Court is required to consider two conflicting aspects of the public interest:
(a) whether harm would be done by the production of the documents; and
(b) whether the administration of justice would be frustrated or impaired if the documents were withheld;
and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest require consideration ie when it appears, on the one hand, that damage would be done to the public interest by producing the documents and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury likely to be suffered by disclosure and the evidentiary value and importance of the documents in the particular litigation.
An objection to the production of a document may be on the ground that:
• it would be against public interest to disclose its contents; or
• the document belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of a particular document.
Here, the ABS' claim is based on both the class, and contents, of the subject documents.
When weighing the strength and persuasiveness of the material in the ABS' supporting affidavits, the Court should take into account the following factors:
a. the need to give due weight and proper respect to the deponents' reasons for claiming privilege;
b. the seniority and standing of the deponent;
c. the importance of the public interests sought to be protected by the claim;
d. whether those issues are wholly within the competence of a court to evaluate;
(Page 13)
- e. whether the call for production takes place in criminal or civil proceedings; and
f. the importance of the subject documents to the issues in the proceedings.
…
In Burmah Oil Co Ltd v Governor & Co of the Bank of England [1980] AC 1090 Lord Scarman stated:
'If a Minister of the Crown asserts that to disclose the contents of a document would, or might, do the nation or the public service a grave injury, the court will be slow to question his opinion or to allow any interest, even that of justice, to prevail over it (at 1143).'
…
Where documents clearly fall within a recognised class protected by PII, the court should not look at the documents unless it is persuaded that inspection would be likely to satisfy the court that production should be ordered: see Commonwealth v Northern Land Council(1993) 176 CLR 604at pages 617.4-6 and 619.3-7.
It is accepted that the mere fact that a document or information has been given to a person in confidence does not make it immune from production. However, confidentiality is a material consideration to be weighed by the court in balancing the competing aspects of the public interest …
24 The ABS' written submissions then make the following assertions or submissions that I accept:
The ABS' claim is not based upon preserving confidentiality for its own sake. Rather, preservation of confidentiality is necessary to secure important public interests.
Courts readily accept that confidentiality is necessary for proper decision-making and, thus, for the satisfactory working of responsible government and the public service. A government cannot function completely in the open; it must be able to preserve the confidential nature of its internal processes, especially at the highest levels of information-gathering and policy making where (as here):
• the information is of a kind which is necessary to enable its recipient to perform with maximum efficiency a public duty or function; and
• the information would not be so readily forthcoming if the informant could not be sure that the confidence would be absolutely respected.
(Page 14)
- The overriding consideration is the recipient's dependence upon the continuing availability of the information for the proper performance of his/its public duties or functions. As noted by Mason CJ, Deane, Dawson, Toohey and Gaudron JJ in Jacobsen v Rogers (1995) 182 CLR 572:
'Public interest immunity has a particular application in the case of information gleaned upon the basis of confidentiality … The principle does not appear to depend upon the encouragement of candour but rather upon the consideration that the public interest is best served by preserving the basis upon which the information was given. It may be necessary for the public functioning of the public service to withhold documents where failure to do so would impair confidence in its assurance (at pages 589-590 citing Sankey v Whitlam (1978) 142 CLR 1 at page 39).'
There is a public interest in securing the voluntary supply of information to statutory agencies even where there is a power under the statute which enables the agency to acquire the information compulsorily…
The fact that the legislature has not conferred an absolute statutory immunity from court processes (and inspection) is not a proper reason to defeat a claim …
Third party perceptions of non-adherence to an assurance of confidentiality are also very important and may warrant PII protection …
The fact that some sensitive information may have already been disclosed is not a good reason to reject a soundly based PII claim. (footnotes omitted)
Submissions by the plaintiff
25 The plaintiff submits that the documents which are the subject of its claim for inspection are relevant to matters in issue in the proceedings. I have already referred to the plaintiff's submissions to that effect. The plaintiff submits that the defendant seeks to lead evidence from officers of ABS to the effect that the weight, methodology and data collection for Table 48 though different from Table 42 produced the same measure of indexation. However, the plaintiff submits that, in refusing inspection of the documents the subject of this application, the ABS resists the production of the material that enables independent analysis of the process used to produce Table 48.
26 I do not accept that the plaintiff is unable to consider and assess the processes used to produce Table 48. The defendant and the ABS have already discovered documents relating to the production of Table 48. The plaintiff has referred to expert reports it has obtained in relation to the production of Table 48. I accept that experts retained by the plaintiff have
(Page 15)
- sought further information concerning the processes used to produce Table 48. However, as I have said, some material has already been provided to the plaintiff in relation to the process used to produce Table 48.
27 In the course of the trial the ABS officers who are called by the defendant to give evidence will be available for cross-examination. I accept that the plaintiff will be better placed forensically if it is able to obtain information in advance rather than in the course of cross-examination. However, it should not be overlooked that the ABS officers called by the defendant to give evidence will be available for cross-examination in relation to the process used to produce Table 48. If that cross-examination raises questions the answers to which might enable the identification of the respondents to the ABS surveys or which might disclose information that may expose the ABS indexes to manipulation then those matters will have to be dealt with at trial.
28 The plaintiff submits that the ABS has failed to recognise that there are various levels of information which are sought to be inspected by the plaintiff. The plaintiff submits that the ABS has made a general claim and has not differentiated between the risks that may be associated with the production of different documents. I do not accept that submission. Mr Harper has considered all of the documents in respect of which the ABS claims PII. Mr Harper has explained in his principal affidavit why and how disclosure of those documents contain information the disclosure of which would, or might, enable the identification of respondents and/or prices collected on a confidential basis. Mr Harper has explained and demonstrated that disclosure of documents sought by the plaintiff may expose the ABS indexes to manipulation.
29 The plaintiff submits that the ABS has already disclosed material similar to some of the material now sought by the plaintiff, or at least at the same level of detail.
30 Mr Harper concedes that the ABS has provided to the plaintiff documents which disclose the number of respondents for each of the nine special collection items in Table 48. The release of the number of respondents for each of the nine categories was inadvertent. The ABS has a stated policy of collecting prices from the largest suppliers in the industries from which it collects prices. Because of the low number of respondents in some of the categories and ABS' policy of collecting from the main suppliers, the ABS believes that there is a risk the respondents could be identified from the data released. The plaintiff has sought further
(Page 16)
- information. Mr Harper affirms that by inadvertently disclosing material below the regimen level the ABS fears it may have already provided enough information for the parties to indirectly identify some of the respondents. If the ABS were to provide the information sought it would provide further information which may assist in identifying respondents. I conclude that the information released by the ABS below the regimen level does not justify or support the disclosure of further material below the regimen level.
Assessment of public interest
31 The documents to which access is sought by the plaintiff, directly or indirectly, are relevant to matters in issue in these proceedings. They are at least potentially of use to the plaintiff in cross-examining ABS officers who are to be called to give evidence by the defendant. Furthermore, the documents contain, or are likely to disclose, information requested by experts retained by the plaintiff.
32 I find that harm would be done by the production of the documents sought by the plaintiff for the reasons given by Mr Harper in his affidavit of 18 June 2007. Disclosure of the documents may enable the identification of respondents and or prices collected on a confidential basis. This is likely to lead to a reduction in the quality of the data collected by the ABS, increase the costs of the ABS and ultimately threaten the quality of the statistics produced by the ABS. Furthermore, the disclosure of some of the documents may expose the ABS indexes to manipulation and the potential adverse consequences of the very existence of a risk of manipulation and or actual manipulation are serious harm to the economy and to government decision-making and policy development. I conclude that the public interest in avoiding serious damage to the economy and the proper working of government at the highest level must prevail over the interests of the plaintiff in obtaining access to the relevant documents. The public interest in the non-disclosure of the documents outweighs the public interest in their disclosure, that is the public interest in the proper administration of justice.
33 I find that inspection of the documents is not likely to demonstrate that production of the documents should be ordered and I decline to inspect the documents.
34 The plaintiff's application will be dismissed.
(Page 17)
Disclosure of the closed affidavit
35 There remains the issue concerning par 118 – 122 of Mr Harper's closed affidavit. The disclosure of that material demonstrates, using actual data collected under the Census and Statistics Act, how disclosure of the data contained in the documents the subject of the PII claim could be used to manipulate the ABS index. The public interest in the non-disclosure of the contents of those paragraphs outweighs the public interest in their disclosure, that is the public interest in the proper administration of justice. The disclosure of the contents of the relevant paragraphs of Mr Harper's affidavit is not necessary for the fair and proper disposition of the present application. The closed affidavit of Mr Harper should not be disclosed to the plaintiff.
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14
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