Mary-Lou Buck, Mary Button, Cecilia Flanders, Colleen Campbell, Eddy Neumann and Dunghutti Elders Council (Aboriginal Corporation) RNTBC and Registrar of Indigenous Corporations - [2012] AATA 354

[2012] AATA 354

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/3561
Re	Mary-Lou Buck, Mary Button, Cecilia Flanders, Colleen Campbell, Eddy Neumann and Dunghutti Elders Council (Aboriginal Corporation) RNTBC
APPLICANT
And	Registrar of Indigenous Corporations
RESPONDENT

DECISION

Tribunal	Deputy President R P Handley Senior Member J F Toohey
Date	14 June 2012
Place	Sydney

Decision Summary

The decision under review is set aside and a decision substituted that the Examiner’s Report dated October 2008 is an exempt document pursuant to s 41 and s 43 of the Freedom of Information Act 1982 (Cth).

...........[sgd].................................

Deputy President R P Handley

CATCHWORDS

FREEDOM OF INFORMATION – examiner’s report – access to documents – exempt document – procedural fairness – privacy – meaning of ‘unreasonable’

LEGISLATION

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)

Freedom of Information Act 1982 (Cth)

Freedom of Information Amendment (Reform) Act 2010 (Cth)

CASES

Colakovski v Australian Telecommunications Corp (1991) 29 FCR 429

Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2010) 195 FCR 318

Lobo and Department of Immigration and Citizenship (2011) 124 ALD 238

Marshall and Department of Defence and Heath (Joined Party) [2011] AATA 566

Searle Australia v Public Interest Advocacy Centre and another (1992) 36 FCR 111

SECONDARY MATERIALS

Explanatory Memorandum, Supplementary Explanatory Memorandum, and Second Reading Speech, for the Corporations (Aboriginal and Torres Strait Islander) Bill 2005

REASONS FOR DECISION

Deputy President R P Handley
Senior Member J F Toohey

The Applicants have applied to the Tribunal for review of a decision of the Registrar of Indigenous Corporations (the Registrar) to release a redacted copy of a Report by Mr Lindsay Roberts, dated October 2008 (the Examiner’s Report), into the examination of the books and records of the Dunghutti Elders Council (Aboriginal Corporation) RNTBC (the Corporation) to Blake Dawson. Blake Dawson were acting for clients who had sought access to the Examiner’s Report under the Freedom of Information Act 1982 (the FOI Act). The Applicants are seeking to prevent access to the Examiner’s Report.

BACKGROUND

By letter dated 28 April 2009, Blake Dawson applied to the Office of the Registrar of Indigenous Corporations (ORIC) on behalf of its clients for access to a number of documents, including the Examiner’s Report, pursuant to s 15 of the FOI Act.
ORIC identified information in the Examiner’s Report concerning a person’s business or professional affairs, or the business, commercial or financial affairs of an organisation or undertaking (s 27 of the FOI Act), or containing personal information about a person (s 27A of the FOI Act). Between 5 and 7 February 2011, ORIC wrote to the relevant persons or organisations to provide them with a reasonable opportunity to make submissions as to whether the Examiner’s Report was an exempt document pursuant to s 41 (documents affecting personal privacy) or s 43 (documents relating to business affairs) of the FOI Act.
By letter dated 22 February 2011, Eddy Neumann Lawyers responded on behalf of the Applicants in the present proceedings contending that the Examiner’s Report was an exempt document under s 36 (internal working documents), s 40 (documents concerning certain operations of agencies), s 41 and s 43 of the FOI Act. They also contended that the information contained in the Report was sensitive, obtained pursuant to the exercise of ORIC’s powers under s 453-1 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (the CATSI Act), and that the Report was an exempt document pursuant to s 421-1(1)(d) of that Act which may not be inspected by the public. They submitted that it was not possible for ORIC to make a copy of the document with such deletions that it would not be an exempt document (s 22(1)(b) of the FOI Act).
After litigation in the Federal and High Courts, on 2 September 2011, the Corporation, an Aboriginal and Torres Strait Islander corporation registered under the CATSI Act, was placed under special administration by the Registrar.
On 24 June 2011, an officer of ORIC, having considered Eddy Neumann Lawyers’ submissions, decided to release the Examiner’s Report subject to the redaction of certain information. The reasons for the redactions were that the release of information in the un-redacted Report would involve either the unreasonable disclosure of personal information about a named person, or the release of information that would unreasonably affect the business affairs of a named person. However, release of the redacted Report was withheld pending any application for a review of the officer’s decision by third parties.
By letter dated 22 July 2011, Eddy Neumann Lawyers sought an internal review of the decision. On 2 August 2011, a different officer of ORIC decided to affirm the decision subject to the redaction of two further names to protect personal privacy. On 31 August 2011, the Applicants lodged an application for review of this decision by the Tribunal.

THE RELEVANT LEGISLATION AND ISSUE

Because the request for access to the Examiner’s Report was made before amendments to the FOI Act by the Freedom of Information Amendment (Reform) Act 2010 took effect on 1 May 2011, the relevant exemptions in effect prior to the amendments taking effect are applicable in this case. The Applicants now contend that the Examiner’s Report is an exempt document pursuant to s 41 and s 43 of the FOI Act. These sections state relevantly:
41 Documents affecting personal privacy
(1)       A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2)       Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
…
43 Documents relating to business affairs etc.
(1)       A document is an exempt document if its disclosure under this Act would disclose:
…
(c)       information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:
(i)         the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or
(ii)        ...
…
Section 22 of the FOI Act provides for documents to be released with redactions.
22 Deletion of exempt matter or irrelevant material
(1)       Where:
(a)       an agency or Minister decides:
(i)         not to grant a request for access to a document on the ground that it is an exempt document; or
(ii)        that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b)       it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i)        would not be an exempt document; and
(ii)       would not disclose such information; and
(c)       it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
Section 453-1(1) of the CATSI Act empowers the Registrar to appoint an examiner in respect of an Aboriginal and Torres Strait Islander corporation. The subsection states:
(1) The Registrar may, at any time, cause an authorised officer to examine the books of an Aboriginal and Torres Strait Islander corporation, or a related body corporate, and to report to the Registrar on the results of that examination, drawing attention to any or all of the following matters:
(a) if the corporation has failed to comply with a provision of this Act or the corporation's constitution;
(b) an alleged or suspected contravention of a law of the Commonwealth, or of a State or Territory, being a contravention that concerns the management or examinable affairs of an Aboriginal and Torres Strait Islander corporation or a related body corporate, or involves fraud or dishonesty and relates to an Aboriginal and Torres Strait Islander corporation or a related body corporate;
(c) if there has been an irregularity in the operations or examinable affairs of the corporation;
(d) if circumstances exist that constitute, or may constitute, grounds for appointing a special administrator for the corporation;
(e) if circumstances are likely to occur or develop and that, if they were to occur or develop, may constitute grounds for appointing a special administrator for the corporation.
Section 450-1 describes the purposes for which powers under Part 10-3 of the CATSI Act, including the examination power under s 453-1, can be used.
A power conferred by this Part may only be exercised:
(a) for the purposes of the performance or exercise of any of the Registrar's functions and powers under this Act; or
(b) for the purpose of ensuring compliance with this Act; or
(c) in relation to:
(i) an alleged or suspected contravention of this Act; or
(ii) an alleged or suspected contravention of a law of the Commonwealth, or of a State or Territory, being a contravention that concerns the management or examinable affairs of an Aboriginal and Torres Strait Islander corporation or a related body corporate; or
(iii) an alleged or suspected contravention of a law of the Commonwealth, or of a State or Territory, being a contravention that involves fraud or dishonesty and relates to an Aboriginal and Torres Strait Islander corporation or a related body corporate.
Section 421-1 provides for the inspection and production of documents lodged with the Registrar, subject to an exception in respect of ‘exempt documents’. The section states relevantly:
(1) Subject to subsection (1A), a person:
(a) may inspect any document lodged with the Registrar except an exempt document (see subsection (4)); and
(b) …
(c) may require a copy of, or extract from, any document that the person is permitted to inspect under paragraph (a).
Subsection (1A) is not relevant here. Subsection (4) states relevantly:
(4) In subsection (1):
exempt document means:
…
(d) a report by an examiner under section 453-1 into an Aboriginal and Torres Strait Islander corporation, if the corporation has not agreed to allow the inspection of the report; …
The parties agree that the Examiner’s Report is an ‘exempt document’ pursuant to s 421-1 of the CATSI Act. The question for the Tribunal is whether it is also an exempt document for the purposes of the FOI Act. .

DISCUSSION

Mr Cullen, for the Registrar, said this is the first time the issue of the release of an Examiner’s Report has been considered by the Tribunal and the Registrar is not wedded to any particular outcome.
Mr Cullen contended that much of the Examiner’s Report is factual and comprises information supplied by the Applicants to the examiner. This was contested by Mr McCarthy, who said the review officer’s statement that “the information stated in the report was supplied for the most part by your clients and is of a factual nature” is inaccurate. Mr McCarthy contended that the Report contains opinions, conclusions and recommendations by the examiner relating to the personal and business undertakings of the Applicants. He said these opinions, conclusions and recommendations have never been tested. Moreover, the information provided by the Applicants was provided under compulsion (s 453-1(4) of the CATSI Act). Failure to comply with a requirement to produce the books of an Aboriginal and Torres Strait Islander corporation or a related body corporate is an offence (s 453-1(5)).
Having reviewed the Examiner’s Report, the Tribunal agrees that the Report contains findings and recommendations, and notes that the Applicants provided information under compulsion.
Mr McCarthy said that in preparing the Examiner’s Report, Mr Roberts denied the Applicants procedural fairness: he did not provide them with an opportunity to make submissions on his proposed findings, conclusions and recommendations. In the same way, the Registrar also denied the Applicants procedural fairness by acting on the Examiner’s Report and appointing a special administrator for the Corporation without affording the Applicants an opportunity to be heard.
Mr Cullen responded that there is no obligation on an examiner in making a report, or on the Registrar on receipt of an examiner’s report, to afford procedural fairness to those involved. The Full Federal Court in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2010) 195 FCR 318 (Dunghutti), at [38], said “the appellant’s invitation to introduce a level of process and procedural entitlements as precursors to the commencement of the show cause process finds no foothold in the CATSI Act”. The Court noted, at [77], that it is the show cause procedure which the Registrar must follow pursuant to s 487-10 of the CATSI Act before a special administrator can be appointed which affords those affected an opportunity to be heard.
In the Tribunal’s view, while the examiner was not required to provide the Applicants with an opportunity to make submissions in relation to his proposed findings, the fact that the Applicants did not have such an opportunity is, nevertheless, a relevant consideration in deciding whether the Examiner’s Report should be an exempt document in the context of the exemptions in the FOI Act. As Mr McCarthy noted, Parliament, in passing the CATSI Act, decided that an examiner’s report such as the Examiner’s Report should not be made available to the public. As noted above, an examiner’s report is an ‘exempt document’ for the purposes of s 421-1 of the CATSI Act and thereby excluded from s 421-1(1) which allows for the inspection and production of documents lodged with the Registrar.
There is no specific reference to the reasons for an examiner’s report being an exempt document in the Explanatory Memorandum and the Supplementary Explanatory Memorandum for the Corporations (Aboriginal and Torres Strait Islander) Bill 2005 or in the Second Reading Speech. There is, however, reference to the need to protect certain personal information from disclosure where that information has been provided to the Registrar pursuant to reporting obligations. This does not explain why an examiner’s report is an exempt document but does suggest that the need to protect personal information was recognised as a legitimate concern. In our view, it is reasonable to assume that one of the reasons for exempting an examiner’s report from inspection and production is that at this stage of the process, persons affected by the examiner’s findings may not have had an opportunity to make submissions. Such procedural fairness is afforded at a later stage by s 487-10 of the CATSI Act as the Federal Court recognised in Dunghutti.
Mr Cullen noted that in Dunghutti, at pages 27 to 28, the Court included two short extracts from the Examiner’s Report including a number of findings. Thus, he said, some of the information in the Report has already been made public. He also noted that it is a matter of public record that four of the Applicants were directors of the Corporation and one of the Applicants acted as the Corporation’s solicitor. A report must be published by the Registrar every year which includes the names of the Corporation’s directors and members and this information is accessible from the ORIC website.
In his decision dated 24 June 2011, the original decision-maker decided to release the Examiner’s Report subject to redacting certain information which would involve the unreasonable disclosure of information about named persons and redacting other information which would unreasonably affect the business affairs of named persons. Mr McCarthy noted that, in her decision dated 2 August 2011, the internal review officer redacted a further two names from the Examiner’s Report on the basis of the personal privacy exemption (s 41) but found that otherwise “there is no personal information remaining that [sic] would be unreasonable to disclose”. The review officer noted that the Applicants had been given the opportunity and sufficient time to make comments when consulted by the original decision maker in February 2011. Mr McCarthy observed that s 22 of the FOI Act does not, of course, permit the revision of the Report itself.
Mr McCarthy also noted inconsistencies in the redactions made by the decision-makers. While the names of directors have been redacted in some places, in others they have not. Moreover, even if names and addresses are redacted, a person would be able to identify the directors from other sources such as the register of such persons maintained by the Registrar under the CATSI Act and accessible from ORIC’s website. Mr McCarthy submitted that the difficulty of making appropriate redactions points to the inappropriateness of such an exercise and the need to treat the whole document as exempt.
Mr Cullen was unable to explain why, in the redacted Report, the names of directors had been redacted in some places but not in others. However, he said that the controversy surrounding the Corporation is well-known and has involved extensive litigation in the Tribunal, the Federal Court and the High Court. He submitted that the release of the Report would increase transparency concerning the Corporation’s affairs and be an aid to improving its future management.
With regard to the claimed business affairs exemption (s 43), the review officer said:
I accept that the examination report, with redactions, contains information concerning the business, commercial or financial affairs of your clients [the Applicants]. However it is my opinion that any adverse effect the release of that information may have cannot reasonably be expected to be unreasonable.
Mr McCarthy submitted that the Examiner’s Report contains adverse findings about the Applicants. Release of the document even in its redacted form would have a serious adverse effect on the Applicants in their community, for example, on their standing and reputation. This would be a reasonable consequence of the release of the document. By way of an example of an adverse finding, Mr McCarthy pointed to a conclusion stated by Mr Roberts on p 7 of the Examiner’s Report concerning the management of the Corporation.
Both parties referred to the Tribunal decision in Marshall and Department of Defence and Heath (Joined Party) [2011] AATA 566 (Marshall), and to the Full Federal Court decision in Searle Australia v Public Interest Advocacy Centre and another (1992) 36 FCR 111 (Searle). Mr McCarthy submitted that a cautious approach should be adopted by the Tribunal in deciding whether to release information, an approach which he said was adopted by the Tribunal in Marshall. In that decision, at [33], the Tribunal stated its view that:
… the disclosure of personal information that has not been properly tested … and that is likely to be prejudicial, may well be unreasonable.
Mr McCarthy submitted that, in the current matter, disclosure of the Examiner’s Report would be unreasonable on the same basis and it should therefore be treated as an exempt document.

With regard to what is ‘unreasonable’, in Searle, at 125, the Court said:
However, the word "unreasonably" should be given its ordinary meaning. Section 43(1)(c)(i) poses the issue whether disclosure of the information would unreasonably affect a person adversely. The issue is not whether "the effect is of substance rather than incidental or trivial", as stated by the Tribunal in par 67.
If it be in the public interest that certain information be disclosed, that would be a factor to be taken into account in deciding whether a person would be unreasonably affected by the disclosure; the effect, though great, may be reasonable under the circumstances. To give two examples: if the relevant information showed that a business practice or product posed a threat to public safety or involved serious criminality, a judgment might be made that it was not unreasonable to inflict that result though the effect on the person concerned would be serious. Of course, the extent and nature of the effect will always be relevant, often decisive. Whether the effect of the disclosure is unreasonable cannot be assessed without taking into account all relevant factors: see Colakovski v Australian Telecommunications Corp (1991) 29 FCR 429 at 438, 441. (Original emphasis.)
The parties noted that the decision in Marshall was referred to with approval in in the Tribunal’s decision in Lobo and Department of Immigration and Citizenship (2011) 124 ALD 238 (Lobo). In that decision, the Tribunal said:
315. The right of access to documents is not given pre-eminence over the exemptions and exceptions to it so that the right of access is construed liberally and the exception and exemptions narrowly. The right of access is subject to the exceptions and exemptions necessary for the protection of the public, personal and private interests identified in the FOI Act and delineated in Pts III and IV.
316. Had Parliament given the right of access a pre-eminence of some sort, the correlative duty imposed on the minister or agency would have mirrored that right. As it is, the duty mirrors a right that is qualified. It follows that the exceptions and exemptions to the right of access should not, as a matter of principle, be construed narrowly and the right of access more liberally. Each must be given its meaning according to its terms and the context in which it appears and not artificially narrowed or extended.
Mr McCarthy submitted that this statement of the way in which the law operates in this context makes clear that the internal review officer in the present case made an error of law when she said in her decision of 2 August 2011 that “the overarching aim of the FOI Act is to provide access to government information holdings”. The right of access to documents under the FOI Act is to documents that are not exempt documents.
In our view, the approach described by the Tribunal in Lobo is the correct one. The right of access to documents provided by the FOI Act is subject to certain exceptions and exemptions which must be construed in accordance with their ordinary meaning in the context of the Act. That context includes, in particular, the object of the Act stated in s 3 which, while recognising a right of public access to documents, also recognises “exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities” (s 3(1)(b)).

CONCLUSION

In this matter, the Tribunal is satisfied that the Examiner’s Report is an exempt document pursuant to s 41 and s 43 of the FOI Act. We have reached this conclusion for the reasons that now follow. The Examiner’s Report is an exempt document under the CATSI Act. As stated above, we think it reasonable to assume that one of the reasons for exempting an examiner’s report from inspection and production under that Act is that at the examination stage, persons affected by the examiner’s findings may not have had an opportunity to make submissions. In our view, this is a relevant consideration in determining whether a document is exempt under the FOI Act given that an examiner’s report may include untested findings that reflect on a person’s personal or business affairs.
As the review officers recognised in making redactions in the present case, the Examiner’s Report does disclose personal and business information about the Applicants. The review officers sought to redact some of that information but, in our view, as Mr Cullen recognised, there are inconsistencies in those redactions. In any event, as Mr McCarthy pointed out, even if the names and addresses of the Applicants were deleted from the Report, public access to information maintained by the Registrar, accessible via the ORIC website, would enable those who wished to do so to work out the names of the directors who were the subject of adverse findings in the Examiner’s Report. In our view, this is not a matter where deletions can be made to the Examiner’s Report so that the redacted copy would not be an exempt document (s 22(1)(b) of the FOI Act).
The fact that a small portion of the Examiner’s Report was included in the Federal Court’s decision in Dunghutti or that the affairs of the Corporation have been the subject of extensive litigation, does not change our view. The Report contains findings that are untested and for the reasons discussed in Marshall, we are satisfied that the disclosure of the Report would be ‘unreasonable’, according to the ordinary meaning of that word, in terms of the likely adverse effect of the disclosure on the Applicants’ reputations and standings in the community. We do not consider that there is any significant public interest in the disclosure of the Report given that the preparation of such a report at the request of the Registrar is a step in the investigation of a corporation’s affairs. Given the untested nature of the findings contained in the Examiner’s Report, those findings should be treated with caution. The appropriate course is that set out in the CATSI Act involving the Registrar issuing a show cause notice before, ultimately, determining that the corporation is to be placed under special administration.

DECISION

The decision under review is set aside and a decision substituted that the Examiner’s Report dated October 2008 is an exempt document pursuant to s 41 and s 43 of the FOI Act.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President R P Handley and Senior Member J F Toohey.

........[sgd]................................................................

Associate

Dated 14 June 2012

Date of hearing	28 May 2012
Date final submissions received	28 May 2012
Counsel for the Applicant	J McCarthy QC and J Kildea
Solicitors for the Applicant	Eddy Neumann Lawyers
Counsel for the Respondent	M Cullen