Milton v The City of Unley - [2008] SADC 116

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)
MILTON v THE CITY OF UNLEY
[2008] SADC 116
Judgment of Her Honour Judge Trenorden
26 September 2008
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS
Appeal under s 40 of the Freedom of Information Act 1991 - Appellant requested access to documents relating to deceased parent - Respondent determined certain documents exempt and others partially exempt - Whether appellant is personal representative of deceased parent - Whether closest relative - Whether giving access to documents in public interest - Whether Guardianship Board & Mental Health Review Tribunal are "tribunals" within meaning of Act - Whether documents exempt - Whether documents partially exempt.
Appeal upheld in respect of all documents, with two exceptions.
Freedom of Information Act 1991; District Court Act 1991; Guardianship and Administration Act 1993; Mental Health Act 1976; Mental Health Act 1993; Administration and Probate Act 1919, referred to.
Konieczka v South Australia Police [2006] SADC 134; Precision Data Holdings Ltd v Wills (1992) 173 CLR 167; Moore v Medical Board of SA [2001] SADC 106; Pietruzska v Guardianship Board SADC unreported - delivered 11 January 2001 by Lowrie DCJ, considered.

MILTON v THE CITY OF UNLEY
[2008] SADC 116
THE COURT DELIVERED THE FOLLOWING JUDGMENT:

The appellant, Mr John Milton, made a freedom of information application under the Freedom of Information Act 1991 (FOIAct) to the respondent, The City of Unley (Unley Council) on 10 August 2006. That application had requested access to documents concerning “Social Files Pertaining to Edna Margaret Miller from 1985-1990”. That request was refused. A letter dated 4 September 2006, from the accredited FOI officer for the Unley Council, advised Mr Milton that the FOI officer had determined that the documents sought were exempt documents, in reliance on Clause 6 of Schedule 1 to the FOI Act.
On 15 September 2006, Mr Milton applied for an internal review of the decision refusing him access to the social files pertaining to Edna Margaret Miller for the period concerned. The chief executive officer of the Unley Council responded to that application by letter dated 22 September 2006. That letter confirmed that Mr Milton had requested access to “all the social files pertaining to my mother Edna Margaret Miller. The period in question should approximate to the period 1985-1990”. The chief executive officer advised that he had undertaken an internal review and had confirmed the initial decision, made by the accredited FOI officer (advised in her letter dated 4 September 2006), that the documents were exempt from disclosure under Clause 6 of Schedule 1 of the FOI Act.
By letter dated 19 July 2007, Mr Milton made a further request to the Unley Council for “all records pertaining to my mother EDNA MARGARET MILLER and my person JOHN MILTON in accordance with the Freedom of Information Act 1991 or upon request that such information is required in order to present before the Courts an actionable claim Your FOI Ref No 122”. The letter further advised as follows:
…
This new request fully encompasses my original application dated 10 August, 2006 and that further advised on 15 September, 2006. The duration now requested extends the period under review to the time of 1980 – 1992 and the extent of the Council’s communication with my mother is now ‘total’; [but excludes rate notices and the like]!
…
That application received a response from the chief executive officer of the Unley Council in a letter dated 14 December 2007. The letter advised as follows:
…
… I am now aware that you intended your letter to constitute a further application under the Freedom of Information Act 1991 (“the FOI Act”).
I understand you seek access to the following documents:
—      all records pertaining to Edna Margaret Miller;
—      all records pertaining to yourself, John Milton;
—      a full copy of the application to the Guardianship Board as it affected your mother.
I further understand that the period to which your request relates is 1980 –1992.
The letter advised that the chief executive officer, as the accredited FOI officer for the purposes of considering Mr Milton’s application, had determined that he had refused access to a number of documents in their entirety under s 20(1)(a) of the FOIAct on the basis that they contained exempt material, and secondly that he had refused access to other documents under s 20(1)(a) and s 20(4) of the FOIAct, as he had determined that the documents contained some exempt material, but had determined to partially release those documents with the exempt matter deleted.
There were 28 documents in total. There were 16 documents to which access had been refused entirely. These documents are those numbered 2, 3, 4, 5, 7, 10, 11, 12, 15, 16, 17, 18, 19, 22, 23 and 28. Those documents which were partially released, that is with the exempt matter deleted, are those numbered 1, 6, 8, 20 and 21. The documents numbered 9, 13, 14, 24, 25, 26 and 27 were not considered to be exempt and a copy was provided to Mr Milton. They are not part of this appeal.
In each case the documents were identified. The letter advised that the documents were exempt, because they fell within either Clause 6, Clause 9 or Clause 11 of the Schedule to the FOI Act, but without identifying specifically in relation to each document, the clause or clauses by reason of which it was exempt. A Schedule setting out the reasons by which each document is said to be exempt or partially exempt, was provided to the Court.
Mr Milton appealed against this determination, pursuant to his right under s 40(2) of the FOIAct, by Notice of Appeal lodged on 24 October 2007. The fact of the Notice of Appeal pre-dating the determination appealed from is now explained. On 19 July 2007, Mr Milton made a further request to Unley Council, as set out above. That request not having being dealt with within 30 days, as required by s 14(2) of the FOIAct and, Mr Milton being of the view that the Unley Council had defaulted, appealed to this Court. There was further communication between the parties on 31 October 2007 and 3 November 2007, following which the Unley Council’s determination of 14 December 2007, in respect of his FOI application, was advised to Mr Milton. It was agreed by the parties that the Court would address the appeal as an appeal against the determination made on 14 December 2007.
The Legislation
In general terms, a person has a right to be given access to an agency’s documents in accordance with the FOIAct: s 12.
The objects of the Act include the promotion of openness in government and accountability of government agencies: s 3(1). The means of achieving the objects of the Act include the conferring on each member of the public a legally enforceable right to be given access to documents held by government, subject only to restrictions consistent with the public interest and the preservation of personal privacy: s 3(2)(b). Further, it is the clear intention of Parliament expressed in the FOIAct, that a person or body exercising administrative discretion conferred by the Act, exercise that discretion as far as possible in a way that favours disclosure of information without infringing the right to privacy of individuals: s 3A(1). In addition, agencies are required by the FOIAct to give effect to the Act in a way that assists members of the public to exercise rights given by the Act: s 3A(2).
“Agency” is defined in s 4(1) to include a municipal council, such as the respondent, Unley Council. The manner in which a right to be given access to documents may be pursued as set out in Part 3 of the FOIAct. An agency may refuse access to a document in certain circumstances. The basis for refusal of access and the limitations thereon, are set out in s 20 in Part 3 of the FOI Act, as follows:
20—Refusal of access
(1) An agency may refuse access to a document—
(a)if it is an exempt document; or
(b)if it is a document that is available for inspection at that or some other agency
(whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge; or
(c)if it is a document that is usually and currently available for purchase; or
(d)if it is a document that—
(i)was not created or collated by the agency itself; and
(ii)genuinely forms part of library material held by the agency; or
(e)if it is a document that came into existence before 1 January 1987.
(2) Subsection (1)(e) does not permit an agency to refuse access to—
(a)a document that contains information concerning the personal affairs of the applicant; or
(b)a document that is reasonably necessary to enable some other document (being a document to which the agency has given access under this Act) to be understood; or
(c)a document if 20 years have passed since the end of the calendar year in which the document came into existence.
(4) If—
(a)it is practicable to give access to a copy of a document from which the exempt matter has been deleted; and
(b)it appears to the relevant agency (either 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,
the agency must not refuse to give access to the document to that limited extent.
An “exempt document” is a document that is “exempt by virtue of Schedule 1”: s 4. Schedule 1 identifies classes of exempt documents. The classes of exempt documents upon which Unley Council relied in its determination of 14 December 2007 are those identified in Clauses 6, 9 and 11 of Schedule 1. The relevant provisions of those clauses are set out below:
6—Documents affecting personal affairs
(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead).
…
9—Internal working documents
(1) A document is an exempt document if it contains matter—
(a)that relates to—
(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)the disclosure of which would, on balance, be contrary to the public interest.
…
11—Documents relating to judicial functions etc
A document is an exempt document if it contains matter—
(a)relating to the judicial functions of a court or tribunal; or
(b)prepared for the purposes of proceedings (including any transcript of the proceedings) that are being heard or are to be heard before a court or tribunal;
or
(c)prepared by or on behalf of a court or tribunal (including any order or judgment made or given by the court or tribunal) in relation to proceedings that are being heard or have been heard before the court or tribunal.
The provisions of s 20 have effect subject to the provisions of Division 2 of Part 3 of the Act: s 24 FOIAct.
An appeal lies to this Court from a review, made in this case by the chief executive officer of Unley Council: s 40 of the FOI Act. On appeal, the burden of establishing that the determination was justified, lies on the Unley Council: s 48. That was confirmed by this Court in Konieczka v South Australia Police [2006] SADC 134.
The Documents
A number of documents were considered to be exempt or partially exempt by reason of Clause 6(1) of Schedule 1 to the Act. Under s 26(2), in Division 2 of Part 3 of the FOI Act, the Unley Council could not give access to a document that contains information concerning the personal affairs of any person, except to the person concerned or after consultation or an attempt to consult with the person concerned as to whether the document is exempt under Clause 6 of Schedule 1 to the FOI Act. S 26(5) gives meaning to the expression “the person concerned” as follows:
…
(5) A reference in this section to the person concerned is, in the case of a deceased person, a reference to the personal representative of that person or, if there is no personal representative, the closest relative of that person of or above the age of 18 years.
…
Thus, assuming that documents are exempt by reason of Clause 6, the question arises as to whether Mr Milton is either the personal representative, or if there is no personal representative, the closest relative of the late Edna Margaret Miller (Mrs Miller) above the age of 18 years. If Mr Milton is in either of these categories, he may be given access to the documents exempted by reason of Clause 6.
A number of documents were determined by Unley Council to be partially exempt, in reliance upon Clause 9 of Schedule 1; because they were considered to be internal working documents, the disclosure of which would on balance be contrary to the public interest. The issue then, in relation to those documents that have been exempted partially in reliance upon Clause 9, is whether their disclosure would, on balance, be contrary to the public interest.
Two of the 28 documents are said to be exempt, pursuant to Clause 11 of Schedule 1. It is said that those two documents contain matter regarding proceedings before the Guardianship Board in relation to Mrs Miller. The issue to be first determined in relation to these documents, is whether the Guardianship Board is a court or a tribunal, as contemplated by Clause 11.
I note that one document has been exempted by Unley Council, according to the Schedule of Documents, partially in reliance on Schedule 13(1), although this Schedule was not mentioned in the letter responding to Mr Milton’s application.
Whether the appellant is the personal representative or closest relative of Edna Margaret Miller
In the course of argument, the Unley Council conceded that there is no doubt that Mr Milton is the only living child of Mrs Miller (see transcript at page 26). In addition, Mr Milton provided to the Court a photocopy of a certified copy of registration of his birth obtained on 17 June 1975, which shows that Mr Milton was born 23 August 1946 in Subiaco, Western Australia to Mrs Miller.
Mrs Miller was the subject of an Administration Order made by the Guardianship Board under the Mental Health Act 1977 on 14 November 1986. That Order appointed the Public Trustee as administrator of her estate. That Order revoked the enduring power of attorney previously given by Mrs Miller to John Milton. In 1993, the Mental Health Act 1977 was repealed by the Mental Health Act 1993. However, the transitional provisions set out in the Schedule to the Mental Health Act 1993 provided that administration orders made under the former Act continued to have force as an administration order under the Guardianship and Administration Act 1993: see Clause 9 of the Schedule to the Mental Health Act 1993.
On 4 November 2004, Mrs Miller died. The appointment of the Public Trustee as the administrator under the original Administration Order, ceased to have effect on that date: s 54(1) of the Guardianship and Administration Act 1993.
At law, the personal representative of a deceased person is the executor of the estate named in the Will, where the deceased left a Will. Where the deceased person died intestate, his or her estate vests in the Public Trustee, until an order has been obtained appointing an administrator of the estate: s 45 Administration and Probate Act 1919. Once an administrator of the estate has been appointed, the administrator is the personal representative of the deceased.
This is a difficult situation, and the evidence is not clear. It appears that Mrs Miller had made a Will, but that the original Will has been lost. The Public Trustee advised Unley Council, by letter dated 18 November 2004, of the death of Mrs Miller and that “Mr J Milton is the executor of the deceased estate”, and requested the Unley Council to alter its records and “forward all future accounts and correspondence, in the name of the estate, to:”, and then advised the name “Mr J Milton” and an address.
The Unley Council acted accordingly and it appears that rates and other notices were directed to Mr Milton, who is the appellant in this matter.
Probate has not been granted in respect of Mrs Miller’s estate. Letters of administration have not been granted nor an administrator appointed.
However, I am persuaded that both the Public Trustee and Unley Council treated Mr Milton as the personal representative of his late mother, Mrs Miller, irrespective of the situation at law.
The onus is on the Unley Council to prove that its determination was justified. Unley Council was not satisfied that Mr Milton is either the personal representative or the closest living relative over the age of 18 years, of Mrs Miller. Unley Council has submitted that in effect, Mr Milton should show he is the closest living relative by producing his mother’s death certificate, in the event that the certificate indicates that there was no living spouse at her death (having already conceded that Mr Milton is the sole living child). However, Unley Council have acted as if Mr Milton has been his late mother’s personal representative since her death. In any event, production of the death certificate for Mrs Miller would not necessarily reveal whether there now exists any surviving spouse, given that 4 years have passed since her death.
At the time of the Administration Order, Mrs Miller was described as a widow. The action of the Public Trustee in advising that Mr Milton was the executor suggests that there was then no evidence of a surviving spouse of Mrs Miller.
In the circumstances where Mr Milton has, for the past 4 years, been treated as the personal representative of Mrs Miller by the Unley Council which concedes that he is her sole living issue, I am not persuaded that Unley Council’s determination was justified. On the balance of probabilities, Mr Milton is the closest living relative of his late mother. He is over 18 years old.
It follows that Mr Milton may have access to all those documents exempted or partially exempted by reason of Clause 6(1), because he falls within the exemption in s 26(2). He is the person concerned, either by reason of being the de facto personal representative of his late mother, or the closest living relative over the age of 18 years.
The Public Interest Documents
There are five documents that have been exempted in partial reliance on Clause 9(1) of the Schedule. The appropriate approach is to examine each document in turn.
Document 2
This appears to be a report, in the form of a letter, by a member of the Downey Community Mental Health Team to an aged care worker at Unley Council following a visit to Mrs Miller in March 1985. It may be a document that falls within Clause 9(1)(a)(i), but that is not the entire test for exemption.
At the time of the hearing it was more than 23 years since the document came into existence. Having considered the contents of the document in the context of its age, I cannot see why it would be contrary to the public interest to grant access to the document to Mr Milton.
Document 4
This is a further report on Mrs Miller in the form of a letter by a community mental health nurse from Downey Community Outreach to an aged care worker at Unley Council. It was written on 9 May 1985 - 23 years ago.

Having read the letter, I am unable to see why its disclosure would be contrary to the public interest, although I acknowledge that the letter may fall within Clause 9(1)(a)(i) of Schedule 1.
Document 5
This is a further letter from a community nurse member of the Downey Community Team addressed to the aged care team at Unley Council, dated 24 June 1985 and expressed to be “in confidence”.
Having read the letter and having regard to the passage of time, I fail to see why its disclosure would be contrary to the public interest, although it may fall within Clause 9(1)(a)(i).
Document 19
This is a page of hand written notes of a case conference concerning Mrs Miller, between a representative of Southern Domiciliary Care and officers of the City of Unley, that took place on 19 February 1987. The document was dated 20 February 1987.
While this document contains matter that relates to a consultation that had taken place involving officers of the Unley Council, it does not appear to have been a consultation in the course of, or for the purpose of decision making functions of the Unley Council. In any event, I cannot see, having read it, that the disclosure of the 21 year old document would be contrary to the public interest.
Document 23
This document, dated 17 July 1989, is a letter from an aged care worker of the Unley Council to the chairman of the Mental Health Review Tribunal, together with notes concerning Mrs Miller taken from the case notes held by the aged care team at the Council.
It is asserted, in respect of this document, that its disclosure “would hinder the flow of information and co-operation between agencies and the assistance to be provided to the community by agencies working co-operatively”, and also that “the public interest in persons providing this type of information for the benefit of others outweighs the public interest in disclosure”, and that “such information would not be provided if it could not be provided in confidence”. The last part of these reasons relates to Clause 13(1) of Schedule 1, which was not cited in the reasons for refusal which founded this appeal.
In my view the document is exempt by reason of Clause 11(b). It falls squarely within that provision, whether or not it falls within Clause 13(1), because it was prepared for the purposes of proceedings in the Mental Health Review Tribunal. For reasons I express in paragraphs [49] and [50], that body was a tribunal within the meaning of the FOI Act.
In so far as the determination that documents 2, 4, 5, 19 and 23 are exempt documents has been based in part on Clause 9(1), I conclude that the determination was not justified. In respect to document 23, I have determined that this was an exempt document by reason of Clause 11(b). Thus, document 23 was correctly determined to be an exempt document, but for the wrong reasons.
Whether the Guardianship Board and Mental Health Review Tribunal were Tribunals within the meaning of the FOIAct
There are two documents, namely documents 16 and 22, in respect of which Clause 11 has been relied upon in the determination that the documents were exempt documents.
Document 16 is the Administration Order made in respect of Mrs Miller on 14 November 1986. Document 22 is a letter dated 7 February 1989 from the senior administrative officer of the Guardianship Board to the aged care worker at the Unley Council advising that the Administration Order, in respect of Mrs Miller, would be reviewed on 17 February 1989 and inviting the addressee to attend the hearing and place any matters before it either personally or in writing.
The FOIAct defines a “tribunal” as “any body (other than a court) invested by the law of this State with judicial or quasi-judicial powers.” The effect of the combination of this definition, s 20 and Schedule 1, Clause 11 is that documents prepared for, or in the process of court or tribunal proceedings, or by or on behalf of a court or tribunal are not documents to which access can be given under the FOI Act. The legislation that relates specifically to a court or tribunal will govern access to documents in, or prepared for, or by or on behalf of, the court or tribunal.
In 1986, the Guardianship Board existed pursuant to s 20 of the Mental Health Act 1977. By s 28, the Guardianship Board was empowered to appoint an administrator of a person’s estate where it was satisfied that the person was suffering from a mental illness or mental handicap and had formed the opinion that the said person was incapable of administering his or her affairs.
The Mental Health Review Tribunal existed pursuant to s 29 of the Mental Health Act 1977, as at the date of document 22, namely in 1989. It appears that in 1989, the Mental Health Review Tribunal, among other functions, had the function of conducting a review periodically, in respect of a protected person who had been placed in the custody of another person. Mrs Miller was at the time in this category, by reason of the Administration Order made by the Guardianship Board in 1986. The Tribunal was required to form an opinion and be satisfied of certain matters under s 35 of the Mental Health Act.
I am satisfied that both the Guardianship Board and the Mental Health Review Tribunal, as they existed at the relevant time, pursuant to the Mental Health Act 1977, were tribunals within the definition in s 4(1) of the FOIAct. In coming to this conclusion, I have been influenced by the analysis of the High Court in Precision Data Holdings Ltd v Wills (1992) 173 CLR 167 at paragraphs 20 to 26. I have concluded that in each case, the Guardianship Board and the Mental Health Review Tribunal at the relevant time was invested by the Mental Health Act 1977 with functions that were judicial or quasi-judicial. I note that this Court came to the same conclusion with respect to the Guardianship Board, albeit as established under the Guardianship and Administration Act 1993, in Pietruzska v Guardianship Board (SADC unreported - delivered 11 January 2001 by Lowrie DCJ).
Document 16 is a document that contains matter prepared by a tribunal in relation to proceedings that had been heard before that tribunal, specifically an order made by the tribunal, and thus is an exempt document by Clause 11(c).
I have noted that a different course was taken in another FOI appeal decision of this Court, namely Moore v Medical Board of SA [2001] SADC 106, where despite the Court finding that the Medical Board was a Tribunal within the meaning of the FOI Act, it determined that the appellant should have access to the document. The facts there were very different from the facts in this matter, including that the FOI applicant’s surgery and treatment were the subject of evidence in a Medical Board matter.
Document 22 does not contain matter prepared by or on behalf of a tribunal in relation to proceedings that were to be heard before the tribunal. It is no more than an administrative communication advising the addressee of the date and venue for a review hearing in relation to the Administration Order made regarding the estate of Mrs Miller. The letter does not contain any material as envisaged by Clause 11(c), and does not fall within Clause 11(a) or (b). It is not an exempt document.
Conclusion
I have concluded there are cogent reasons to depart from the decision of Unley Council. I am satisfied that with the exception of documents 16 and 23, the documents are not exempt documents, either wholly or partially. The appeal is upheld in relation to documents 2, 3, 4, 5, 7, 10, 11, 12, 15, 17, 18, 19, 22 and 28. Mr Milton should now be given access to all documents in their entirety excepting documents 16 and 23.
I will hear the parties as to final orders.