Minister for Education and Child Development v Chapman
[2013] SADC 130
•27 September 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Freedom of Information Act)
MINISTER FOR EDUCATION AND CHILD DEVELOPMENT v CHAPMAN
[2013] SADC 130
Ruling of His Honour Judge Slattery
27 September 2013
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS
Application by the Minister for Education and Child Development for leave to appeal to the District Court under ss40(1) of the Freedom of Information Act 1991 – Application by the Minister to have a decision of the Ombudsman requiring disclosure of a redacted copy of information gathered by the Child Death and Serious Injury Review Committee quashed – Whether the confidential nature of the documents and the exemptions under section 52X of the Children’s Protection Act 1993 remove the documents requested from the reach of the Freedom of Information Act 1991 because of the terms of the exemptions in that Act – Whether cogent reasons exist to depart from the decision of the Ombudsman.
Held: leave to appeal granted - appeal allowed.
Decision of the Ombudsman dated 18 June 2012 set aside.
Freedom of Information Act 1991 s3, s3A, s4, s9, s12, s15, s16, s18, s19, s20, s23, s24, s29, s39, ss40(1), Schedule 1-16, Schedule 1 Clauses 12 and 13, Schedule 1 Part 1, 2, 3 Part 5 Division 1 ; Children’s Protection Act 1993 s6, s52S, s52T, s52U, s52V, s52W, s52X, s58, Part 7C Division 2 ; The Oxford English Dictionary (Second Edition, 1989); District Court Act 1991 s42A, s42B, s42C, s42D, s42E and s42F., referred to.
Moloney v Motor Accident Commission [2012] SASC 170; Motor Accident Commission v Moloney [2013] SASCFC 58; Ipex Information Technology Group Pty Ltd v Department of Information and Technology Services SA (1997) 192 LSJS 54 ; Moore v The Registrar of the Medical Board (2001) 215 LSJS 133 , discussed.
Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 ; B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; Harrow Trust v Adelaide Hebrew Congregation Inc. (2002) 221 LSJS 449, considered.
MINISTER FOR EDUCATION AND CHILD DEVELOPMENT v CHAPMAN
[2013] SADC 130
This is an application by the Minister for Education and Child Development (the Minister) for leave to appeal under ss40(1) of the Freedom of Information Act 1991 (FOI Act) to the District Court of South Australia against a determination of the South Australian Ombudsman. On 18 June 2012 the Ombudsman varied a determination of an agency of the South Australian Government in the matter of an application under the FOI Act made by the respondent, the Honourable Vickie Chapman MP (Ms Chapman).
The within appeal is to be heard and determined in this Court under its Administrative and Disciplinary Division (see: s42A, s42B, s42C, s42E and s42F District Court Act 1991). Section 42E District Court Act requires that I must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
Summary of action
In July 2011 Ms Chapman sought access to certain documents under the FOI Act, specifically, all reports and correspondence received by the Office of the Minister for Families and Communities from the Child Death and Serious Injury Review Committee from 2008 to present. The Child Death and Serious Injury Review Committee was established under the Children’s Protection Act 1993 (CPA). Its task was to review cases in which children die or suffer serious injury and, to report to the Minister particularly with the view to identifying legislative or administrative means for preventing similar cases of death or serious injury in the future. It was also to make and monitor the implementation of recommendations for avoiding preventable child deaths or serious injuries.
There were about 60 files in the Minister’s office that were covered by the request. The relevant agency formed the view that those documents fell within the purview of s52X of the CPA and were precluded from any request under the FOI Act or alternatively were exempt documents for the FOI Act.
Under the processes of the FOI Act, the request of Ms Chapman was narrowed to a request for all in depth reports and letters of transmittal provided to the Minister for Families and Communities by the Child Death and Serious Injury Committee for the period 2008 to present, excluding the names in the report. A question arose whether this dealt with the issues under s52X CPA. The relevant agency refused access to the documents requested under the narrowed scope of request. A meeting took place with the Ombudsman, the narrowed request was discussed, a schedule of documents was requested to be provided to the Ombudsman and then the Ombudsman requested confirmation of the narrowed scope of request as well as providing provisional views about the response of the agency.
Notwithstanding the request of the Ombudsman, the request was not narrowed by Ms Chapman and was in fact expanded to include all reports sent to the Minister by the Child Death and Serious Injury Review Committee and the letters that accompany those reports from 2008 until 25 July 2011 and to include reports generated at the completion of a review under Part 7C of the CPA as well as any other reports and accompanying letters from 2008 until 25 July 2011.
The Ombudsman handed down a provisional determination and then a final determination. The Ombudsman required the provision by the agency of the relevant documents after the redaction of what he considered to be exempt information under ss20(4) and ss20(1) of the FOI Act.
The Minister appeals against the decision of the Ombudsman which ordinarily entails a two step process: an application for leave to appeal and then, if leave is granted, the appeal proper. I refer to the matters set out in paragraphs [48] and [49] of this judgment. Having regard to all of the matters therein set out and for the reasons set out hereunder, it is my decision to grant leave to appeal to the Minister and to allow the appeal because I am satisfied that cogent reasons exist to depart from the decision.
The appeal grounds and the Orders sought
This appeal is against the whole of the determination and the leave sought by the appellant Minister is based on the following two matters (of importance):-
1. The appeal raises important questions of law regarding the construction of s18 and Clauses 12 and 13 of Schedule 1 of the FOI Act and s52X and s58 of the Children’s Protection Act 1993;
2. The effectiveness of the Child Death and Serious Injury Review Committee established by the Children’s Protection Act 1993 and possibility that the public interest is compromised by the determination of the Ombudsman.
There are six grounds of appeal. They are as follows:-
“1. The Ombudsman erred in allowing the applicant to redefine her application at the stage of external review.
2. In the alternative to ground 1, the Ombudsman erred in deciding that the agency could not rely upon section 18(1) of the Freedom of Information Act, 1991 at the stage of external review when the Ombudsman allowed the applicant to redefine her application at that stage.
3. The Ombudsman erred in determining that the processing of the respondent’s application by the agency would not involve an unreasonable and substantial diversion of resources within the meaning of section 18(1) of the Freedom of Information Act, 1991.
4. The Ombudsman erred in determining that the documents found to be within scope were not wholly exempt by reason of section 20 and clauses 12 and 13 of the Freedom of Information Act or by reason of section 52X or 58 of the Children’s Protection Act, 1993.
5. The Ombudsman erred in determining that the agency’s argument that release of records would weaken or compromise the operations of the Child Death and Serious Injury Review Committee entailed that the Committee would wittingly ignore their statutory duty to report to the Minister.
6. The Ombudsman erred in failing to attach proper weight to the public interest in not disclosing records of the Child Death and Serious Injury Review Committee having regard to the legislative indications of the extreme sensitivity of such records in section 52X and 58 of the Children’s Protection Act, 1993.”
The appellant seeks the following Orders:-
“1. An order that the determination by the SA Ombudsman dated 18 June 2012 be quashed and the determination of the agency reinstated.
2. Such further or other orders as the Court deems appropriate.”
The Freedom of Information Act 1991
The FOI Act, according to its heading is: “an Act to provide for public access to official documents and records; to provide for the correction of public documents and records in appropriate cases; and for other purposes.”
The objects of the FOI Act are set out in s3 of the Act that reads as follows:-
“3—Objects
(1) The objects of this Act are, consistently with the principle of the Executive Government's responsibility to Parliament—
(a) to promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State; and
(b) to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies.
(2) The means by which it is intended to achieve these objects are as follows:
(a) ensuring that information concerning the operations of government (including, in particular, information concerning the rules and practices followed by government in its dealings with members of the public) is readily available to members of the public and to Members of Parliament; and
(b) conferring on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy; and
(c) enabling each member of the public to apply for the amendment of such government records concerning his or her personal affairs as are incomplete, incorrect, out-of-date or misleading.
(3) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records otherwise than under this Act if it is proper and reasonable to do so or if it is permitted or required by or under any other Act or law.”
I agree with the sentiment elsewhere expressed that the method of drafting of this provision suggests some bias in favour of giving the public rights of access to information and records held by the Government (see: Ipex Information Technology Group Pty Ltd v Department of Information and Technology Services SA (1997) 192 LSJS 54 at 60-62; Moore v The Registrar of the Medical Board (2001) 215 LSJS 133 at 147).
The principles of administration of the FOI Act are set out in s3A which reads as follows:-
“3A—Principles of administration
(1) It is the intention of the Parliament—
(a) that this Act should be interpreted and applied so as to further the objects of this Act; and
(b) that a person or body exercising an administrative discretion conferred by this Act exercise the discretion, as far as possible, in a way that favours the disclosure of information of a kind that can be disclosed without infringing the right to privacy of individuals.
(2) Agencies are to give effect to this Act in a way that—
(a) assists members of the public and Members of Parliament to exercise rights given by this Act; and
(b) ensures that applications under this Act are dealt with promptly and efficiently.”
As will be seen by an examination of s3 of the FOI Act, the conferral upon each member of the public and upon members of Parliament of a legally enforceable right to be given access to documents is governed by restrictions that are consistent with notions of public interest and the preservation of personal privacy. This is an obviously important qualification upon the breadth of operation of the FOI Act.
Section 4 of the FOI Act is the dictionary provision. It is followed by a series of exclusions which are not relevant.[1]
[1] S5A FOI Act provides that the Act is not to apply to Parliament or Parliamentary Committees and s6 provides that the Act is not to apply to Judicial functions of Courts and Tribunals.
Part 2 of the FOI Act governs publication of information concerning agencies,[2] the availability of information, statements and policy documents,[3] and the application of the Part.[4] These are self explanatory and do not need further elucidation here. Pursuant to ss9(1) of the FOI Act, a responsible Minister for a State government agency must, at intervals of not more than 12 months, cause an up-to-date information statement to be published in the manner prescribed by Regulations. I will refer later to the importance of this requirement. The agency concerned in this matter published annually an up-to-date information statement in accordance with the requirements of s9 of the FOI Act.
[2] S9 FOI Act.
[3] S10 FOI Act.
[4] S11 FOI Act.
Part 3 of the FOI Act governs the right of access to documents. Section 12 of the FOI Act provides a right of access to agencies’ documents to every person. In order to obtain the access, the person must make an application[5] and then the application is to be dealt with within a particular period of time (generally 30 days).[6]
[5] S13 FOI Act.
[6] S14(2) FOI Act. Note also s14A extension of time limits.
Part of the methodology to be applied by an agency in respect of giving access to documents (if such access is justified) is set out in s15 of the FOI Act. That section reads as follows:-
“15—Incomplete and wrongly directed applications
An agency must not refuse to accept an application merely because it does not contain sufficient information to enable the document to which it relates to be identified without first taking such steps as are reasonably practicable to assist the applicant to provide such information.”
This provision reflects part of the philosophy of the Act and the responsibility upon an agency. It requires an agency to take any reasonably practical steps to assist an applicant to provide information that may be requested. Similarly, s16 FOI Act[7] allows an agency to transfer the application to another agency which may hold the documents which that particular agency does not hold.
[7] 16—Transfer of applications
Under s18 FOI Act, an agency may refuse to deal with an application and that section reads as follows:-
“18—Agencies may refuse to deal with certain applications
(1) An agency may refuse to deal with an application if it appears to the agency that the nature of the application is such that the work involved in dealing with it within the period allowed under section 14 (or within any reasonable extension of that period under section 14A) would, if carried out, substantially and unreasonably divert the agency's resources from their use by the agency in the exercise of its functions.
(2) An agency must not refuse to deal with such an application without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency's resources from their use by the agency in the exercise of its functions.
(2a) An agency may refuse to deal with an application if, in the opinion of the agency, the application is part of a pattern of conduct that amounts to an abuse of the right of access or is made for a purpose other than to obtain access to information.
(3) An agency may refuse to continue dealing with an application if—
(a) it has requested payment of an advance deposit in relation to the application; and
(b) payment of the deposit has not been made within the period specified in the request.
(4) If an agency refuses to continue dealing with an application under subsection (3)—
(a) it must refund to the applicant such part of the advance deposits paid in respect of the application as exceeds the costs incurred by the agency in dealing with the application; and
(b) it may retain the remainder of those deposits.
(5) An agency that refuses to deal with an application under this section must forthwith cause written notice of that fact to be given to the applicant.
(6) Such a notice must specify—
(a) the reasons for the refusal; and
(b)the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based.
(7) An agency is not required to include in a notice any matter if its inclusion in the notice would result in the notice being an exempt document.
(8) A refusal to deal with, or to continue to deal with, an application under this section is a determination for the purposes of this Act.”
An application for provision of documents may be refused depending upon the amount of work required to undertake the request, having regard to the time limit provided, including where the carrying out of that work would substantially and unreasonably divert the agency’s resources. Consistent with the general philosophy of the Act, ss18(2) provides that assistance must be given by the agency to the applicant (for the document) to amend the application so as to decrease the work and more narrowly define the document required.
Under ss18(5), where the agency has refused to deal with the application, then written notice of that refusal must be given to the applicant specifying reasons and the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based.[8] Such a refusal is a determination for the purpose of the Act.[9] The obligation to provide a notice and reasons for refusing to deal with an application apply generally and are not limited to the circumstances prescribed in ss18(2a), (3), or (4).
[8] S18(5), (6) FOI Act.
[9] S18(8) FOI Act.
In the event that there is a refusal to deal with or to continue to deal with the application, then there is a determination for the purposes of the Act.[10]
[10] S18(8) FOI Act.
Section 19 FOI Act deals with determinations of applications. The section requires the agency to make a determination about whether access is to be given or is to be refused and if access is to be given, other ancillary matters are to be considered.[11] Subsection 19(2) reaffirms that a failure to determine an application is to be taken to be a determination of an application by the refusal of access to the document which is requested.[12]
[11] S19(1)(a), (b) and (c) FOI Act.
[12] S19(2)(a)(i), (ii) and (b) FOI Act.
Section 20 FOI Act permits an agency to refuse access to a document. It reads 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.”
For present purposes, it is necessary to first focus on subparagraph 20(1)(a). The agency may refuse access to a document if it is an exempt document. The expression “exempt document” is defined in s4 FOI Act to mean a document that is an exempt document by virtue of Schedule 1.
Schedule 1 of the Act defines exempt document in a number of parts. The first type of exempt document is Cabinet documents as set out in Schedule 1 Part 1 Regulation 1 (1). The exclusions to exempt documents are set out in 1(2), 2(a) and (3) of the Schedule. The second type of exempt documents are Executive Council documents[13] and, exempt documents communicated by another Government[14] and documents affecting law enforcement and public safety.
[13] See Schedule 1 Part 1, 2 FOI Act.
[14] Schedule 1 Part 1, 3 FOI Act.
Part 2 of Schedule 1 sets out the third category of exempt documents. They are generally described as documents requiring consultation and are covered in several categories. The first is documents affecting intergovernmental or local-governmental relations.[15] The second is documents affecting personal affairs. Under Clause 6(1), an exempt document includes documents that contain matters the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person living or dead. The second subparagraph covers the exemption of documents that contain allegations or suggestions of criminal or other improper conduct on the part of the person (living or dead) the truth of which has not been established by judicial process and the disclosure of which would be unreasonable.
[15] Part 2, 5 FOI Act.
The next category of documents concerns exempt electoral records,[16] documents affecting business affairs[17] and documents affecting the conduct of the search.[18] The third category of documents is set out in Part 3. They include internal working documents,[19] documents subject to legal professional privilege,[20] documents relating to judicial functions[21] and documents affecting the economy of this State[22] and other matters which are not relevant to the within proceedings.
[16] Part 2, 6A FOI Act.
[17] Part 2, 7 FOI Act.
[18] Part 2, 8 FOI Act.
[19] Part 3, 9 FOI Act.
[20] Part 3, 10 FOI Act.
[21] Part 3, 11 FOI Act.
[22] Part 3, 14 FOI Act.
For the purposes of Schedule 1 Part 3, 12(1), a document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act. It is necessary to prove in this respect that it is the act of the provision of the information to the person who seeks access to the document which must constitute the offence.[23] As will be seen, the operation and hence the meaning of this portion of the Schedule relating to exempt documents is axiomatic to the determination of the issue in this matter.
[23] Schedule 1 Part 3, 12(2) FOI Act.
Exempt documents and discretionary matters
It is important to identify that access may be refused (by the agency) to an exempt document at its discretion. It may be anticipated that in the usual course, the agency will refuse access to the document: this may quite confidently be predicted about a document, the disclosure of which would constitute an offence. And it is to be emphasised that the concept here under consideration is that of a “document” (and not part of the whole). This approach reflects what is generally the reality: it is neither sensible nor practical to excise portions of the whole document that answers the description under Schedule 1 Part 3, 12(1) of the Schedule. Such a process would be fraught with difficulty.
Under ss24(4) FOI Act, if it is practicable to give access to a copy of a document from which the exempt matter has been deleted and the applicant would wish to be given a copy of such redacted document, then the agency is permitted to give access to the document to that limited extent. In my view, the question of whether redaction of a portion of an exempt document is a consideration that arises only after the anterior question has been answered: whether upon a proper consideration, the legislation that prohibits publication of the document could, on any view be construed such that redaction of a portion and publication of the balance of a document could be seen as compliance with that prohibition. An assessment must also be made of what is practicable in these circumstances.
It is equally important to identify that ss20(4) FOI Act does not operate to create some exclusion from the operation of ss20(1) or for that matter any part of the Schedule that stipulates exempt documents. Once a document is exempt under subparagraph 20(1)(a) FOI Act it is not required to be produced. Deletion of exempt matters does not arise. The concept of deletion only arises where it may be said that the agency decides, as a matter of practicality for ss20(4) FOI Act, that there is a possibility of the deletion of some type of exempt matter. Logically there are a number of steps in this process to be undertaken by the agency. At this juncture, it is sufficient to say that ss20(4) FOI Act does not create (and it is logically not intended to create) a subcategory of documents excluded from the operation of subparagraph 20(1)(a) FOI Act.
Another matter of importance here is to understand that a document may fall within the Schedule on one ground (prohibition against publication) and separately there may be an exclusion of the operation of the FOI Act to that document for a plethora of reasons. One example is the operation of s52X CPA. I will return to that matter later.
Under the operation of these subsections, the agency has a discretion to refuse access to a document that is an exempt document. The agency, in the exercise of that discretion may give consideration to redaction of information which is exempt and delivery of that redacted document to the applicant.
Merely because the legislation contemplates redaction does not affect the more fundamental anterior question of what is a proper consideration of and appreciation of the effect of the statute that creates the prohibition. That, in turn, requires a close analysis of the statute that creates the prohibition.
The correct approach
The proper approach is that it is first necessary for the agency to decide whether the document is an exempt document and to investigate how the statute relating to the exemption operates; then the agency must assess whether any consideration need be given to the question of redaction and whether access can be given to a redacted copy of the document.
Under s23 FOI Act, the agency must notify the applicant in writing of its determination. The required contents of that notification are set out in ss23(2) FOI Act.
The review process: internal and external
Under Division 3 of Part 3, a person who is aggrieved by a determination made by an agency is entitled to an internal review of that determination.[24] The content of the application for review is governed by ss29(2) FOI Act and the requirements upon the agency under such application for internal review are governed by ss29(3), (4), (5) and (6).
[24] S29 FOI Act.
External review and appeal is governed by Part 5 of the Act. Under ss39(2) FOI Act, a person who has been aggrieved by a determination or a person who is aggrieved by a determination following an internal review may apply to the relevant authority for a review of the determination. Time limits are set under ss39(3) for such applications and that time limit may be extended under ss39(4). For the purposes of the FOI Act, the right of external review in relation to the application made by the respondent was to the Ombudsman. The powers of the Ombudsman are set out in ss39(5) FOI Act which reads as follows:-
“Section 39—External review
(5) In conducting a review under this section, the relevant review authority—
(a) may carry out an investigation into the subject matter of the application (and for the purposes of such an investigation may exercise the same investigative powers as are conferred on the Ombudsman by the Ombudsman Act 1972 in relation to an investigation duly initiated under that Act, including the powers of a commission as defined in the Royal Commissions Act 1917); and
(b) may, if it appears to the relevant review authority that the agency has failed to properly sort or compile documents relevant to the review or to undertake consultations relevant to the review that should have been undertaken by the agency—
(i)require the agency to sort or compile the documents or undertake the consultations; or
(ii)require officers of the agency to attend at a time and place specified by the relevant review authority for the purpose of sorting and compiling the documents or undertaking the consultations; and
(c) may—
(i)try to effect a settlement between the participants to a review at any time during the review; and
(ii)at the request of the agency, suspend proceedings under this section at any time to allow an opportunity for a settlement to be negotiated.”
Subsection 39(12) FOI Act reads as follows:-
“Section 39 –
(12) If, in conducting a review under this section, the relevant review authority is satisfied that a document is an exempt document, the relevant review authority does not have power to make a determination to the effect that access is to be given to the document (but may, if it thinks fit, offer, together with its reasons for its determination, reasons why the agency might give access to the document despite its exempt status).”
In conducting a review under this subsection, the Ombudsman would need to be satisfied that the document is an exempt document. I have already identified earlier in these reasons those documents which, for Schedule 1 of the FOI Act, are exempt documents and that the concept of whether a document is an “exempt document” or is, for example, completely excluded must be closely scrutinised.
Schedule 1 of the FOI Act defines what are “exempt documents” (viz ss4(1) FOI Act definition of an exempt document): there is no provision or power within the Act for any review authority to (unilaterally or otherwise) extend the meaning of what may be included in the definition of “exempt document”.
That said, there is some breadth within the definitions in Schedule 1 but the extension of the meaning “exempt document” is only to be considered in light of what is contained within the parenthesis in ss39(12) FOI Act, namely the possibility that the Ombudsman might think that there are reasons why the agency might give access to the document despite its exempt status.
The right of appeal: a question of Law
The FOI Act then provides for a right of appeal to the District Court by an agency that is aggrieved by a determination made on a review under Division 1. Subsections 40(1) and (2) of the FOI Act provide as follows:-
“40—Appeal to District Court
(1) An agency that is aggrieved by a determination made on a review under Division 1 may, with the permission of the District Court, appeal against the determination to the District Court on a question of law.
(2) A person (other than an agency)—
(a)who is aggrieved by a determination of an agency following an internal review; or
(b)who is aggrieved by a determination that is not subject to internal review; or
(c) who is aggrieved by a determination made on a review under Division 1,
may appeal against the determination to the District Court.”
It is necessary first to obtain the permission of the District Court for an appeal to proceed against the determination and the question arising under the appeal must be a question of law. At the commencement of the hearing of submissions in this matter, I was informed by counsel that leave to appeal under s40 FOI Act had been granted by a Master of the Court because a concession was made by Ms Chapman that this matter did raise a significant public interest issue. I was not informed about what precisely that significant public interest issue may be, except that it may be presumed to be one or other or both of the two principal grounds pressed in this application on behalf of the Minister.
I will proceed on the basis of the accuracy of my presumption, however I am concerned that difficult questions may arise if I leave that question in abeyance. In particular, it is this Court that is required to assess the question of whether leave should be granted and if so in respect of a identified question or questions and on what basis. In my view, it is appropriate that I consider that matter afresh and record my findings in respect of it.
The question of what constitutes a “question of law” is sometimes a vexed question.
The relevant authorities are gathered within the text Civil Procedure South Australia at DCAS 43.40 at pages 4474-4475. There are generally and usually three matters to be emphasised in addressing what constitutes a question of law and they are:-
1. Whether the established facts bring a particular case within a statutory enactment is a question of law;[25]
2. A review on a question of law provides for a review of the legality of a decision but not a review of its merits;[26] and
3. The criteria for when the application of facts to a term used in a statute is a question of law.[27]
[25] Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51-2.
[26] B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481.
[27] Harrow Trust v Adelaide Hebrew Congregation Inc. (2002) 221 LSJS 449.
It is necessary to summarise the matters upon which the appellant seeks leave to appeal. I have earlier set out the grounds (of appeal) (in paragraphs [8], [9] and [10] hereof) which are disclosed within the application. The following matters are raised within the applicant’s written submissions:-
1. Some six weeks after having agreed to confine the scope of her application, the applicant was permitted by the Ombudsman to redefine the scope of the application and so had broadened the scope of that application beyond the matters in respect of which the reviewable decision of the agency had been made. This broadening of the scope of the application was beyond the power of the Ombudsman under s39 of the FOI Act which provides no specific or incidental power to allow such expansion. In so doing the Ombudsman acted in excess of jurisdiction which is an error of law. Alternatively the Ombudsman misconstrued the statutory provision defining and limiting powers and this amounted to a jurisdictional error.
2. The decision to allow the applicant to expand the scope of her application was unreasonable and irrational because the application upon which the Ombudsman made his decision was not the application which was determined by the agency. The Ombudsman determined a new application and he therefore did not confirm, vary or reverse the determination the subject of the reviews.
3. The Ombudsman rejected the agency’s argument that it could rely upon s18(1) FOI Act in circumstances where the Ombudsman allowed the applicant to enlarge her application but the agency was denied the protections offered by s18(1) FOI Act.
4. The Ombudsman erred in applying s20(4) FOI Act to documents that fell within the scope of s52X of the Children’s Protection Act 1993 and the documents, so protected, were not liable to disclosure under the FOI Act. S20(4) of the FOI Act has no application as the right to access contained in s12 FOI Act also does not apply. As the documents sought are not required to be disclosed under the FOI Act because of the operation of s52X of the Children’s Protection Act 1993, those documents are not within the ambit of s12 FOI Act.
5. The Ombudsman erred in determining that the agency’s argument that release of records would weaken or compromise the operations of the Child Death and Serious Injury Review Committee entailed that the Committee wittingly ignore the statutory duty to report to the Minister.
6. A decision by the Ombudsman that an accredited officer would have little difficulty in redacting material from documents fails to give any or any proper consideration to the relevant considerations in respect of that document including the operation of s52X of the Children’s Protection Act.
7. The Ombudsman erred in failing to attach proper weight to the public interest in not disclosing records of the Child Death and Serious Injury Review Committee having regard to the legislative indications of the extreme sensitivity of such records in s52X and s58 of the Children’s Protection Act 1993 and having regard to the object in section 3 of the FOI Act of maintenance of the effective conduct of public affairs through the free and frank expression of others.
8. Even if the documents were not protected by s52X of the Children’s Protection Act, they would be totally exempt by virtue of Clauses 12 and 13 of Schedule 1. The Ombudsman did not turn his mind to the issue of practicality of redaction in s20(4) of the FOI Act.
As will be seen from the above, the complaints of the appellant fall into two main categories. The first main category of complaint is that the Ombudsman exceeded his jurisdiction by allowing the amendment and therefore expansion of the scope of the application in circumstances where the redefinition of the application was then the basis upon which the Ombudsman considered (and decided upon) the matter. This was in circumstances where no decision had been made by the agency in relation to that expanded application and therefore the Ombudsman was not considering a decision made by the agency in respect of that amended application.
The second main category of complaint was that by virtue of the operation and effect of s52X of the Children’s Protection Act 1993, properly construed, the relevant documents sought by the respondent were not liable to disclosure under the FOI Act.
In my opinion, having regards to the relevant authorities which I have set out above, both of these grounds raised questions of law for consideration by me.
My reasons are: the question of whether the Ombudsman was empowered under the FOI Act to unilaterally permit an applicant to amend a request to a form of request for documents that has not been considered by the agency is a question of law as to whether, in the role fulfilled by the Ombudsman, there is a power under the statute to legally make that decision. And the question of the operation of subparagraph 20(1)(a), ss20(4) Schedule 12(1) FOI Act and s52X CPA and whether the particular facts of this matter are within the operation of those provisions and if so how, involves the interpretation of one or other or both of these statutes and is a question of law.
I am of the view that leave to appeal should be granted in respect of these two grounds. In my deliberations on these grounds and under the previously identified provisions of the District Court Act (s42A – s42E inclusive) it is not necessary for me to identify some particular error in the Ombudsman’s exercise of his discretion (cf: House v The King (1936) 55 CLR 499 at 504-505). I would interfere with the decision of the Ombudsman if I was satisfied that there are cogent reasons to do so. This means that I must be satisfied that there are cogent reasons to depart from the decision of the Ombudsman.
Obviously enough, the test of cogent reasons is expressed in a way that is intentionally different from the test that may apply the principles enunciated in House v The King. I have not been able identify any authority where this test has received consideration at the appellate level. The decision of Judge Smith in this Court in Moore v The Registrar of the Medical Board (2001) 215 LSJS 133: [2001] SADC 106 is to the effect that it is not necessary for the Court to identify any error in the exercise of the decision maker’s discretion. Although I respectfully agree with those sentiments, that issue is anterior to the question of the appropriate applicable test. I did not receive any submissions on this issue at the hearing of the application and it is therefore not appropriate that I embark upon a consideration of that issue here.
One matter can be stated with some certainty: the question of what is sufficient to constitute cogent reasons begets a consideration of any number of matters that may change according to the seriousness and importance of the subject matter and the decision under consideration. Because of the (acknowledged) seriousness of the matters under consideration here, I have taken the view that what may constitute cogent reasons in this case, as nearly as possible, will reflect that an error or errors (as that concept is described in House v The King) has occurred.[28] In that background, and in the balance of this judgment, I will make reference to and use the form of expression “error” or “errors” when arriving at my decision in this matter. I immediately acknowledge that this approach will not be appropriate in all circumstances, but I do consider it to be appropriate in the circumstances under consideration in this case.
[28] “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred” (at pages 504-505).
The Ombudsman’s task: the administrative nature of the review process
In those circumstances it is necessary to embark upon a review of the approach of the Ombudsman in this matter and then to identify those matters which I consider relevant to a decision on the merits in this matter.
Part 5 Division 1 of the FOI Act prescribes the right of external review of an Agency’s decision. The Ombudsman is the relevant review authority in this case (ss39(1)(a) FOI Act).
In deciding whether to exercise the external review process, it is necessary for the applicant person to be aggrieved by a determination of an agency (following an internal review) under ss39(2)(a) FOI Act. This is a two step process; the original decision and internal review of the decision and then the external review. The two step process involves a decision about a matter; document or thing sought by the applicant under the Legislation. It is in respect of such (documents in this context) that the decision is made.
Consistent with that position, the Ombudsman as the relevant authority is required to act as prescribed under ss39(5) FOI Act which reads as follows:-
“39—External review
(5) In conducting a review under this section, the relevant review authority—
(a) may carry out an investigation into the subject matter of the application (and for the purposes of such an investigation may exercise the same investigative powers as are conferred on the Ombudsman by the Ombudsman Act 1972 in relation to an investigation duly initiated under that Act, including the powers of a commission as defined in the Royal Commissions Act 1917); and
(b) may, if it appears to the relevant review authority that the agency has failed to properly sort or compile documents relevant to the review or to undertake consultations relevant to the review that should have been undertaken by the agency—
(i) require the agency to sort or compile the documents or undertake the consultations; or
(ii) require officers of the agency to attend at a time and place specified by the relevant review authority for the purpose of sorting and compiling the documents or undertaking the consultations; and
(c) may—
(i) try to effect a settlement between the participants to a review at any time during the review; and
(ii) at the request of the agency, suspend proceedings under this section at any time to allow an opportunity for a settlement to be negotiated.”
The external review for ss39(5) FOI Act must relate to a particular or certain subject matter. The subject matter is the request in respect of which the decision is made and upon which the review is sought. The decision made must operate according to the limits on the power of the review authority (viz ss39(13) FOI Act).
The review provision (s39(5) FOI Act) does not actually or impliedly preserve to the Ombudsman the power to embark upon a review of a decision not yet made: that is, to usurp to the Ombudsman the power to increase the scope of the review to encompass a decision about access to documents not yet sought and about which no decision has been made.
Although it may readily be understood that undue technicality in respect of the decision made and under review is not the hallmark of Part 5 Division 1 of the FOI Act, it must also be emphasised that this is an administrative process. That being so, and recalling that the FOI Act gives the right of access to documents not generally or ordinarily in the public domain the issue of proper process assumes importance. It is my view that the Ombudsman is not free to review other material outside of the issue under review in an enquiry about a decision not yet made.
Whatever arguments may be put about practicality and eschewing undue technicality, in my opinion those arguments do not support the extension of the practical operation of an essentially administrative function. Put as practically as possible, the legislation does not appear to contemplate a review of a decision that has not yet been made. One question for me is to identify the process undertaken here as it occurred.
It is necessary then to thoroughly review the factual chronology as it developed in this case.
A factual chronology
The evidence before the Court[29] is an affidavit of Lauren Hewitt sworn 26 October 2012 together with seven exhibits to that affidavit. It is appropriate that I summarise the content of the affidavit in short form. Ms Hewitt was the person who was the Freedom of Information Officer in charge of the requests from the respondent. There was no cross examination of Ms Hewitt.
[29] Exhibit A1.
The relevant chronology based upon that affidavit (and including, where appropriate, a summary of the content of some paragraphs of it) is as follows:-
1. On 25 July 2011 the respondent sought access to certain documents under the FOI Act namely: “all reports and correspondence received by the Officer of the Minister for Families and Communities from the Child Death and Serious Injury Committee from 2008 to present”.
2. The Child Death and Serious Injury Review Committee (the Committee) was established under the Children’s Protection Act to review cases in which children die or suffer serious injury with a view to identifying legislative or administrative means for preventing similar cases of death or serious injury in the future and to make and monitor the implementation of recommendations for avoiding preventable child death or serious injury. The Committee reports periodically to the Minister and its annual report must be tabled in Parliament under s52W of the Children’s Protection Act.
3. The request covered approximately 60 files in the Minister’s office. Two questions arose: whether those documents allegedly fell within the purview of s52X of the Children’s Protection Act, and whether those documents which may be exempt by virtue of the operation of Schedule 1 to the FOI Act? That in turn would lead to the question of redaction of materials. Further and in any event, reviews of cases by the Committee would invariably make reference to information about the cases provided to the Committee by an employee of the Committee and revelation of that material would be proscribed by s52X Children’s Protection Act (CPA).
4. After being notified of the potential cost of the work, the respondent narrowed the scope of the application for: “all in-depth reports and letters of transmittal provided to the Minister for Families and Communities by the Child Death and Serious Injury Committee for the period 2008 to present, excluding the names in the report”.
5. Ms Hewitt alleges that a removal of names would not address the question arising under s52X CPA and the files would continue to contain in any event highly personal and confidential material from which individuals could be identified. [This matter was not put in issue by the respondent].
6. On 10 August 2011 the accredited FOI Officer determined to refuse access to the documents. Reliance was placed upon s58 CPA[30] together with Clause 12 of Schedule 1 of the FOI Act and s52X of the CPA.
[30] 58—Duty to maintain confidentiality
7. An internal review under s38 FOI Act was requested and was conducted and it confirmed the original determination. On 26 August 2011 the applicant appealed to the Ombudsman for external review under s39 FOI Act.
8. The Ombudsman convened a meeting on 16 November 2011 whereat it was identified that in-depth reports were the detailed reports/summaries prepared at the end of an investigation. This is what the respondent sought and this was to be confirmed by the respondent. In accordance with the Ombudsman’s direction the agency provided a schedule of documents on or about 30 September 2011 in accordance with the amended scope of documents sought, which amendment occurred on 27 July 2011 (my emphasis).
9. On 26 September 2011 the Ombudsman gave provisional views about the operation of the provision of the two Acts and on 7 October 2011 the agency responded to the Ombudsman’s provisional views.
10. Following the failure by the respondent to confirm the scope of documents sought, by email of 28 October 2011 from the Ombudsman to the parties, the Ombudsman identified confusion about the scope of the application, the meaning of the term “in-depth reports” and confirmed that this expression meant “in-depth reviews/summaries prepared at the completion of an investigation” (viz: paragraph 8 above).
11. Then, on 31 October 2011 the applicant further changed and expanded the scope of the application. This application was not the subject of a decision by the agency or by the Minister on internal review. The documents answering the scope as narrowed on 27 July 2011 were those documents which were presented to the Ombudsman and in respect of which the Ombudsman expressed his provisional views on 26 September 2011.
12. The agency objected to the Ombudsman allowing the applicant to redefine the scope a further time because it was not the subject of any decision by the agency or any review, but the Ombudsman allowed the scope to be enlarged to include the following:
“all reports sent to the Minister by the Child Death and Serious Injury Review Committee and the letters that accompany those reports from 2008 until 25 July 2011. This includes reports generated at the completion of a review under Part 7C of the Children’s Protection Act (in-depth review summaries) as well as any other reports and accompanying letters from 2008 until 25 July 2011”
13. After handing down a provisional determination on 20 April 2012, the Ombudsman handed down an unchanged final determination on 18 June 2012.
14. The reasons of the Ombudsman are set out in paragraphs 43, 44, 46 and 47 of his final determination and those paragraphs read as follows:
“[43] I have considered the contents of the documents, in light of my views above. There is considerable information in the documents which concerns individual cases and which has been disclosed to the Committee (or a person employed (or formerly employed) to assist the Committee), and therefore is not liable to disclosure under the FOI Act under section 52X(1) of the Children’s Protection Act.
[44] In the alternative, this information may be considered to be ‘confidential information’ within the meaning of section 52X(2) of the Children’s Protection Act; and its disclosure under the FOI Act would constitute an offence. Clause 12(1) exemption is therefore applicable. Section 58(1) of the Children’s Protection Act has little role to play in considering the documents, as sections 52X(1) and (2) offer broad protection of information from disclosure, including personal information.
[46] To the extent set out above and under section 39(11) of the Act, I vary the determination of the agency.
[47] Further to its obligations under section 20(4) of the FOI Act, the agency must give the applicant access to a copy of each of the documents from which exempt information or information that is not liable to disclosure under the FOI Act, has been deleted. Rather than describe this information and for ease of reference, I have highlighted the relevant information in copies of the documents which I provided to the agency with my provisional determination.”
I refer to paragraphs numbered [44], [46] and [47] above. It is a little difficult to comprehend those paragraphs in light of the fact that the Ombudsman accepted that information in the relevant documents is covered by s52X CPA.
A question may be postulated: if a piece of information falls within the prohibition set out in s52X(1) and (2) CPA, how may it be said that this information and these documents fall within the operation of s20(4) FOI Act and redaction will apply. There appears to have been a presumption made by the Ombudsman concerning the interrelationship and connection between the two provisions in the different Acts. In part, the respondent seeks to defend this presumption. That issue is at the heart of this appeal.
The matters deposed to by the appellant appear to contemplate two types of documents: those covered by s52X CPA and those that are exempt for Schedule 1 FOI Act. The logical difficulty with this approach is that, as will be seen below, ss52X(2) CPA prevents any person disclosing the confidential information protected under ss52X(1) CPA (c.f. Schedule 1-12 (1) of the FOI Act).
The obligation of the Committee is to gather and report on that confidential information so gathered. The Committee is required to report to the Minister on the performance of its statutory functions as required by the Minister. As the respondent already has access to the reports provided to Parliament under ss52W(2) and (3) CPA, the material sought by the respondent concerns ss52W(1) reports and any other material provided to the Minister. Inferentially, by its very nature these reports and materials contain confidential information.
The entity from whom the application for leave to appeal is brought has seen and given consideration to the content of these documents whereas I have not. On one view, that is consistent with the approach of the appellant that because of the operation of ss52X(1) CPA, it is not necessary to do so (implicitly at least). No submission about the operation of ss41(1) and (2) FOI Act was put to me in this matter.
For present purposes, I am satisfied that I am in a position to give consideration to the question for decision here based upon the evidence tendered in this application and the reasons provided by the Ombudsman. In particular, I refer to paragraphs [43]-[47] of the reasons of the Ombudsman that I have reproduced above. I will refer to these matters in detail later in these reasons but it is sufficient currently for me to say that the Ombudsman’s reasons, at the least, disclose two very important matters. First that what is contained in the reports is confidential for the purposes of Part 7C CPA and second, that without more the Ombudsman has taken the view that a process of redaction of material may take place (viz ss20(1) and (4) of the FOI Act). These are significant matters.
In order to consider these two matters properly and to understand the consequences of that process of reasoning it is necessary to give thorough consideration to the statutory scheme under which the information is gathered, held, considered and interpreted and then reported upon.
The Children’s Protection Act 1993
The Children’s Protection Act 1993 (CPA) is an Act to provide for the care and protection of children and for other purposes. Part 7C of the Act provides for the appointment of a Child Death and Serious Injury Review Committee (the Committee) by the Minister. The Committee is established under s52N of the Act and the provisions regulating the terms of office and procedures of the Committee as well as its staff and resources are contained within the provisions of Division 1 of Part 7C CPA.
Division 2 of Part 7C CPA provides for the functions and powers of the Committee. S52S sets out the functions of the Committee. It is necessary for present discussion to set out the whole of that provision. It reads as follows:-
“52S—Functions of the Committee
(1) The Committee's principal functions are—
(a) to review cases in which children die or suffer serious injury with a view to identifying legislative or administrative means of preventing similar cases of death or serious injury in the future; and
(b) to make, and monitor the implementation of, recommendations for avoiding preventable child death or serious injury.
(2) A review may be carried out if—
(a) the incident resulting in the child's death or serious injury occurred in the State; or
(b) the child was, at the time of the death or serious injury, ordinarily resident in the State.
(3) The Committee should review a case of child death or serious injury if—
(a) the death or serious injury was due to abuse or neglect or there are grounds to suspect that the death or serious injury may be due to abuse or neglect; or
(b) there are grounds to believe that the death or serious injury might have been prevented by some kind of systemic change; or
(c) there had been, within 3 years before the incident resulting in the death or serious injury, a notification to the Department of suspected abuse or neglect of the child, or a member of the child's family; or
(d) the child was, at the time of death or serious injury, under the guardianship, or in the custody, of the Minister or was in custody or detention or in the care of a government agency; or
(e) the case has been referred to the Committee by the State Coroner.
(4) The Committee is not, however, to review a case of child death or serious injury unless there is no risk that the review would compromise an ongoing criminal investigation of the case and—
(a) a coronial inquiry has been completed; or
(b) the State Coroner requests the Committee to carry out a review; or
(c) the State Coroner indicates that there is no present intention to carry out a coronial inquiry.
(5) A review is, as a general rule, carried out by examination of coronial and other records and reports relevant to the case under review.
(6) The purpose of the Committee's review is—
(a) to identify trends and patterns in cases of child death and serious injury; and
(b) to review policies, practices and procedures designed to prevent child death or serious injury (and, in particular, those implemented on the Committee's recommendation); and
(c) to provide an objective basis for the Committee's recommendations.
(7) The Committee is not to make any finding about civil or criminal liability.”
There are two primary functions of the Committee: to review cases in which children die or suffer serious injury. That is to be done with the view to identifying any legislative or administrative means for preventing similar cases of death or injury in the future. These “means” will be the subject of reports and recommendations to the Minister. It will be apparent that there will be periods of time over which such matters will develop: in the ordinary course of experience, recommendations are made to Ministers after a process of identification, consideration and internal review (that will survive a process of critical review and of internal challenges) and then delivery. In all of these steps, at the forefront of considerations is that the issues must be kept confidential.
The second primary function is then to make and monitor the implementation of recommendations for avoiding preventable child deaths or serious injuries.
Subsections 52S(2) and (3) provide for when a review may be carried out by the Committee and when the Committee should review a case of child death or serious injury. A reading of the sub-subparagraphs (a)-(e) inclusive of ss52S(3) disclose the extraordinarily sensitive nature of the matters under consideration by the Committee. Those matters are inherently confidential for a number of reasons. They concern children; they concern the death or serious injury of children; they concern a review of coronial records and reports relevant to the death or serious injury of children and they concern policies, practices and procedures designed to prevent child deaths or serious injuries.
It requires no particular foresight to understand the importance of the work of the Committee and the importance of that work to the Minister. It matters not whether it may be argued that the manifestation of the treatment of some children in society is an epiphany of a modern development because of changes in the structure of our society, or conversely, that it is only a revelation of a historical and unchanged narrative. The important feature here is that the necessity for the work of the Committee, and thus its existence, is now legislatively recognised. Implicit in that development is the recognition of the need for constant vigilance to protect children in our society who are properly recognised as its most vulnerable members.
Thus it may be said that there is an appropriately increased obligation of confidence in respect of the material gathered by the Committee because the intrinsically private and important nature of the task.
Consistent with that position, s52T CPA provides that the Committee will maintain a database of child deaths and serious injuries and their circumstances and causes. This is also quite obviously a very sensitive record. That sensitivity is reflected in the operation of ss52T(2) CPA which prevents access to the database except by a limited number of persons or entities.
Also consistent with that position is the breadth of sources from which the Committee may gather its information. S52U CPA permits the Committee to enter into arrangements with agencies or instrumentalities for the gathering of information about child deaths and serious injuries. Subsection 52U(2) CPA provides that any agency or instrumentality of Government may comply with such an arrangement despite any statutory provision against the disclosure of confidential information or any rule of the common law or equity to the same effect.
As a corollary of the protections provided by s52U CPA, s52V CPA permits a Committee or a person authorised by the Committee to conduct a review of a case of child death or serious injury and to request any person who may be in a position to do so to produce documents, to allow access to documents or other information or to provide information in writing that may be relevant to that review. A failure to comply with such a request constitutes a criminal offence and attracts a penalty. The only exclusions to that position are a parent, relative or foster parent of the child, if the information sought would tend to incriminate the person receiving the request, if the information is protected by legal professional privilege or the information is subject to the operation of Part 7 or 8 of the Health Care Act 2008. Further protections are built into s52V CPA because under ss52V(4), a person does not, by complying with the request under ss52V(1) CPA, contravene any statutory prohibition against the disclosure of confidential information, or any rule of the common law or equity, or any principle of professional ethics.
The importance of the work of the Committee
All of these provisions underscore the seriousness of the issues dealt with by the Committee, the very high level of confidentiality with which the information obtained by the Committee must be treated and the sensitivity surrounding that information. Persons providing information to the Committee are protected from sanction or censure as a result of having complied with a request of the Committee made in accordance with the terms of the CPA. On any view, these are appropriate measures having regard to the sensitivity of the issues under consideration because children are regarded generally by the law to be vulnerable members of our society who require protection. In my view, this approach is reflected in the general philosophical approach of Parliament that may be garnered by a reading of the CPA as a whole. That approach may be summarised thus: the protection of children is an essential obligation of our society, and that obligation is to be fulfilled by a holistic approach (and not by some process of exclusion or by exception).
In my opinion, this in turn leads to a necessity on the part of the Courts to read general terms used in the CPA broadly and not in some confined way. In my view a confined or narrow reading of the legislation is generally not consistent with Parliament’s apparent intention and the general spirit of the Act according to its terms. Of course it is also axiomatic that in so doing a Court would not embark upon some artificial extension of the reach of the CPA.
The reports of the Committee
The Committee’s reporting functions are set out in s52W CPA. The Committee must report periodically to the Minister (as required by the Minister) on the performance of its statutory functions.
There is no limit upon the Minister about how often a request may be made for a report from the Committee under s52W(1). Also, it appears that the expressions “…its statutory functions…” is a broad form of expression that is deliberately used. It covers a very wide range of possibilities and with an equally varying level of detail (as requested by the Minister). The constant is the functions of the Committee and its responsibilities under Part 7C CPA.
Also the Committee must on or before 31 October in each year report to the Minister on the performance of its statutory function. The Minister must within 6 days after receiving that report (being the annual report under s52W(2)) have copies of the report lain before both Houses of Parliament.[31] Thus it is to be seen that there is a responsibility for the relevant Minister to table a report before Parliament delivered to the Minister by the Committee.
[31] Section 52W(3).
The juxtaposition of the two reporting obligations suggests a number of possible considerations. The first that the report under s52W(2) will be no different in content from but would be a report for a whole years’ activity compared to a s52W(1) report. The second is that because of the connection between a Minister’s report and the report under s52W(1) such report is always likely to be more specific because of its narrower forms.
There is a third: there is no restriction upon how many times and in respect of what the Committee may report to the Minister. Section 52W sets out reporting obligations but it does not set an upper limit on the times that the Committee may report to or communicate to the Minister about the issues that arise in their work. Implicitly, the matters raised with the Minister, in communications outside of the s52WCPA reports will have a certain urgency about them arising from the fact of the communication itself, but I need to make no finding about that matter. It is sufficient to say that any report to the Minister initiated by the Committee will involve the confidential information referred to in Part 7C CPA.
One of the consistent features of Part 7C Division 2 is that the Committee is involved in the process of gathering information about child deaths and serious injuries. That phraseology, i.e. “…information about child deaths and serious injuries…” is used consistently throughout the Part. It is an expression of general and broad meaning and does not tend, in any way and particularly in context, to be confined in the types of information that might be obtained, gathered and kept by the Committee. Its ordinary meaning would tend to extend to any matter which the Committee might think appropriate or necessary to obtain in order to carry out its statutory tasks. That approach is again consistent with the broad basis of approach adumbrated within the Part itself that I have addressed earlier in these reasons.
The Children’s Protection Act confidentiality provisions
Division 3 of Part 7C of the CPA contains the confidentiality provision relating to the work of the Committee. It is in specific terms and it is appropriate that I set its contents out hereunder.
Section 52X reads as follows:-
“52X—Confidentiality of information
(1) Information about individual cases disclosed to the Committee or a person employed (or formerly employed) to assist the Committee is to be kept confidential and is not liable to disclosure under the Freedom of Information Act 1991.
(2) A member of the Committee, or a person who has been employed in duties related to the functions of the Committee, must not disclose confidential information obtained as a result of his or her official position.
Maximum penalty: $10 000.
(3) However—
(a) information about possible criminal offences must be reported by the Committee to the Commissioner of Police; and
(b) if the Committee comes into possession of information suggesting that a child may be at risk of abuse or neglect, the Committee must pass the information on to the appropriate authorities; and
(c) information relevant to a coronial inquiry or possible coronial inquiry is to be passed on to the State Coroner.”
Consistent with the drafting method adopted in the CPA, s52X contains a prohibition, a criminal sanction provision and then potential exclusions in particular circumstances.
Perhaps unusually, the exclusion provision carries some importance, but only in a general way. The first, requiring the reporting of information about possible criminal offences to the Police, is again consistent with the broad drafting approach used by Parliament. It requires very little by way of a value judgment of the Committee: it requires the reporting of information about possible criminal offences (my emphasis). This arrangement empowers the Committee to leave the question of value judgments on the matters so referred to the prosecuting authority. The important issue is that the concept of information is not limited. In that sense, it will include what, at first blush, may appear to be a disparate and so unconnected piece of information but when matched with pieces of information held by the Committee, it will or may have a particular and quite unpredictable relevance.
The same general sentiments may be expressed about the second exclusion: “information suggesting that a child may be at risk of abuse or neglect…” (my emphasis). The term “abuse” or “neglect” is defined in the dictionary provision of the CPA under s6 as follows:-
“6—Interpretation
(1) In this Act, unless the contrary intention appears—
abuse or neglect, in relation to a child, means—
(a) sexual abuse of the child; or
(b)physical or emotional abuse of the child, or neglect of the child, to the extent that—
(i)the child has suffered, or is likely to suffer, physical or psychological injury detrimental to the child's wellbeing; or
(ii) the child's physical or psychological development is in jeopardy,
and abused or neglected has a corresponding meaning.”
Consistent with the themes that I have previously developed, the definition is very broad and is not intended to be read down. It includes references to forms of abuse, or neglect of a child that may cause physical or psychological injury detrimental to the child’s wellbeing. In my view, these are matters within the specialist knowledge and understanding of the Committee. The members of the Committee are the persons who will be fully cognisant of the relevant facts as well as the interconnection between those facts and any other available material in the way previously foreshadowed by me. These are all matters that are ordinarily best left to the specialist knowledge of the members of the Committee who are charged, under the CPA, with the fulfilment of the statutory obligations that are established in the CPA.
Also consistent with previous drafting methods, the confidentiality of information provision is expressed broadly. It refers to “information about individual cases disclosed to the Committee… to assist the Committee…” It does not confine itself to any particular type of material, written or otherwise. It is a broad form of expression and, in my view, is to be interpreted broadly. Consistent with that approach, “information” must be given its ordinary meanings.
The Oxford English Dictionary, 2nd edition defines “information” as follows:-
“1. (a) The action of informing (in the sense of a verb) formation or moulding of the mind or character, training, instruction, teaching; communication of instructive knowledge.
2. The action of informing (in the sense of the verb) communication of the knowledge or “news” of some fact or occurrence, the action of telling or fact of being told of something.
3. (a) Knowledge communicated concerning some particular fact, subject or events; that of which one is apprised or told; intelligence, news.
(b) An item of information or intelligence, a fact or circumstance of which one is told, an account, relation narrative of (of something).”
In the Macquarie Dictionary, “information” is relevantly defined in much the same way as follows:-
“Information
1. The act of informing; training, instruction; communication of instructive knowledge
2. The action of telling or fact of being told of something
3. That of which one is apprised or told; intelligence, news
4. The action of informing against charging an accused…”
In my opinion, having regard to the operation of the CPA as a whole, the definition of the term “information” as set out in the Oxford English Dictionary at subparagraphs 3.a and 3.b is apposite. This is also evident from the apparent intention which is disclosed in the “broad” drafting method used by Parliament. The expression “information” here at the least intentionally includes: “knowledge communicated concerning some particular fact, subject or event”. Implicitly at least, the fulfilment of the functions of the Committee include the gathering of knowledge, communicated concerning some fact, subject or event, such as the maintenance of databases or reviews based on cases reported to the Committee and on reviews.
Those matters obviously enough are connected with the concept of “information” which is part of the charter of the Committee. Similarly the same considerations apply in respect of an item of intelligence, or fact or circumstance of which one is told: in my view, it is entirely consistent with the fulfilment by the Committee of its charter to be very active in the gathering of this material.
It follows that in giving consideration to the meaning of the word “information” in the opening phrase of s52X(1), it would not be appropriate to read that expression in some narrow or pedantic way. Rather the term “information” must be read broadly to include not only obviously or implicitly connected facts, events or circumstances but also what may at first appear to be unconnected facts or circumstances which on a proper consideration of all available information, are required to be viewed differently because of their capacity to inform other relevant matters. This in turn also requires a review of those facts, matters, things, subjects or events falling within the interstices of those connected or unconnected matters.
The information referred to must be about individual cases disclosed (to the Committee). These words “information… disclosed…” are also to be read broadly and those matters disclosed will include matters that are revealed to the Committee. This can take place by communication of information directly as well as by a combination of the reconsideration of the material already in the possession of the Committee and that material communicated to the Committee as a disclosure at another time. This notion is not a revelation, and really it is not different to the operation of any Committee such as this charged with such important functions. The Committee logically has the capacity to gather information and retain it as part of its “intrinsic memory” so that such information may become part of the Committee’s “store” of information that may be utilised in respect of other cases. The selection of the members of the Committee implicitly recognises the accumulation of wisdom and knowledge about the task before the Committee. This is part of the skills set that the members bring to the Committee as part of their experiences.
In its submissions, the appellant points to the breadth of the coverage of the words in s52X(1). Particular reference is made to the words “s52X(1) information about individual cases disclosed to the committee…”
The appellant argues that the breadth of those words is informed by the task of the Committee and the ways it will operate and the nature of the report. The task undertaken requires that the reports contain considerable information. The information contained in the reports is informed by the purpose for which the reports are prepared. I accept that submission for the reasons that I have already outlined.
In answer to the respondent’s assertion that redacting is possible in such reports and is a function of the operation of s52X because redacting will ensure that there is no disclosure of information about individual cases provided, the appellant points to the fact that it is an impossible exercise to expurgate the reports so that all of the necessary material is removed. In my view, if s52X CPA has application, there is an absolute and complete prohibition against disclosure under the FOI Act or on any other basis of any information, however it is recorded, that is confidential and is to be kept confidential. Merely because s20(1) and (4) FOI Act may have a potential application does not mean that redaction should or must occur. The same consideration arises in respect of each question: is the document prohibited from production on any basis because of the confidentiality issues arising under s52X(1) (FOI Act prohibition) or s52X(2) (FOI Act confidential information).
These considerations in turn raise again the question of the content of documents seen by the Ombudsman but which did not form part of the evidence tendered before the Court. I have formed the view that to advocate a process of redaction of confidential material (as he assesses the position) has a number of consequences. The first and most obvious is that the documents contain confidential information for Part 7C CPA. The second is that, without more, the Ombudsman is not in a position to know or to make and so to calculate the importance of the connections between what he does consider confidential and what he does not consider confidential because he does not possess the background or “intrinsic memory” of the Committee. The Ombudsman cannot know what falls into the interstices of information produced in the document. The third is that merely to advocate a process of redaction does not recognise that at some point in the consideration, a “critical mass” point is reached where, if properly redacted, the document has neither meaning nor relevance. It may become misleading but that assessment is for another day.
The importance of this third aspect is that the matter turns on degrees of redaction. In the application of principle, that is a quite unsatisfactory result and in my opinion is anathema to the statutory scheme of Part 7C CPA.
This was the thrust of the appellant’s criticisms of the approach of the Ombudsman. It is not permissible to create some intermediate position whereby the operation of s52X(1) is to be circumscribed by a process of redaction.
Paragraph 47 of the determination of the Ombudsman dated 18 June 2012 reads as follows:-
“Further to its obligations under s20(4) of the FOI Act, the agency must give the applicant access to a copy of each of the documents from which exempt information or information that is not liable to disclosure under the FOI Act has been deleted. Rather than describe this information and for ease of reference, I have highlighted the relevant information in copies of the documents which I provided to the agency with my provision of determination.”
The first part of the phraseology “…each of the documents from which exempt information... has been deleted” appears to accord with the meaning of s20 FOI Act and in particular the operation of ss20(4) of that Act. However, the later phraseology of “…or information that is not liable to disclosure under the FOI Act (has been deleted)…” is not a matter within the operation of ss20(1) and (4) of the FOI Act. I agree with the submission that, by this approach, the Ombudsman appears to be attempting to extend the operation of s20(4) FOI Act not only to exempt documents but also to documents which are completely beyond the reach of the legislation such as by virtue of ss52X(1) CPA. In my opinion, there is no power in the Ombudsman to take this approach. As I have previously set out, this approach attempts to bring all excluded documents (such as those that fall within the coverage of s52X(1)) within a general category of exempt documents. The approach seems to assume that because a document is both excluded but also exempt, it may be dealt with under the rubric of an exempt documents. In my view, the Ombudsman has fallen into error in adopting this approach.
In my opinion, where ss20(4) makes reference to a document, it is not referring generally to a document whether exempt or not or whether it is excluded from the operation of the FOI Act. On a proper reading of ss20(1) and ss20(4), the redaction that must occur is in respect of a document which is an exempt document for subparagraph 20(1)(a) FOI Act. That is, ss20(4) does not operate to give access generally to all excluded documents so that the process of redaction might take place in respect of all documents (irrespective of whether those documents are excluded from and do not fall within the coverage of the FOI Act). The only documents that fall into that category are documents that may (only) be described as exempt documents. Documents that are excluded from the operation of the FOI Act do not necessarily fall within the operation of ss20(4) merely because they are also exempt documents. To that extent, paragraph 47 of the reasons for decisions delivered by the Ombudsman is incorrect as a matter of law.
The submissions put on behalf of Ms Chapman are that the effect of ss52X(1) CPA is to adopt s12 and s20 FOI Act and Clause 12 of the first Schedule FOI Act. This argument largely mirrored the approach taken by the Ombudsman in his decision. The relevant approach, on Ms Chapman’s argument, is that the operation of s52X may be seen in the context of the operation of the FOI Act. Merely because some information may be identified as falling within ss52X(1) does not necessarily or at all mean that ss20(1) and (4) FOI Act have no work to do. The two things may actively coincide. Thus what may be left of a document after excision should be produced under the general obligation set out in the FOI Act, once the request has been made.
The argument developed in this way: in paragraph 43 of the reasons, the Ombudsman has accepted that in the documents delivered to the Committee under the CPA, there is a considerable amount of information concerning individual cases. The Ombudsman has accepted that this information is not liable to disclosure under the FOI Act because of the operation of ss52X(1) of that Act. The confidentiality of that information under ss52X(2) of the CPA is also recognised. This is because disclosure of that information would constitute an offence. The reports that are sought are those that inform the Minister on the performance of the Committee’s statutory function outside of the reports laid before Parliament under s52W(2) CPA. I have already rehearsed in detail the functions of the Committee (s52S-s52V CPA) and I have previously identified the extraordinary sensitivity of those matters and the importance of the intermediate information possessed by the Committee.
It will not be possible for the “untrained eye” (whether the Court or the Ombudsman) to necessarily see the importance of the information provided in all requested reports including in those delivered to the Minister under ss52W(1) CPA. This is only emphasised when it is recalled that the Committee has coercive powers under Part 7C CPA. This in my view places the Committee in a very distinct position and also accentuates the importance of the judgment of the Committee if it forms the view that the report, both in its contents and its interstices, contains the confidential information covered under both ss52X(1) and (2) CPA.
For those reasons, it is my view that the argument of Ms Chapman and also the process of reasoning of the Ombudsman is in error. Parliament has very deliberately quarantined the confidential material covered under Part 7C CPA from the reach of the FOI Act. I am therefore unable to accept the argument of Ms Chapman.
In paragraph [44] of the reasons and after discussing s52X(2) the Ombudsman says:-
“Clause 12(1) exemption is therefore applicable.”
The reference to Clause 12(1) is a reference to Clause 12 of the first Schedule. Clause 12, with its heading reads as follows:-
“12 documents the subject of secrecy provisions
1. A document is an exempt document if it contains matters the disclosure of which would constitute an offence against an Act.”
It would be an offence to make disclosure of the confidential information obtained by the Committee under ss52X(1). That is information about individual cases disclosed to the Committee.
The approach of the Ombudsman in respect of Clause 12, although correctly reciting the effect of the secrecy provision within Clause 12 of Schedule 1 of the FOI Act fails to identify the meaning and the breadth of the prohibition contained within ss52X(1) CPA. That is, similar to the first point that I have discussed above, the issue of exempt document or not, does not arise in respect of matters falling within the operation of ss52X(1) CPA because the effect of the operation of that provision is to exclude any right to seek disclosure or any obligation to disclose, under the FOI Act, any information about individual cases disclosed to the Committee.
I agree with the submissions of the appellant that this approach fails to properly comprehend that the exemption described in Clause 12(1) of Schedule 1 FOI Act does not draw into the coverage of the FOI Act documents which are otherwise not liable to disclosure under the FOI Act because of a specific prohibition within the relevant legislation. In my opinion, ss52X(1) CPA does not create a category of exempt documents. It creates a bar to disclosure of information about individual cases disclosed to the Committee. For the reasons that I have set out above, the word “information” in s52X(1) is to be construed broadly and so it will include documentary and viva voce information. The “outer limit” of operation is that the “information” is about “…individual cases disclosed to the Committee…” under the CPA. Therefore the documents are barred from production under s52X because they contain information about individual cases disclosed to the Committee. They are not documents which fall within the purview of Clause 12 of Schedule 1 FOI Act.
The same formula of words is used in other State legislation of a similar type.[33] Conversely, there are other Acts which contemplate exempt documents under the terms of their provisions. A case in point is the Gene Technology Act 2001 (G.T. Act). Under Division 3 of Part 12 of the G.T. Act, there are protections for confidential commercial information. There is a right to apply for a declaration that specific information is confidential and commercial[34] and a regulator may declare that information is confidential commercial information.[35] That declaration may be revoked.[36]
[33] Criminal Investigations (Covert Operations) Act s46; Terrorism Surface Transport Security Act s11.
[34] S184.
[35] S185.
[36] S186.
Section 187 G.T. Act provides that confidential information must not be disclosed by any person who has the confidential information and who has it only because of performing duties or functions under the Act or knows of the information is confidential commercial information.[37] The only time that such person may disclose the information is to a State agency, to a Commonwealth of Australia authority or to the Gene Technology Advisory Committee, or by order of the Court or with the consent of the person who owns the confidential information.[38] This is an offence provision. There are mirror provisions within ss187(2) in respect of a person who has the confidential commercial information and similarly this is an offence provision.
[37] S187(1)(a)(c), (1)(b)(c).
[38] S187(1)(d)(e)(f).
Importantly, ss187(3) and (5) of the GT Act reads as follows:-
“s187
(3) For the purposes of the Freedom of Information Act 1991, a document containing information to which subsection (1) or (2) applies is an exempt document under that Act.
(5) This section has effect despite anything to the contrary in the Freedom of Information Act 1991.”
It is apparent from a review of and comparison of the approach taken by Parliament in these provisions, that on the one hand (in ss52X(1) CPA), there is a complete exclusion of the operation of the FOI Act in respect of information whereas, on other occasions (for example the G.T. Act), Parliament has seen fit to declare documents containing information to which the relevant subsections apply to be exempt documents and has excluded the operation of the FOI Act, insofar as it may apply to the contrary.
In my opinion, this difference of approach is both understandable and explicable. Parliament has apparently deliberately taken different approaches in respect of documents which may fall within the category of an exempt document for the purposes of the FOI Act on the one hand, and those documents which do not fall within the purview or operation of that Act. It is explicable because of the nature and sensitivity of the information contained in any document that Parliament has decided must not be disclosed whether under the FOI Act or on any other basis. Parliament has recognised that there are matters of such seriousness and of such confidentiality that under no circumstances may the information in documents disclosed to bodies established by Parliament for particular purposes be disclosed for any reason. It is difficult to think of a more appropriate circumstance for such an absolute prohibition that in respect of legislation dealing with the protection of children. It is to be assumed that Parliament had a particular result in mind when the form of exclusion reflected in ss52X(1) CPA was written.
It is not difficult to test the correctness of that proposition. The wording of ss52X(1) and the inclusion of the words: “…is not liable to disclosure under the Freedom of Information Act 1991” creates more than a category of exempt documents which already exists. If it were otherwise, Parliament may only have used the noun “documents” instead of the noun “information” at the commencement of the subsection. By the use of the term “information”, a number of things follow. The information is not merely reflected in the content of particular papers or documents. The information may be partly reflected in papers and documents and partly in the information possessed by the members of the Committee that may inform or elucidate the content of the documents or papers. It may be reflected in other unrecorded information in the possession of the Committee. No doubt there are other possibilities.
These are all examples of the reasons why Parliament has used broad forms of expressions by the use of the word “information” so that what is excluded is more than mere documents that fall within the categories of exempt documents (that already exist). The first and most obvious reason is that, if that were so, the words themselves would be entirely otiose. They would serve no purpose at all.
The second is that the words themselves do not, by their ordinary reading or any extended meaning, create some category of merely exempt documents. One only has to have regard to the approach of Parliament in the G.T. Act to identify how Parliament may deal with exempt documents.
The third and perhaps least obvious reason is that if ss52X(1) created a range of exempt documents and therefore there was reposed in the Minister a discretionary power to refuse (or not) to deliver them up, the exercise of that discretion may expose the decision of the Minister to review. In my view, that is not a process envisaged by the wording of ss52X(1) CPA.
Ms Chapman also directed my attention to s52S CPA, the functions of the Committee. I have earlier in these reasons surveyed the content of that provision. Ms Chapman’s submission was that there was a public benefit and importance in the work of the Committee under ss52S(1)-(6) CPA inclusive, particularly having regard to subparagraph 52S(1)(b) CPA. Ms Chapman submitted that it is important to be able to analyse material provided to the Committee in assessing the Committee’s suggestions and its monitoring activities. All of these matters concern cases in which children die or suffer serious injury and the requested information is pertinent so as to allow Ms Chapman to be in a position to be properly informed and so be in a position to form a view to identifying legislative or administrative means of preventing similar cases of death or serious injury in the future. Thus Ms Chapman argues that there is a public interest in such information being accessible through the FOI Act.
Similarly, Ms Chapman submits that Government resources are being used in the process of the operation of the Committee, recommendations are made by the Committee and so there is a public interest in ascertaining whether recommendations are being fulfilled, whether the Committee regards its recommendations as being fulfilled, whether adequate resources are being directed towards it and in accordance with its recommendations.[39] All of those matters are, so Ms Chapman argued, consistent with the protection of the interests of children.
[39] T35.24-31.
Ms Chapman agreed that there was some tension between her submissions in that respect and the concept of information about individual cases disclosed to the Committee under ss52X(1). Ms Chapman properly conceded that there were “grey areas” in which there may be tension between the interests of the individual and the interests of children at large. Ms Chapman argued that consistent with the processes of the FOI Act, there should be openness and accountability and speculated, for example, that if there were “recommendation after recommendation which had been ignored”, then the FOI Act is designed to enable access to be taken to information so as to uncover such conduct. There was no evidence before me to support this speculation. On one view, it would be a very peculiar result that such events could within any reasonably foreseeable scenario actually occur. At the very least, it may reasonably be assumed that in such a scenario the Committee members may act in a particular way before their term expires and also there is no presumption of circumspection about the Committee report under s52W. I am not prepared to enter into such a process of speculation.
In my view, the Committee’s reporting obligations under ss52W(2) CPA cover the matters raised by Ms Chapman. That is a distinct statutory reporting obligation in respect of the performance of the Committee’s statutory functions. It is not necessary to obtain information about individual cases disclosed to the Committee for members of Parliament to ask questions in relation to the Committee’s report.
Ms Chapman also argued that s52W CPA does not require or indeed assume disclosure of all information. That is so but that does not prevent Parliamentarians from receiving, comprehending and then questioning the Government and the relevant Minister of the Government in relation to the contents of any such reports. That is the Parliamentary process.
On the question of ss52X(1) and its operation, Ms Chapman’s criticism of the appellant’s approach was that the section is engaged by information in documents and not by the documents themselves. That is, the prohibition in s52X CPA means that it is information about individual cases which are taken outside of the Act and not documents. Ms Chapman’s response in relation to the s39 FOI redefinition of category argument was that for there to be an error of law, it would have to be the case that there was a complete abandonment of a category of documents and a purported amendment to cover a completely different category of documents where the two types of documents were not in the same area of discourse: Ms Chapman contended that this was not such a case.
On the ss52X(1) argument, the respondent submitted that the subsection does not take anything outside of the FOI Act and, as a secondary alternative argument, that the subsection does not refer to documents. It was argued that the words “…and is not liable to disclosure under the Freedom of Information Act 1991” are merely descriptive or confirmatory of the work that is otherwise done by s52X(1) and (2). The combination of ss52X(1) and (2) meant that s12 FOI Act and Clause 1 and Schedule 1 FOI Act are engaged and where disclosure constitutes an offence, the document is exempt.
I am unable to accept all of those submissions. In my view, Ms Chapman’s first submission fails to address the fact that the FOI Act 1991 refers only to documents (viz s12 FOI Act). If the term “information” in ss52X(1) does not refer to documents, there is no work for the exclusion in respect of disclosure under the FOI Act to do. It would be otiose. In my view, that argument is not sustainable.
It follows in my opinion that it is not correct to address ss52X(1) in respect of documents only by virtue of s12 FOI Act and Clause 12 Schedule 1 of the FOI Act. In my opinion, the exclusion under s52X(1) CPA does not trigger the exemption provision in s20 FOI Act.
Ms Chapman’s further argument was that the process of redaction as understood in ss20(4) was further proof of recognition by Parliament of the possibility of redacting information from documents but those documents still being disclosed under the FOI Act. Ms Chapman’s argument was that there is a distinction between information and documents. The production of documents (not information) was the province of the FOI Act, which in turn justifies the argument about redaction. The issue is resolved by the production of a document from which the relevant information has been redacted.
I am unable to accept this submission.
It fails for the same reason. It renders the words in ss52X(1) “…and is not liable to disclosure under the Freedom of Information Act 1991…” otiose because that expression refers to “information” and not documents. Thus, in my view, the word “information” should be given a broad meaning to include documents as well as all other forms of information.
I am therefore unable to accept Ms Chapman’s first argument based upon s52S CPA, s20 FOI Act, Clause 12 of Schedule 1 and Schedule 2 FOI Act or the argument under s20(1) and (4) FOI Act. In my opinion, in the drafting method used by Parliament in respect of ss52X(1) and (2) CPA, Parliament has clearly evinced an intention that the term “information about individual cases” is to be read broadly and not narrowly and that it contemplates within the meaning of that term all forms of information about individual cases and none of that information is liable to be disclosed under the FOI Act.
In my opinion there is a general prohibition against disclosure and that is only reinforced by the operation of ss52X(2) in respect of the disclosure of any confidential information obtained by any person fulfilling any particular position in a Committee.
Reference has been made in argument to the decision of Gray J in Moloney v Motor Accident Commission.[40] In this case, the plaintiff, a solicitor, sought an Order for mandamus compelling the defendant, the Motor Accident Commission, to determine an application by him made pursuant to s13 of the FOI Act. That section governs applications for access to agencies’ documents. The defendant agency, the Motor Accident Commission, alleged that it was an exempt agency, refused to comply with the application and maintained that the application was therefore not an application pursuant to s13 of the Act. The question before the Court was whether the defendant was an exempt agency within the definition of the FOI Act.
[40] [2012] SASC 170.
In his judgment, Gray J considered the operation of s12 FOI Act and whether, for the purposes of s4 FOI Act, the defendant was an agency within the meaning of the Act. Schedule 2 of the FOI Act defines the Motor Accident Commission to be an exempt agency but the question was the interpretation of “exempt agency”.
In that case, the plaintiff’s principal submission was that under a correct interpretation of Schedule 2(f) FOI Act, the “…defendant is an exempt agency only in respect of matters relating to a particular third party claim or action as distinct from such claims or actions generally.” (My emphasis).[41] Therefore, so the argument went, a claim for general documents is not a claim for any documents relating to any particular individual third party claim or action.
[41] At [12].
The defendant’s argument was that Schedule 2(f) means that the defendant was an exempt agency in respect of documents concerning any business or function of the Motor Accident Commission and so the defendant would be an exempt agency in respect of those documents. Gray J accepted the defendant’s argument. His Honour was not prepared to read-down the expression “matter” in Schedule 2(f) FOI Act and his Honour was prepared to read broadly the words in the Schedule so that agencies might be exempt “in respect of functions or classes of information specified in Schedule 2.”[42] His Honour also referred to the other agencies listed in Schedule 2. His Honour looked to the legislative history of the provision and its predecessors and the second reading speeches by the then Attorney General, the Honourable Robert Lawson[43] and his Honour accepted that due regard could be had to those speeches.[44] His Honour rejected the application.
[42] At [18].
[43] At [21].
[44] K-Generation v Liquor Licencing Court (2009) 237 CLR 501 at 521-2 per French CJ.
In argument, I expressed an unconcluded view that I was not greatly assisted by the appellant’s reference to this discussion because it focussed upon ss4(1) FOI Act, Part 4 of the Motor Vehicles Act 1959 (MVA) and the operation of Schedule 2(f) of the Act.
The Full Court of the Supreme Court of South Australia has now published its reasons on the appeal from the decision of Gray J[45]. The appeal was allowed. In order to canvass the decision properly it is necessary to reiterate some matters.
[45] [2013] SASCFC 58: (27/06/2013)
Section 4(1) FOI Act defines “agency” as follows:-
“agency means—
(a) a Minister of the Crown; or
(b) a person who holds an office established by an Act; or
(c) an administrative unit of the Public Service; or
(d) South Australia Police; or
(e) a council; or
(f) any incorporated or unincorporated body—
(i) established for a public purpose by an Act; or
(ii) established for a public purpose under an Act (other than an Act providing for the incorporation of companies or associations, co‑operatives, societies or other voluntary organisations); or
(iii) established or subject to control or direction by the Governor, a Minister of the Crown or any instrumentality or agency of the Crown or a council (whether or not established by or under an Act or an enactment); or
(g) a person or body declared by the regulations to be an agency,
but does not include an exempt agency.”
It also defines “exempt agency” as follows:-
“exempt agency means—
(b) a person or body referred to in Schedule 2 or a person or body referred to in that Schedule in respect of functions or classes of information specified in that Schedule; or
(c) an agency declared by regulation to be an exempt agency or declared by regulation to be an exempt agency in respect of functions or classes of information specified in the regulation.”
Section 12 FOI Act provides as follows:-
“12—Right of access to agencies' documents
A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act.”
Subsection 19(1) FOI Act provides as follows:-
“19—Determination of applications
(1) After considering an application for access to a document, an agency must determine—
(a) whether access to the document is to be given (either immediately or subject to deferral) or refused; and
(b) if access to the document is to be given—any charge payable in respect of the giving of access; and
(c) any charge payable for dealing with the application.”
If an “agency” is an “exempt agency” then the question arises as to the application (if any) of the FOI Act to the agency.
Schedule 2 of the FOI Act defines exempt agencies and paragraphs (f) of that Schedule reads:-
“The following are exempt agencies:
(f) the Motor Accident Commission in respect of any matter relating to a claim or action under Part 4 of the Motor Vehicles Act 1959;”
It is immediately to be seen that the exemption is not absolute and the meaning of the exemption turns on the meaning of the word “matter” in juxtaposition to the phrase of “relating to a claim or action” under Part 4 MVA 1959.
The documents requested by the appellant Mr Moloney were:-
“• its policies on the conduct of investigations following motor vehicle accidents;
• its protocols on the treatment of persons injured in such accidents;
• its policies on obtaining police reports of such accidents.
•any agreement it had made with South Australian Police on the provision of accident reports;
• any agreement it had made with a named medical provider.”
As briefly as possible, the Full Court decided that paragraph (f) in Schedule 2 FOI Act rendered the MAC “…an exempt agency in respect of any information relating to a particular claim or action, or relating to a particular claim or action under Part 4 of the MVA” (at [109] per White J).
At paragraph [61] et seq. of his judgment, White J identified Part 4 MVA and described its operation. After describing the claims and entitlements and the provision for their enforcement under Part 4 MVA (at [61]), his Honour then summarised the position as follows:-
“[62] The expression “a claim or action under Part 4 of the [MVA]” in par (f) can be understood naturally as referring to this variety of claims and actions. Each of them satisfies the description of “a claim or action” under that Part.
[63] On the other hand, the claim of an injured person against a negligent driver to which the compulsory third party insurance policy will respond would not ordinarily be understood as a claim or action under Pt 4. Such a claim does not arise under Pt 4 of the MVA, nor is it regulated by that Part. It is instead a claim recognised by the common law. The cause of action of an injured person in the ordinary case does not depend on any element of Pt 4, and it does not form any part of the material facts to be pleaded by a plaintiff in such cases. When injured persons seek damages from negligent drivers, the claim made under Pt 4 is that of the driver to the insurer for indemnity in respect of the liability.”
At [66] White J summarised the position as follows:-
“[66] The terminology used in Pt 4 of the MVA does not, of course, control the meaning of a term used in the FOI Act, but given the FOI Act’s reference to Pt 4 of the MVA, it is appropriate to have regard to the kinds of claims and actions contemplated by Pt 4, and to the meaning which it gives to the cognate expression.”
At [44] Kourakis CJ held as follows:-
“[44] After evaluating the competing interpretative considerations to which I have referred, I would hold that matter means information and that information relates to a claim or claims if it was obtained or generated in the management of a particular claim. General policies and arrangements of the kind sought by the appellant are made to guide and regulate the MAC’s claims management business but they are not generated in the handling of a particular claim or claims. In effect, it is the claims file which is exempted, but what is or is not in the claims file cannot, of course, be conclusively determined by the filing practices of the MAC or its agents.”
It thus may be seen that although the Full Court held that the word “matter” under Schedule 2 FOI Act was to be read in a particular way – and more narrowly than as proposed by Gray J the decision turned on the interpretation of the words within the Schedule 2 FOI exemptions of the MAC, when understood in light of the operation of Part 4 MVA.
The FOI Act was not seen to operate in any way to influence the breadth of the operation of the provisions in Part 4 MVA. To the contrary, the Court was prepared to read the exemption in a particular way consonant with the reference to Part 4 MVA within that exemption but determined by what Parliament intended was the meaning of the exemption – i.e. any matter relating to a claim or action (under Part 4 MVA).
In my view, there are some quite important passages in the judgment of White J that, though not apposite this case, disclose an approach that in my view is informative in respect of this case.
At paragraphs [78] and [79], White J held as follows:-
“[78] If the words, “any matter relating to a claim or action under Part 4 of the [MVA]” are understood as a composite expression, it seems more apt to regard the expression as referring to a “class of information”, rather than to a function or functions. Ordinarily, if one wished to refer to a function relating to the conduct of a claim or action, the word “matter” would not be used. If Parliament had intended that MAC’s activities generally in relation to the provision of compulsory third party insurance, or in relation to the consideration and determination of claims in respect of death or injury arising from the use of a motor vehicle, should be excluded from scrutiny under the FOI Act, it is reasonable to suppose that it may have used more apt language for that purpose. It may, for example, have used a generic term descriptive of MAC’s function, such as “the administration of the compulsory third party insurance scheme” or “the management and resolution of claims and actions under Pt 4”, or some similar expression.
[79] Paragraph (o) in Sch 2 provides a ready example of this manner of expression. It exempts as an agency a Minister of the Crown in respect of “the administration” of two funds. Paragraph (i) is another example. It exempts the Attorney‑General in respect of functions relating to “the enforcement of the criminal law”.[46] These paragraphs indicate that when the Parliament intended that an agency should be excluded with respect to a particular activity, it used a noun which was descriptive of the activity in question. The language of par (f) is quite different in this respect. The force of this consideration is, however, weakened by the fact that when, in other paragraphs, Schedule 2 exempts agencies by reference to a class of information, it uses the word “information”.”
[46] See also paragraph (m) which exempts “the Public Trustee” in respect of functions exercised as executor, administrator or trustee.
In my view, the reference in this discussion by White J to the need for specificity within the exclusion is apt in relation to a consideration of the terms of ss52X(1) CPA.
In short, to be most effective the exemption must relate to something – i.e. optimally there must be a connection between the topic (matter) and the function to which the (matter) relates. In my view, this is the structure of the exclusion in ss52X(1) CPA.
It is necessary in this context to address the last sentence of paragraph [29] of the judgment of White J. Within Schedule 2 FOI Act there are two relevant references to “information”. They are in paragraph (g) of Schedule 2 FOI Act which reads as follows:-
“(g) the Essential Services Commission in relation to—
(i)information gained under Part 5 of the Independent Industry Regulator Act 1999 that would, if it were gained under Part 5 of the Essential Services Commission Act 2002, be capable of being classified by the Commission as being confidential under section 30(1) of that Act; and
(ii)information gained under Part 5 of the Essential Services Commission Act 2002 that is classified by the Commission as being confidential under section 30(1) of that Act;”
The reference to the noun “information” in these two subparagraphs is followed by the verb “gained” under a particular Act; the first that is capable of being classified as confidential; the second that is classified as confidential. Thus, the concept of information is followed by a qualification about how it may be treated or has been treated.
That is not the case under s52X(1). The confidentiality obligation relates to information about individual cases disclosed to the Committee to assist the Committee.
In my view, the matters described as weakening the argument in the last sentence of paragraph [79] of the judgment of White J in Moloney are not apposite this case.
I find that cogent reasons exist to depart from the decision of the Ombudsman.
I make the following findings and Orders:-
1.Pursuant to s40 FOI Act 1991, I grant to the appellant leave to appeal against the decision of the Ombudsman made on the 18th day of June 2012;
2.I allow the appeal of the Minister;
3.I Order that the decision of the Ombudsman made on the 18th day of June 2012 be set aside;
4.I will hear the parties as to costs and any consequential Orders.
(1) An agency to which an application has been made may transfer the application to another agency if the document to which it relates—
(a) is not held by the agency but is, to the knowledge of the agency, held by the other agency; or
(b) is held by the agency but is more closely related to the functions of the other agency.
(2) An agency that transfers an application to another agency must, if it holds the document to which the application relates, forward a copy of the document to the other agency together with the application.
(3) An agency that transfers an application to another agency must forthwith cause notice of that fact to be given to the applicant.
(4)Such a notice must specify the day on which, and the agency to which, the application was transferred.
(5) An agency is not required to include in a notice any matter if its inclusion in the notice would result in the notice being an exempt document.
(6)An application that is transferred from one agency to another is to be taken to have been received by the other agency—
(a) on the day on which it is transferred; or
(b) 14 days after the day on which it was received by the agency to which it was originally made, whichever is the earlier.
(1) A person engaged in the administration of this Act who, in the course of that administration, obtains personal information relating to a child, a child's guardians or other family members or any person alleged to have abused, neglected or threatened a child, must not divulge that information.
Maximum penalty: $10 000.
(2) A person who attends a family conference (not being the child, a guardian of the child or any other member of the child's family) must not divulge personal information obtained at the conference relating to any of those persons.
Maximum penalty: $10 000.
(3)This section does not prevent—
(a)a person from divulging information if authorised or required to do so by law; or
(b) a person from divulging statistical or other data that could not reasonably be expected to lead to the identification of any person to whom it relates; or
(c) a person engaged in the administration of this Act from divulging information if authorised or required to do so by his or her employer.
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