Mulder and Commonwealth Director of Public Prosecutions - [2001] AATA 546

DECISION AND REASONS FOR DECISION [2001] AATA 546

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/679

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JACK DENIS MULDER
  Applicant
           And    COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date18 June 2001
PlaceSydney

Decision The Tribunal varies the deemed decision of the Respondent and decides that:

The decision of the Respondent communicated to the Applicant on 31 May 2000 is affirmed to the extent that it deals with the non-disclosure of documents because of the operation of ss 41 and 42 of the FOI Act.
The decision of the Respondent relating to the exemption under s 36, and communicated to the Applicant on 31 May 2000, is affirmed only to the extent that the document dated 2 June 1998, written by Mr Karl Alderson and marked "highly protected" in the documents labelled as number 18 in Exhibit TD4, is not to be disclosed to the Applicant. Section 36 is not available as an exemption in relation to any other documents.
The direction issued by the Tribunal under s 35 of the AAT Act on 25 January 2001 is revoked.
In accordance with s 35(2)(c) of the AAT Act the Tribunal prohibits the disclosure to the Applicant of the contents of those documents that the Tribunal has held are exempt in this matter.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – decision on a freedom of information request not made within 30 days – access to internal working documents - access to documents to be given on request - requests for access - forms of access - deferment of access - deletion of exempt matter or irrelevant material - procedure on request in respect of documents containing personal information - documents affecting personal privacy - documents subject to legal professional privilege – internal working documents - application to tribunal where decision delayed – desirability that an agency follows and applies Attorney-General's Department Freedom of Information Memoranda

Freedom of Information Act 1982, ss 15(1), (2), (5), 18, 20, 22, 27A, 36, 41, 42, 56(1), 61(1)

REASONS FOR DECISION

18 June 2001 M J Sassella, Senior Member

History of application

On 16 March 2000 the Applicant, Mr Jack Denis Mulder, wrote to the Respondent seeking "access to information held by the Commonwealth Director of Public Prosecutions about me" (T4). He also sought "information made available to me from those Government Policy documents containing information on: alleged use of any alias by me".
On 28 April 2000 an officer in the Respondent agency sent an email message to another officer in the agency in the following terms:
"Mr Mulder has just been in reception on level 35 here. I went down to talk to him (with a witness). He is concerned that he lodged a F.O.I. request on 16 March and that it has not been processed in time. I advised him that we had received his request and that it was being processed. He wanted a date when that would be finalised. I could not give him a date and advised him of that. I told him that it would be processed a.s.a.p. He then marched out to the lifts.
"Re the actual request, I will get onto processing it straight away. I believe that Brian Doherty is the F.O.I. officer. …" (T5).

On 28 April 2000 the Respondent sent a letter to the Applicant formally acknowledging his request (T6).
On 3 May 2000 the Applicant lodged with the Administrative Appeals Tribunal ("the AAT"; "the Tribunal") an application for review on the basis that the Respondent had not made a decision on the freedom of information ("FOI") request within the period of 30 days (T1). Such an application is authorised by s 56 of the Freedom of Information Act 1982 ("the FOI Act").
On 31 May 2000 Mr B Doherty, senior assistant director in the Respondent agency, wrote to the Applicant (T7) and, amongst other things, told him that:

The files held by the Respondent relating to the Applicant contain documents of five types. First is correspondence and working papers on the prosecution of the Applicant. Second is a brief of evidence. Third are transcripts of Local Court and District Court proceedings and miscellaneous documents. Fourth are counsel's materials. Fifth are appeal books filed in the Court of Criminal Appeal and miscellaneous documents. The brief of evidence had been provided earlier to the Applicant, as had the transcripts. These were not provided afresh. The fifth type of document, the appeal books, had been created by the Applicant. Copies of these were not provided to the Applicant. Thus, only document types one and four were to be dealt with.

Some of the documents considered for provision to the Applicant were provided in full. Others were provided with deletions. Others were not provided at all.

Exemptions under the FOI Act used to justify deletion or refusal of access were s 36 (documents would disclose deliberative processes involved in the functions of a Commonwealth agency or Minister), s 41 (release of documents would involve unreasonable disclosure of personal information about a person), and s 42 (documents are privileged from production because of legal professional privilege). There were 440 documents consisting of correspondence and working papers files. 77 of these documents were not provided, or were provided, but with deletions. There were seven documents described as counsel's materials. None of these were provided in full.

In the statement provided to the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") on or about 7 July 2000 Mr Doherty, for the Respondent wrote at paragraph 14 that the file held by the Respondent relates, in broad terms, to a prosecution under the Social Security Act in the Local Court, a subsequent appeal to the district Court of New South Wales, further proceedings in the Court of Criminal Appeal and the Court of Appeal. It also contains material concerning the Applicant's application for a pardon.
In an affidavit provided by the Respondent to the Tribunal dated 18 January 2001 (Exhibit TD2) Ms J A Hocking, from the Respondent agency, informed the Tribunal that the Respondent had decided to release to the Applicant three documents formerly regarded as wholly exempt. These had been released to the Applicant by the Attorney-General's Department on or about 3 November 2000. These were:

Document number 19 in annexure B to Exhibit TD2, which was document number 297 in the Respondent's correspondence file. It had been exempted in full as an internal working document.

Document number 22 in annexure B to Exhibit TD2, which was document number 308 in the Respondent's correspondence file. It had been exempted in full as an internal working document.

Document number 27 in annexure B to Exhibit TD2, which was document number 355 in the Respondent's correspondence file. It had been exempted in full as an internal working document.

The Tribunal noted these developments.
Legislation
The relevant legislation is the Freedom of Information Act 1982 ("the FOI Act") ss 15(1), (2), (5), 18, 20, 22, 27A, 36, 41, 42, 56(1), 61(1):
"Section 15
Requests for access
15. (1) Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.
(2) The request must:
(a) be in writing; and
(b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and
(c) specify an address in Australia at which notices under this Act may be sent to the applicant; and
(d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone directory; and
(e) be accompanied by the fee payable under the regulations in respect of the request.
…
(5) On receiving a request, the agency or Minister must:
(a) as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received; and
(b) as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer the provision of access to a document)."
"Section 18
Access to documents to be given on request
18. (1) Subject to this Act, where:
(a) a request is made in accordance with the requirements of subsection 15 (2) by a person to an agency or Minister for access to a document of the agency or an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access is granted has been paid;
the person shall be given access to the document in accordance with this Act.
(2) An agency or Minister is not required by this Act to give access to a document at a time when the document is an exempt document."
"Section 20
Forms of access
20. (1) Access to a document may be given to a person in one or more of the following forms:
(a) a reasonable opportunity to inspect the document;
(b) provision by the agency or Minister of a copy of the document;
(c) in the case of a document that is an article or thing from which sounds or visual images are capable of being reproduced, the making of arrangements for the person to hear or view those sounds or visual images;
(d) in the case of a document by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, provision by the agency or Minister of a written transcript of the words recorded or contained in the document.
(2) Subject to subsection (3) and to section 22, where the applicant has requested access in a particular form, access shall be given in that form.
(3) If the giving of access in the form requested by the applicant:
(a) would interfere unreasonably with the operations of the agency, or the performance by the Minister of his or her functions, as the case may be;
(b) would be detrimental to the preservation of the document or, having regard to the physical nature of the document, would not be appropriate; or
(c) would, but for this Act, involve an infringement of copyright (other than copyright owned by the Commonwealth, an agency or a State) subsisting in matter contained in the document, being matter that does not relate to the affairs of an agency or of a Department of State;
access in that form may be refused and access given in another form.
(4) Subject to subsection 17 (1), where a person requests access to a document in a particular form and, for a reason specified in subsection (3), access in that form is refused but access is given in another form, the applicant shall not be required to pay a charge in respect of the provision of access to the document that is greater than the charge that he or she would have been required to pay if access had been given in the form requested."
"Section 21
Deferment of access
21. (1) An agency which, or a Minister who, receives a request may defer the provision of access to the document concerned:
(a) if the publication of the document concerned is required by law – until the expiration of the period within which the document is required to be published;
(b) if the document concerned has been prepared for presentation to Parliament or for the purpose of being made available to a particular person or body or with the intention that it should be so made available - until the expiration of a reasonable period after its preparation for it to be so presented or made available;
(c) if the premature release of the document concerned would be contrary to the public interest - until the occurrence of any event after which or the expiration of any period of time beyond which the release of the document would not be contrary to the public interest; or
(d) if a Minister considers that the document concerned is of such general public interest that the Parliament should be informed of the contents of the document before the document is otherwise made public - until the expiration of 5 sitting days of either House of the Parliament.
(2) Where the provision of access to a document is deferred in accordance with subsection (1), the agency or Minister shall, in informing the applicant of the reasons for the decision, indicate, as far as practicable, the period for which the deferment will operate.
(3) Subsection 55 (1) does not apply in relation to a deferment under paragraph (1) (d) of this section."
"Section 22
Deletion of exempt matter or irrelevant material
22. (1) Where: (a) an agency or Minister decides:
    (i) not to grant a request for access to a document on the ground that it is an exempt document; or
    (ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
    (i) would not be an exempt document; and
    (ii) would not disclose such information; and
(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
(2) Where access is granted to a copy of a document in accordance with subsection (1):
(a) the applicant must be informed:
    (i) that it is such a copy; and
    (ii) of the ground for the deletions; and
    (iii) if any matter deleted is exempt matter because of a provision of this Act - that the matter deleted is exempt matter because of that provision; and
(b) section 26 does not apply to the decision that the applicant is not entitled to access to the whole of the document unless the applicant requests the agency or Minister to furnish to him or her a notice in writing in accordance with that section."
"Section 27A
Procedure on request in respect of documents containing personal information
27A. (1AA) This section applies if:
(a) a request is received by an agency or Minister in respect of a document containing personal information about a person (including a person who has died); and
(b) it appears to:
    (i) the officer or Minister dealing with the request; or
    (ii) a person (the "reviewer") reviewing under section 54 a decision refusing the request;
that the person referred to in paragraph (a) or, if that person has died, the legal personal representative of that person, might reasonably wish to contend that the document, so far as it contains that information, is an exempt document under section 41.
(1) A decision to grant access under this Act to the document or an edited copy of the document, so far as it contains that information, must not be made unless, where it is reasonably practicable to do so having regard to all the circumstances (including the application of subsections 15 (5) and (6)):
(a) the agency or Minister has given to the person or the legal personal representative of the person, as the case may be, a reasonable opportunity of making submissions in support of a contention that the document or edited copy, so far as it contains that information, is an exempt document under section 41; and
(b) the person making the decision has had regard to any submissions so made.
(1A) In determining, for the purposes of subsection (1AA), whether a person might reasonably wish to contend that a document, so far as it contains personal information, is an exempt document under section 41, the officer, Minister or reviewer, as the case requires, must have regard to the following matters:
(a) the extent to which the personal information is well known;
(b) whether the person to whom the personal information relates is known to be associated with the matters dealt with in the document;
(c) the availability of the personal information from publicly accessible sources;
(d) such other matters as the officer, Minister or reviewer, as the case requires, considers relevant.
(2) Where, after any submissions have been made in accordance with subsection (1), a decision is made that the document or edited copy, so far as it contains the information referred to in paragraph (1) (a), is not an exempt document under section 41:
(a) the agency or Minister shall cause notice in writing of the decision to be given to the person who made the submissions, as well as to the person who made the request; and
(b) access shall not be given to the document or edited copy, so far as it contains the information referred to in paragraph (1) (a), unless:
    (i) the time for an application to the Tribunal in accordance with section 59A by the person who made the submissions has expired and such an application (other than an application that has subsequently been withdrawn) has not been made; or
(ia) such an application has been made but the Tribunal has dismissed the application under section 42A of the Administrative Appeals Tribunal Act 1975; or
    (ii) such an application has been made and the Tribunal has confirmed the decision.
(3) Nothing in paragraph (2) (b) prevents access being given to a document of a kind referred to in that paragraph if a further request has been made for access to the document and there is no failure to comply with this section in dealing with the further request."
"Section 36
Internal working documents
36. (1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.
(2) In the case of a document of the kind referred to in subsection 9 (1), the matter referred to in paragraph (1) (a) of this section does not include matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9 (1).
(3) Where a Minister is satisfied, in relation to a document to which paragraph (1) (a) applies, that the disclosure of the document would be contrary to the public interest, he or she may sign a certificate to that effect (specifying the ground of public interest in relation to which the certificate is given) and, subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the disclosure of that document would be contrary to the public interest.
(4) Where a Minister is satisfied as mentioned in subsection (3) by reason only of matter contained in a particular part or particular parts of a document, a certificate under that subsection in respect of the document shall identify that part or those parts of the document as containing the matter by reason of which the certificate is given.
(5) This section does not apply to a document by reason only of purely factual material contained in the document.
(6) This section does not apply to:
(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b) reports of a prescribed body or organization established within an agency; or
(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.
(7) Where a decision is made under Part III that an applicant is not entitled to access to a document by reason of the application of this section, the notice under section 26 shall state the ground of public interest on which the decision is based.
(8) The responsible Minister of an agency may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to the principal officer of the agency his or her powers under this section in respect of documents of the agency.
(9) A power delegated under subsection (8), when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the responsible Minister.
(10) A delegation under subsection (8) does not prevent the exercise of a power by the responsible Minister."
"Section 41
Documents affecting personal privacy
41. (1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
(3) Where:
(a) a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person; and
(b) it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant's physical or mental health, or well-being; the principal officer or Minister may, if access to the document would otherwise be given to the applicant, direct that access to the document, so far as it contains that information, is not to be given to the applicant but is to be given instead to a qualified person who:
(c) carries on the same occupation, of a kind mentioned in the definition of "qualified person" in subsection (8), as the first-mentioned qualified person; and
(d) is to be nominated by the applicant.
(4) Subject to subsection (5), where:
(a) access to a document has been given to a person; and
(b) the document contains personal information of a medical or psychiatric nature, about the person that has been provided by, or has originated from, a qualified person acting in his or her capacity as a qualified person; and
(c) access was not given with the qualified person's knowledge;
the principal officer or Minister (as the case may be) must notify the qualified person that access to the document has been so given.
(5) Subsection (4) does not apply if it is not reasonably practicable to notify the qualified person.
(6) Without limiting the matters that may be considered in deciding whether it is not reasonably practicable to notify the qualified person, consideration is to be given to:
(a) the length of time since the information was provided by, or originated from, the qualified person; and
(b) the likelihood that the qualified person is still carrying on the same occupation; and
(c) the frequency with which, but for subsection (5), the principal officer or Minister would be required to make notifications under subsection (4); and
(d) the resources available to make such notifications.
(7) The powers and functions of the principal officer of an agency under this section may be exercised by an officer of the agency acting within his or her scope of authority in accordance with arrangements referred to in section 23.
(8) In this section:
"qualified person" means a person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well-being, and, without limiting the generality of the foregoing, includes any of the following:
(a) a medical practitioner;
(b) a psychiatrist;
(c) a psychologist;
(d) a marriage guidance counsellor;
(e) a social worker".
"Section 42
Documents subject to legal professional privilege
42. (1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2) A document of the kind referred to in subsection 9 (1) is not an exempt document by virtue of subsection (1) of this section by reason only of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9 (1)."
"Section 56
Application to Tribunal where decision delayed
56. (1) Subject to this section, where:
(a) a request has been made to an agency or Minister in accordance with section 15; and
(b) the period of 30 days, in relation to the request, mentioned in paragraph 15 (5) (b), or that period as extended under subsection 15 (6), has expired since the day on which the request was received by or on behalf of the agency or Minister; and
(c) notice of a decision on the request has not been received by the applicant;
the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 55, be deemed to have made, on the last day of that period, a decision refusing to grant access to the document."
"Section 61
Onus
61. (1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant."

Appearances

The Tribunal convened a hearing in this matter on 25 January 2001. The Applicant represented himself. Mr G A Farmer of counsel represented the Respondent.
Documentary evidence
The Tribunal received into evidence the following additional materials:

Exhibit TD1: Section 37 Statement and associated documents received by the Tribunal on 11 July 2000.

Exhibit TD2: Affidavit by Ms J A Hocking dated 18 January 2001.

Exhibit TD3: Affidavit by Ms J A Hocking dated 23 January 2001.

Exhibit TD4: Affidavit by Mr C J Murphy dated 18 January 2001 seeking orders under s 35 of the AAT Act in respect of certain of the disputed documents.

Exhibit TD5: A set of documents which are copies of documents provided by the Respondent to the Applicant with material deleted. This was received by the Tribunal on 29 January 2001.

Section 35 order

In accordance with s 35(2)(c) of the AAT Act, and in accordance with the request contained within the affidavit by Mr Murphy (Exhibit TD4), the Tribunal issued a direction at the hearing prohibiting the disclosure to the Applicant of the contents of the documents described in paragraph 6 of Mr Murphy's affidavit. This direction will remain in force until the Tribunal publishes its decision in this matter.
Applicant's case
At the Tribunal hearing the Applicant opened with a number of points or issues. These included:

A demand to know where the Respondent's FOI officer was. It would appear that the Applicant anticipated the presence of Mr Doherty at the hearing.

The Applicant had made three requests for the materials in issue. He had first requested them on 18 December 1999. Apparently there was no reaction to this request. The Applicant refers to the request in his FOI request at T4. He wrote on T4, "A copy of this letter was sent 18 December 1999." In the Section 37 Statement (Exhibit TD1) Mr Doherty says in paragraph 2, "Th[ere] is no record of an earlier receipt of the letter." The second request was made in March 2000 (T4). It is unclear when a third request was made.

The Respondent is always late in complying with requests for the provision of documents. The Respondent is late in acknowledging receipt of FOI requests. In the present case the Respondent sought an extension of time for provision of the Section 37 Statement. This is largely borne out by the documentation. In the Section 37 Statement (Exhibit TD1) at paragraph 3 Mr Doherty acknowledges that the Respondent "did not acknowledge receipt of the request, or respond to the request, within the time prescribed in the Act." Further, the email record at T5 shows that, as late as 28 April 2000 (43 days after receipt of the request) no action had yet commenced to process the request. The request should have been finalised by 15 April 2000. An acknowledgment should have been sent by no later than 31 March 2000. The Section 37 Statement was not completed until 7 July 2000. Under s 37 of the AAT Act it was due for lodgement on or about 31 May 2000. The Respondent sought additional time within which to lodge its statement. The Applicant objected to the Tribunal receiving the Section 37 Statement and marking it as an exhibit as it was out of time. The Tribunal overrode this objection for two reasons. First, the Tribunal had granted the Respondent an extension of time for lodging the statement. Second, the Tribunal felt the need of access to the statement for it to do its work appropriately in any event. It would not, in the Tribunal's view, aid the Applicant in any way to rule that the Section 37 Statement was not to be accepted into evidence. The Applicant objected also to the Tribunal accepting as exhibits the affidavits by Ms Hocking and Mr Murphy (Exhibits TD2, TD3 and TD4) on the basis that they had not been provided to the Tribunal at least seven clear days before the date of the hearing. The Tribunal did not accept this objection because the documents reached the Tribunal on 18 January 2001, seven calendar days before the hearing. This seems to the Tribunal to comply with the requirement in paragraph 2 of the Tribunal's Freedom of Information Practice Direction.

The Applicant was not given access to his file. He has been given copies. The Respondent's representatives relied on s 20(1)(b) of the FOI Act as justification for adopting that practice. However, the Tribunal notes that the Applicant does not specifically ask for access to the original file in T4. The Applicant asked the Tribunal to direct the Respondent to provide him with access to the original files concerning him held by the Respondent. The Respondent objected stating that this would involve Mr Mulder having access to documents the Respondent considers exempt under the FOI Act. In general the Respondent would oppose members of the public having direct access to their or other files held by the agency. The Respondent discourages access by members of the public to its office areas. The Applicant objected in turn that the Respondent was attempting to water down the FOI Act. The Respondent is not an exempt agency under the FOI Act. It should provide for a FOI access office as have other agencies.

The Applicant pointed out that he referred to an expected acknowledgment and offered to discuss any problems in his letter at T4. This is correct. There was no acknowledgment provided, and the Respondent initiated no discussions about any difficulties despite failing to act on Mr Mulder's request within the statutory time frame.

The Applicant noted that there is no reference to correspondence to the Respondent from Centrelink, the Australian Federal Police, the Department of Immigration and Multicultural Affairs, the Department of Foreign Affairs and Trade or the Passports Office in the lists of documents appended to the Respondent's correspondence to him.

The Applicant considers that documents have not been provided. This is a continuation of the previous point. He refers to Exhibit TD2, Ms Hocking's affidavit, as evidence.

He considers that the exemption in respect of legal professional privilege under s 42 of the FOI Act is no longer applicable because the cases involving Mr Mulder have been completed. In response, Mr Farmer for the Respondent referred to s 42 of the FOI Act. Mr Farmer paraphrased s 42 by saying that the test set out in the FOI Act is whether the document would be afforded the protection of legal professional privilege if the matter went to trial. He then referred to ss 118 and 119 of the Evidence Act 1995 which do not provide for loss of client legal privilege merely because potential litigation has been abandoned.

The Applicant's main reason for his FOI request is that there may be, in his view, inaccurate, false material on his file. He wants to ensure that the material on his file is true and correct. He has found the Respondent agency unhelpful. They have resorted to bringing a barrister into the process.

Consideration of the claimed exemptions
Section 41 – personal information

Much of the material not provided to Mr Mulder was considered as exempt by the decision-maker on the basis that "its disclosure … would involve the unreasonable disclosure of personal information about any person" (s 41(1) of the FOI Act).
Ms Hocking's affidavit (Exhibit TD2) helpfully identifies the relevant documents and what personal information they contain. It features two annexures ("A" and "B"). The primary difference between the annexures is that annexure A includes all of the material in annexure B along with additional material. Annexure B concentrates on material for which complete exemptions were claimed. Annexure A refers in addition to material that was provided to the Applicant but which contained deletions. The second annexure was produced to highlight the material that the Applicant said at a Tribunal conference he was still interested in obtaining. It appears that at that stage he had no ongoing concern about the deletions, although he changed his mind during the hearing. In the discussion below the Tribunal refers to annexure B.

Document 1 is from the correspondence file and contains the passport number and travel movements of a person other than the Applicant. A full exemption has been claimed. An exemption under s 42 is also claimed.

Document 16 is from the correspondence file and includes the name and description of a defendant other than the Applicant in a separate prosecution matter. It contains notes regarding personal and unrelated matters of a solicitor employed by the Respondent. This document was provided with deletions.

Document 17 contains details concerning a bail application by a defendant other than the Applicant in a separate prosecution. This document was provided with deletions.

Document 23 contains details of a barrister's retainer. A full exemption has been claimed.

The Tribunal is satisfied that the exemptions claimed in respect of these documents have been appropriately claimed. The personal information within the documents is as described by Ms Hocking and the Tribunal, having considered the document, agrees that its disclosure would be unreasonable.
Section 42 – legal professional privilege
The Evidence Act 1995 refers to the concept of client legal privilege (Part 3.10, Division 1). The FOI Act refers to legal professional privilege. The Tribunal accepts that the two descriptions apply to the same species of privilege. The description in the more modern Evidence Act is more accurate in that it aptly emphasises that the privilege belongs to the client not the legal adviser. The Tribunal uses the FOI Act terminology in these reasons.
As Ms Hocking states in her affidavit, "The documents numbered 1 to 15, 20, 23 to 25, and 32 to 41 are confidential documents made between clients and a lawyer or made between two or more lawyers for the dominant purpose of the lawyer, or one or more of the lawyers providing legal advice to the clients. The documents are confidential documents because the creators and the recipients were under an express or implied obligation not to disclose their contents. The documents were made between clients and a lawyer or between two or more lawyers acting for the clients" in a number of contexts. The following table explains this further.
Document number in annexure B Document number in Respondent's correspondence file or counsel's materials ("CM") Whether exempt in full ("EF") Nature of communications
4 EF Between DPP employee lawyer and officer employed by DPP client
15 EF Between DPP employee lawyer and two officers in client agency
16 EF Between DPP employee lawyer and officer employed by DPP client
19 EF Between a DPP employee lawyer and a lawyer in the NSW DPP acting as an agent for the DPP
24 EF Between a DPP employee lawyer and a lawyer in the NSW DPP acting as an agent for the DPP
25 EF Between a DPP employee lawyer and a lawyer in the NSW DPP acting as an agent for the DPP
31 EF Between a member of the AFP and an employee lawyer of the DPP
47 EF Between an employee lawyer of the DPP and a member of the AFP
121 EF Between DPP employee lawyer and officer employed by DPP client
122 EF Between DPP employee lawyer and officer employed by DPP client
123 EF Between DPP employee lawyer and officer employed by DPP client
167 EF Between DPP employee lawyer and officer employed by DPP client
168 EF Between DPP employee lawyer and another lawyer briefed by DPP
169 EF Between an employee of DSS and an employee lawyer of the DPP
186 EF Between DPP employee lawyer and another lawyer briefed by DPP
302 EF Between two lawyers employed by the DPP
321 EF Between DPP employee lawyer and another lawyer briefed by DPP
328 EF Between a lawyer briefed by the DPP and an employee lawyer of the DPP
329 EF Between a lawyer briefed by the DPP and an employee lawyer of the DPP
408 EF Between DPP employee lawyer and another lawyer briefed by DPP
415 EF Between a lawyer briefed by the DPP and an employee lawyer of the DPP
416 EF Between DPP employee lawyer and another lawyer briefed by DPP
431 EF Between a lawyer briefed by the DPP and an employee lawyer of the DPP
1 CM EF Between DPP employee lawyer and another lawyer briefed by DPP
2 CM EF Between DPP employee lawyer and another lawyer briefed by DPP
3 CM EF Between a lawyer briefed by the DPP and an employee lawyer of the DPP
4 CM EF Between a lawyer briefed by the DPP and an employee lawyer of the DPP
5 CM EF Between a lawyer briefed by the DPP and an employee lawyer of the DPP
7 CM EF Between a lawyer briefed by the DPP and an employee lawyer of the DPP

The Tribunal has inspected these documents and has concluded that they are appropriately to be regarded as privileged.
Section 36 – internal working documents
As Ms Hocking states in her affidavit, "disclosure of the documents numbered 18, 21, 26, and 28 to 31 would disclose matters in the nature of, or relating to, consultation and deliberation that has taken place in the course and for the purposes of the deliberative processes involved in the functions of agencies and would be contrary to the public interest."

Document 18 is document 296 in the Respondent's correspondence file. It has been exempted in full by the Respondent. It is a letter from the Parole and Remissions Section of the Attorney-General's Department to the Respondent concerning the Applicant's application for a pardon or remission of sentence. It has been exempted in full.

Document 21 is document 307 in the Respondent's correspondence file. It has been exempted in full by the Respondent. It is a fax cover sheet with an extended note from an officer in the Attorney-General's Department to an officer in the Respondent's agency referring to document 19 which was released to the Applicant on or about 3 November 2000 by the Attorney-General's Department. It has been exempted in full.

Document 26 is document 346 in the Respondent's correspondence file. The first page, a fax cover sheet, has been exempted in full. The attached letter from the Attorney-General's Department to the Applicant, dated 1 October 1998, was provided to the Applicant.

Document 28 is document 365 in the Respondent's correspondence file. It is a copy of a letter to the Respondent from the Attorney-General's Department with a sticker containing details of an internal telephone conversation between officers in the Respondent agency concerning Respondent head office views on the question of release of the Respondent's report dated 17 July 1998. It has been exempted in full.

Document 29 is document 367 in the Respondent's correspondence file. It is an internal fax from one part of the Respondent agency to another with annexures. It deals with the question of release of a report by the Respondent agency dated 17 July 1998. This report has been released to the Applicant since the application for review was lodged with the Tribunal. It has been exempted in full.

Document 30 is document 370 in the Respondent's correspondence file. It is a record of telephone conversations between an officer of the Respondent agency and another officer of the agency in Canberra and a telephone conversation with an officer in the Attorney-General's Department. It has been exempted in full.

Document 31 is document 371 in the Respondent's correspondence file. It is a letter from the Attorney-General's Department concerning a decision not to provide the Applicant with a summary of material adverse to his petition for a pardon or remission of sentence or review of his conviction. It has been exempted in full.

Exhibit TD2, annexure A

At the hearing the Applicant withdrew his earlier agreement with the Respondent to accept the deletions in those documents to which he had been granted access, albeit with deletions. The Respondent had asserted that the deletions related to the names and contact details of officers in the Respondent agency and argued that it would be inappropriate to disclose that information. At the hearing the Applicant argued that additional material might have been deleted. The Tribunal issued a direction to the Respondent to require the production of the relevant documents with the deletions highlighted so that the Tribunal could form its own view. This material was provided by the Respondent in a welcome spirit of cooperation. That material is Tribunal Exhibit TD5.
The Tribunal has scrutinised that material and has ascertained that almost all of the deletions are confined to telephone contact numbers. A very few other deletions refer to individuals in a third party organisation by name and location.
Certain documents not accounted for
The position of the Respondent in relation to a number of documents is not clear, to judge from annexure A to Exhibit TD2. Correspondence file documents 72, 113, 160, 193, 194, 195, 196, 209, 220, 227, 277, 320, 339, 354 and 434 were referred to in annexure A but not in annexure B. There is no reference to these documents in the affidavit at Exhibit TD2 as being exempt under any of ss 36, 41 or 42 of the FOI Act. The inference from the affidavit is that the Applicant is no longer pressing for them. Copies of these documents have not been lodged with the Tribunal. However, there is a sufficient description of the tenor of each document in annexure A for the Tribunal to identify the basis for any exemption. All but one of these documents would be exempt under s 41 on the basis that disclosure would involve the unreasonable disclosure of personal information:

The personal information in many documents relates to a barrister's retainer or fees. This applies to documents 113, 193, 196, 220, 227, 320 and 339.

The personal information in document 72 relates to solicitor's fees.

The personal information in a number of documents relates to fees paid to service firms such as process servers. This applies to documents 160, 209 and 354.

The personal information in a number of documents relates to particulars of witness expenses. This applies to documents 194, 195 and 277.

Document 434 is said to be exempt on the basis of legal professional privilege. It is a memorandum of fees due to a barrister.
Findings on material questions of fact with reference to the evidence and other material relevant to those findings
The Tribunal has made the following findings in this matter.
Access to documents 19, 22 and 27 in annexure B of Exhibit TD2 was properly given to the Applicant by the Respondent for the reasons set out in paragraph 7 of this statement of reasons.
The Tribunal finds on the balance of probabilities that the Applicant made only one request under the FOI Act in the terms of the request under consideration now. Although the Applicant asserted that he had made three requests in similar terms, and inferred that the others had been ignored, no solid evidence to that effect was forthcoming.
The Tribunal finds that the Respondent acted lawfully under the FOI Act in providing the Applicant with copies those documents to which it had decided to grant the Applicant access. The Tribunal notes that the Applicant's request at T4 did not specify that access must be to the original file. Section 20(1)(b) of the FOI Act permits an agency to provide access in the form of a copy of a document.
The Tribunal finds that the exemption in respect of legal professional privilege remains available to the Respondent in this matter despite the fact that all actions involving the Applicant appear to have been finalised. The Tribunal accepts the arguments put for the Respondent on this point in paragraph 13 of these reasons.
The Tribunal finds that the exemptions claimed on the basis of s 41 of the FOI Act in respect of documents 1, 16, 17 and 23 of annexure B to Exhibit TD2 have been lawfully claimed. In the Tribunal's view the information relating to third parties in those documents should not be disclosed. Disclosure would be unreasonable. It is inherently personal information.

The Tribunal finds that documents 1 – 15, 20, 23 – 25, 32 – 41 are exempt from disclosure on the basis of legal professional privilege (s 42 of the FOI Act refers). From its own perusal of the relevant documents the Tribunal considers these documents appropriate to attract this category of privilege.
The Tribunal is less willing to endorse immediately the Respondent's decisions in relation to documents 18, 21, 26, 28, 29, 30 and 31 on the basis of their being internal working documents under s 36 of the FOI Act.

Document 18 is a letter from the Attorney-General's Department to the Respondent seeking the Respondent's comments on the Applicant's application for a pardon or remission of sentence. It seeks the Respondent's advice on particular matters not appearing in documents but possibly within the knowledge of the Respondent's officers. These relate to factual matters of relevance to consideration of the Applicant's application. Several documents are attached. Two of these were originated by Mr Mulder. Another is a summary of the proceedings involving Mr Mulder at the Parramatta District Court. In the Tribunal's view it is probably the case that this material falls within the description of material caught by s 36 of the FOI Act. For s 36 to apply:

a document must contain opinion, advice or recommendation or consultation or deliberation that has been prepared or recorded or has taken place in the course of, or for the purposes of, the deliberative processes of the agency or Minister; and

those processes must be carried out as part of the properly defined functions of the agency, Minister or government.

Document 18 contains consultation material that has been prepared in the course of the deliberative processes of both the Respondent agency and the Attorney-General's Department. These processes have been carried out as part of the properly defined functions of both agencies, but especially the Respondent agency. However, for the exemption to operate, the disclosure must be contrary to the public interest (FOI Act s 36(1)(b)). The material included in document 18 is largely factual and uncontroversial. It is difficult to see any public interest that is served by withholding it from Mr Mulder. There is a document marked "highly protected" written by Mr Karl Alderson and dated 2 June 1998 which is very frank in its assessment of Mr Mulder's case. There is very likely a public interest in protecting this document from release. It is the type of document that might be produced with less candour if access is customarily granted to it. The Tribunal will therefore find that the Applicant is to be given access to document 18 except for Mr Alderson's memorandum dated 2 June 1998.

Document 21 is from Mr Alderson in the Attorney-General's Department to Mr Moorhouse in the Respondent agency. It is dated 23 July 1998. It thanks Mr Moorhouse for a report he has provided. It carries as an attachment a letter Mr Alderson had just received from the Applicant and seeks any comments Mr Moorhouse might wish to make. This is again a document caught by s 36 of the FOI Act. However, the Tribunal's view is that its disclosure would not be contrary to the public interest. Its contents are innocuous and their disclosure would be of information that would come as no surprise to a reader.

Document 26 is a fax from Mr Alderson to Mr Moorhouse dated 1 October 1998 providing Mr Moorhouse with a copy of a letter he sent on the same date to the Applicant. In that it is a communication from one of government agency to another to bring it up to date on developments it is a document within s 36. However, the scant information that it contains that is additional to material provided already to Mr Mulder can be released, in the Tribunal's view, without the disclosure being contrary to the public interest.

Document 28 is a letter from Mr Alderson to Mr Moorhouse dated 14 October 1998 informing Mr Moorhouse of a request by Mr Mulder for copies of certain documents relating to the refusal of his request for a pardon or remission of sentence. It refers to a draft document to be sent to Mr Mulder that was attached to the letter but is not included as part of document 28. The letter contains annotations showing how Mr Alderson's request was dealt with in the Respondent agency. Document 28 is a deliberative document under s 36 of the FOI Act. However, again the material included in the document could, in the Tribunal's view, be disclosed without any adverse effect on the public interest.

Document 29 is a set of documents provided by Mr Moorhouse in the Respondent's Sydney office to a Mr Thornton in the Respondent's Canberra office. The documents included are another copy of Mr Alderson's letter to Mr Moorhouse dated 14 October 1998, the draft document prepared by Mr Alderson to give to Mr Mulder, a letter to the Attorney-General's Department from Mr Mulder dated 8 October 1998 and a copy of a letter from the Respondent to the Attorney-General's Department dated 17 July 1998 (already released to Mr Mulder by both the Respondent and the Attorney-General's Department). These are deliberative documents under s 36 of the FOI Act. However, again the material has in some instances been disclosed already and, in any event, would not be adverse to the public interest if it were released. A possible exception relates to the draft document summarising material put to the Minister for Justice in relation to Mr Mulder's application for a pardon or remission of sentence. That document, which the Attorney-General's Department ultimately decided not to provide to Mr Mulder, might be seen as an internal working document, disclosure of which would be contrary to the public interest in that the document refers to arguments and information put to a Minister. Perhaps a writer of such a document would be hampered in the freedom he or she might feel in drafting such a document in the future if this document were to be disclosed. The Tribunal is not convinced by this argument. The document was drafted with a view to it being disclosed to Mr Mulder and the material included within it is predictable. On balance the Tribunal considers that it would not be contrary to the public interest to disclose that document.

Document 30 is two file notes dated 6 November 1998 concerning the Respondent's attitude to disclosure of correspondence from the Respondent to the Attorney—General's Department. The Tribunal finds that this document is a deliberative document and is within the ambit of s 36 of the FOI Act. However its disclosure would not be contrary to the public interest. The notes record a position or attitude that comes as no surprise to a reader.

Document 31 is a letter dated 6 November 1998 from Mr Alderson to Mr Moorhouse advising the Respondent that the Attorney-General's Department had decided not to provide the Applicant with a summary of material adverse to his application for a pardon or remission of sentence. This document is caught by s 36 of the FOI Act but its contents are predictable and their disclosure would not be contrary to the public interest.

The Tribunal finds that the deletions in the documents included in Exhibit TD5 were legally justified under s 41 of the FOI Act.
The Tribunal finds that the Respondent's decision that documents 72, 113, 193, 194, 195, 196, 209, 220, 227, 277, 320, 339, 354 in annexure A to Exhibit TD2 are exempt is correct because their disclosure would involve the unreasonable disclosure of personal information under ss 41 and 42 of the FOI Act.
The Tribunal finds that the Respondent's decision that document 434 in annexure A to Exhibit TD2 is exempt is correct because the document is protected by legal professional privilege and is exempt under s 42 of the FOI Act.
Other observations
There were several deficiencies in the Respondent's handling of the Applicant's FOI request. The first was that T5 indicates that the request was left with no action taken to satisfy the request for a period longer than the 30 days allowed under the FOI Act. Even then, it appears that it was only the fact that Mr Mulder visited the Respondent's premises that prompted the Respondent to commence action. This suggests at the very least an ignorance of the requirements of the FOI Act, if not a complete disregard of its provisions.
The Respondent's claim that seven sets of documents are exempt under s 36 as internal working documents was not appropriately supported. All that was said to explain this exemption was the comment in Ms Hocking's affidavit (Exhibit TD2) as follows:
"The disclosure of the documents numbered 18, 21, 26, and 28-31 would disclose matters in the nature of, or relating to, consultation and deliberation that has taken place in the course and for the purposes of the deliberative processes involved in the functions of agencies and would be contrary to the public interest.
"Those documents concern the Applicant's application for a pardon or remission of his sentence. They contain confidential information about the consultation and deliberation that took place between the Commonwealth Attorney-General's Office and the Respondent before a determination was made not to grant the Applicant a pardon. If that information is disclosed it may hinder the operation of government agencies handling such applications."

As was seen earlier in paragraph 32, the Tribunal largely disagrees with that assertion as regards the public interest for the reasons given earlier. The Respondent appears unaware of the content of the Attorney-General's Department's Freedom of Information Memorandum No. 98 – Exemptions Sections in the FOI Act ("the FOI Memorandum"). The FOI Memorandum can be located at In relation to the exemption under s 36 of the FOI Act the FOI Memorandum states:
"7.5 Public Interest
"7.5.1 Paragraphs 1.6.3.1 – 1.6.3.3.1 deal with the public interest concept and the balancing process involved in making a decision concerning the public interest. The examples of public interest factors that would favour disclosure listed in paragraph 7.6 are relevant to the balancing process that is usually required when this exemption is claimed.
"7.5.2 Although the public interest test in s 36(1) is an open one in the sense that the provision does not incorporate a defined harm to the public interest which is to be balanced against public interest factors favouring disclosure, in broad terms it may be said that it is concerned with protection against prejudice to the ordinary business of government (Mason J in Commonwealth v John Fairfax Pty Ltd in a non-FOI context). Underlying all the relevant public interest factors that could be invoked against disclosure under this exemption provision is the need to consider the extent to which disclosure of the documents would be likely to impede or have an adverse effect upon the official administration of the agency concerned (or the performance of functions of a Minister or the Government as a whole) (Re Lianos and Department of Social Security, (D52)). Nonetheless, the exemption will only apply where those effects are not outweighed by public interest factors favouring disclosure.
"7.5.3 The effect of the public interest test in relation to deliberative process documents has been a contentious area since the introduction of FOI laws in Australia from the early 1980s. The views of the AAT and other review bodies have evolved, as was expected from the outset by its framers and early interpreters (see eg. the comments of Deputy President McDonald in Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (D384)).
"7.5.4 Under s 36(7), the public interest grounds both those in favour of non disclosure and those favouring disclosure, on which a decision to exempt a document under s 36 has been made must be included in an agency's statement of reasons under s 26 of the FOI Act (Re Burns, (D26) and Re Kamminga, (D290)).
"7.6 Examples of public interest factors
premature release of an incomplete and provisional report into the functioning of the ABC's Legal Branch, which could have created a misleading and perhaps unfair impression on readers not having the benefit of hearing the other side (Harris v Australian Broadcasting Corporation (No 1) (D10.1); see also Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs);
disclosure of methodology for identifying schools for closure, including enrolment and cost projections, which could have created expectations about future closures resulting in adverse effects on some existing schools (Re Weetangera Action Group and Australian Capital Territory Department of Education and the Arts (D286.1));
in particular cases, there may be a public interest in non-disclosure where reasons for a decision are not fully disclosed in the documents sought (Re Howard and Treasurer of the Commonwealth (D60), Re Weetangera (D286.1)). However, this ground should be used sparingly, since it is often open to an agency to release the real ground for decision without damage to governmental interests, and the democratic objects of the Act will tend towards that outcome;
prejudice to negotiations between the Commonwealth and a State would constitute a public interest ground for non-disclosure (Re Rae and Department of Prime Minister and Cabinet (D101));
a strong public interest in a stable teaching service which could be disrupted by disturbance of the criteria for the handling and release of selection documents (Re Barkhordar and Australian Capital Territory Schools Authority (1987) 12 ALD 332 (D172));
disclosure of co-ordination comments and other documents relating to the Australia Card proposal and which, while closely connected to the Cabinet process, did not constitute Cabinet documents under s 34(1), was held to be contrary to the public interest because, having regard to the documents, their disclosure would have breached the confidentiality applying to the deliberations and processes of Cabinet (Re Porter and Department of Community Services and Health (D214));
disclosure of information which revealed management weaknesses and remedial action in the ABSTUDY program was held contrary to the public interest, although the reasons for that finding (eg. disclosure would assist future fraud) were not stated by the AAT (Re Kanak and Department of Education, Employment and Training (D375));
disclosure of communications between senior officials and the Minister for Health and between the Commonwealth and NSW, concerning the doctors' strike of 1985, was held contrary to the public interest in view of the ongoing nature of the dispute and the fact that the strategies developed by the Government could come into play in the future (Re Hyland and Department of Health (D152));
a claim that disclosure would reveal a matter about which the applicant had no suspicions did not constitute a public interest factor against disclosure (Re Lordsvale F Finance Limited (No 2) and Department of Treasury (D118);
disclosure of a document recording the substance of a discussion that occurred at a high level involving sensitive issues between the Commonwealth and the Victorian State Government in respect of public sector superannuation arrangements was held to be contrary to the public interest because officers may feel some reluctance in the future to record issues that are sensitive in the sense that the matters recorded are neither final or conclusive, nor necessarily reflective of the nature and content of the final decision that was or might be made (McGarvin and Australian Prudential Regulation Authority (D428));
disclosure of documents relating to litigation in the High Court against the Northern Land Council (NLC), finally determined by the High Court in Commonwealth of Australia v Northern Land Council was held not to be contrary to the public interest, as it could have no effect on future NLC or other litigation, and there was no public detriment in disclosing litigation tactics considered but not adopted."
Elsewhere in the FOI Memorandum the way a decision-maker should approach public interest arguments is set out in full:
"1.6.3 The Public Interest
"1.6.3.1 The phrase 'public interest' appears in a number of exemptions in the FOI Act. The concept of public interest is given different applications in various areas of decision making, depending on the legislative or administrative purposes involved. The 1979 Senate Committee on FOI described the concept in the FOI context as a convenient and useful concept for aggregating any number of interests that may bear upon a disputed question that is of general – as opposed to merely private – concern.
1.6.3.2 When considering whether documents can or should be released, the concept of the public interest requires a decision-maker to weigh the public interest factors for and against disclosure and to decide, on balance, whether disclosure is in the public interest. In order to comply with the principles in the FOI Act, documents should be released unless the balance lies strongly against disclosure.
"1.6.3.1 What is the public interest
"1.6.3.1.1 The concept of the public interest is not defined in the FOI Act. This omission was deliberate so that decision-makers have to undertake a specific analysis of what constitutes the public interest in any particular matter at the time, rather than relying on set criteria. The concept is not unique to the FOI Act. It is employed, for example, in determining when public interest immunity may be claimed by government, and sometimes others, in legal proceedings to prevent disclosure of (usually official) documents. Many of the factors found in FOI decisions favouring non-disclosure of official documents have been drawn from cases on public interest immunity. However, those cases do not furnish examples of pro-disclosure factors in making FOI decisions, as there is only one principal factor of this kind relevant – that is, in broad terms, the public interest in the fair and open administration of justice.
"1.6.3.1.2 The public interest has been described as something that is of serious concern or benefit to the public, not merely of individual interest (British Steel Corporation v Granada Television Ltd ). It has been held that public interest does not mean of interest to the public but in the interest of the public (Johansen v City Mutual Life Assurance Society Ltd).
"1.6.3.1.3 Accordingly, to conclude that on balance disclosure of information would be in the public interest (or not contrary to the public interest) is to conclude that the benefit to the public at large resulting from disclosure outweighs the benefit to it of withholding the information. It may be relevant to that conclusion that there is a serious public debate about, or concern with, the issues with which the requested documents deal.
"1.6.3.1.4 In arriving at the balance of public interest in a particular case, it may be necessary to consider the interests of a substantial section of the public as a factor to be weighed. As an example in another field, in Sinclair v Mining Warden of Maryborough, the High Court held that the interests of the residents of Fraser Island were the interests of a substantial section of the public. In the words of Barwick CJ:
The interest, of course, must be the interest of the public and not mere individual interest which does not involve a public interest. Clearly enough, the material evidenced by the appellant did relate to a public interest not limited to the interests of a less than significant section of the public.
"1.6.3.1.5 It is clearly established that the public interest is not synonymous with government interest' (Re Bartlett and Department of the Prime Minister and Cabinet (D200)). For example, it could not be said there is a public interest in the rights of individuals or corporations being unfairly disadvantaged in a dispute with government relating to trading or commercial activities.
"1.6.3.1.6 The lack of specificity in the term public interest can make it difficult for a decision maker to ascertain the factors, both for and against disclosure, relevant to particular information. There is no restriction on the factors to which an agency can refer when claiming that disclosure would be contrary to the public interest. The factors referred to will depend on the type of information contained in the documents, the context of their creation, the information which would be released and any other circumstances particular to the request. It will not be enough simply to list the factors which are contrary to the public interest; a decision maker will have to explain why the disclosure of the document would be contrary to the public interest taking into account the public interest in facilitating and promoting the disclosure of information referred to in s 3 (Arnold v Queensland (D189)) and any other specific pro-disclosure factors.
"1.6.3.1.7 Where a decision-maker claims an exemption that incorporates a public interest test and decides that it would be contrary to the public interest to disclose the information, he or she should list in the statement of reasons all the public interest factors, both for and against disclosure, taken into account in applying the test. The decision maker must be able to show that a specific detriment will occur because of the disclosure. Section 36 (deliberative process documents) expressly contains the requirement to state the public interest ground on which access was refused (s 36(7)) and in practice this requirement should be extended to other exemptions containing a public interest test. It is important that applicants have a clear understanding of an agency's reasons for a decision (see New FOI Memo No. 26 - Statement of Reasons). This will assist them to assess whether an application for review of the decision is warranted. Provided the matter has been considered carefully and objectively in light of the specific circumstances at hand, the agency cannot be criticised for the view it has taken, even if on review the decision is overturned.
"1.6.3.2 Weighing the public interest
"1.6.3.2.1 Once the public interest factors have been identified, the decision maker must then weigh up the various factors and decide either in favour of disclosure or non-disclosure. This is not always an easy task. The requirement to undertake this process is, however, necessary and important. The High Court in Sankey v Whitlam said that the task of a court in dealing with a claim for withholding documents on public interest grounds is to weigh competing public interests. The courts and FOI decision makers must weigh competing aspects of the public interest against each other and decide where the balance lies.
"1.6.3.2.2 The balancing exercise does not involve any presumption in favour of release or of non-disclosure. However, the object of the legislation in s 3 to ensure public access to government held information as far as possible, is always to be included as a public interest factor to be weighed in favour of release. For example, where the degree of disadvantage caused by disclosure is small, or the prospect of public disadvantage is comparatively remote, the principles in s 3(2) of the FOI Act may be enough on its own to tip the balance in favour of disclosure (Arnold v Queensland (D189)). Applying this factor in the balancing process is far more than a formality. A decision maker must weigh the degree of impairment of the democratic objectives of the Act resulting from non-disclosure of the specific documents against the specific adverse effects of disclosure on the governmental or other interests protected by the exemption. Release, for example, of deliberative process documents will often enhance the democratic process, and that should be given serious weight in considering whether the adverse effects of release should lead to the documents being withheld.
"1.6.3.2.3 There will usually be competing public interest arguments for and against disclosure which a decision maker will have to weigh up. Not undertaking this exercise properly can leave a decision maker open to the criticism that they failed to consider adequately the arguments in favour of disclosure or failed to properly balance the competing arguments.
"1.6.3.2.4 If a decision maker can say that specific adverse effects on an agency's operations will result from disclosure or it will suffer some significant or substantial impairment of its decision-making processes as a result of disclosure, it may be enough to tip the balance in favour of a decision that release would be against the public interest. However, mere inconvenience or embarrassment to an agency or government is not a sufficient ground for relying on the public interest against disclosure.
"1.6.3.2.5 When thinking about the application of any public interest factors, decision makers must remember that they (or some other officer of the agency) may be called upon to provide evidence for why they believe the adverse consequences will occur (for example, if the applicant seeks review of the decision by the AAT)."

The FOI Memorandum is in no way binding on a Commonwealth agency but it does provide evidence of what is best practice. The Attorney-General's portfolio is responsible for the FOI Act under the Administrative Arrangements Order. Its views for that reason, and because it is, with the Australian Government Solicitor's Office, the chief Commonwealth adviser to Commonwealth agencies on legal issues, are extremely important and should be accorded considerable deference by agencies. In the present case there was no significant attempt by the Respondent to engage in the process of weighing the competing public interests in disclosure (on one hand) and non-disclosure (on the other hand). Section 61 of the FOI Act imposes on a Respondent an onus of proof in relation to claimed exemptions. It will be difficult for that onus to be discharged if an agency does not abide by the FOI Memorandum and its requirements.
Conclusion
The Tribunal has decided in the main to affirm the decisions, both deemed and actual, however it has decided to depart from the Respondent agency's decision that certain documents are not to be disclosed because of the operation of s 36 of the FOI Act.
Decision
The Tribunal varies the deemed decision of the Respondent and decides that:
The decision of the Respondent communicated to the Applicant on 31 May 2000 is affirmed to the extent that it deals with the non-disclosure of documents because of the operation of ss 41 and 42 of the FOI Act.
The decision of the Respondent relating to the exemption under s 36, and communicated to the Applicant on 31 May 2000, is affirmed only to the extent that the document dated 2 June 1998, written by Mr Karl Alderson and marked "highly protected" in the documents labelled as number 18 in Exhibit TD4, is not to be disclosed to the Applicant. Section 36 is not available as an exemption in relation to any other documents.
The direction issued by the Tribunal under s 35 of the AAT Act on 25 January 2001 is revoked.
In accordance with s 35(2)(c) of the AAT Act the Tribunal prohibits the disclosure to the Applicant of the contents of those documents that the Tribunal has held are exempt in this matter.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  25 January 2001
Date of Decision  18 June 2001
Representative for the Applicant              Self-represented
Counsel for the Respondent  Mr G Farmer