Pascoe and Civil Aviation Safety Authority (Freedom of information)
[2018] AATA 1273
•4 May 2018
Pascoe and Civil Aviation Safety Authority (Freedom of information) [2018] AATA 1273 (4 May 2018)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2017/4472
Re:Andrew Pascoe
APPLICANT
AndCivil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment
Date:4 May 2018
Place:Sydney
The Tribunal orders that document 38 be released to the applicant on or after 35 days from this date. The reviewable decision is otherwise affirmed.
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Deputy President B W Rayment
CATCHWORDS
FREEDOM OF INFORMATION – exemption claims – categories of exemption – legal professional privilege – operations of agency exemption under s 47E(d) – personal information exemption – decision to limit stay releasing document – decision otherwise affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Civil Aviation Authority 1988 (Cth) – s 74
Freedom of Information Act 1982 (Cth) – ss 3, 3A, 11A, 11B, 42, 47E(d), 47F, 55, 58Privacy Act 1988 (Cth) – s 4
CASES
Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 53
Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237
Ekinci and Ors v Civil Aviation Safety Authority [2014] AATA 424
Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 210 CLR 49
Harris v Australian Broadcasting Corporation (1984) 1 FCR 150
Taggart and Civil Aviation Safety Authority (Freedom of Information) [2016] AATA 327Waterford v Commonwealth [1987] HCA 25; (1987)163 CLR 54
REASONS FOR DECISIONDeputy President B W Rayment
4 May 2018
These are Freedom of Information proceedings in which the parties are agreed that the only issues requiring determination are the exemption claims made by the respondent. The decision of the Australian Information Commissioner of 7 July 2017 is the reviewable decision. There is no issue between the parties relating to the scope of the request or the searches which have been conducted.
In these reasons, I will refer to the Freedom of Information Act 1982 as the Act.
There are three categories of exemption claimed: legal professional privilege, operations of agency exemption claimed under s. 47E(d) of the Act (an exemption which the agency seeks to support, in the alternative, as revealing personal information entitled to conditional exemption under s. 47F of the Act); and a personal information exemption.
Legal professional privilege is a ground of exemption under s. 42 of the Act. The claim needs to be understood against the background that there were earlier proceedings in this Tribunal and in the Federal Court involving Mr Ekinci, in which the present applicant was a witness. Mr Pascoe’s evidence was the subject of adverse comment by the Tribunal at first instance. See Ekinci and Ors v Civil Aviation Safety Authority [2014] AATA 424 at [49]. The Full Federal Court remitted the case for re-determination on other grounds: See Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180.
The search conducted by the respondent captured some documents related to the Ekinci proceedings, although those proceedings do not appear on their face to be the focus of the applicant’s FOI request. Nevertheless, Mr Pascoe’s complaint about Mr Holstein was coincident in time with the respondent’s investigations concerning Mr Ekinci and investigation was conducted by the respondent as to whether training given by Mr Ekinci to Mr Pascoe involved a breach by Mr Ekinci of the conditions of a stay granted to Mr Ekinci by the Tribunal.
The relevant categories of legal professional privilege are litigation privilege and advice privilege. The litigation privilege relates to the Ekinci proceedings. The lawyers involved in each case were in-house CASA lawyers, including Mr Rule, the respondent’s Manager –Legal Branch.
The test for common law legal professional privilege does not exclude government lawyers advising or acting in litigation for government. In Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 it was decided by Mason, Wilson and Deane JJ that legal professional privilege attaches to confidential professional communications between government agencies and their salaried legal officers undertaken for the sole purpose of seeking or giving legal advice or in connection with anticipated or pending litigation. Later, the High Court adopted the dominant purpose test in place of the sole purpose test: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 210 CLR 49. In Waterford, Mason and Wilson JJ said of government lawyers: “Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment” (163 CLR at 62). In the course of his judgment, Deane J referred to the importance of “full independence” of the independent lawyer.
The advice in question was that of the Australian Government solicitor and of officers of the Attorney-General’s department. Brennan J, who wrote reasons rather more conservative than those of Mason, Wilson and Deane JJ on the privilege issue, thought that the necessary independence appeared from that fact.
The High Court did not itself nominate the circumstances in which, in the case of other government departments, evidence of independence might be necessary.
Mr J.A. Rule was, at the relevant time, the Manager-Legal Branch of the respondent. He was then the holder of a practising certificate issued by the ACT Law Society. He was employed by the respondent within the Legal and Regulatory Affairs Division. He gave evidence before me intended to demonstrate that he provided legal services to the respondent with independence.
It so happens that similar evidence was given by Mr Rule before Deputy President Forgie in Taggart and Civil Aviation Safety Authority (Freedom of Information) [2016] AATA 327 and Deputy President Forgie was satisfied that advice given by Mr Rule and other in-house lawyers employed by CASA had the necessary degree of independence.
Mr Rule’s evidence is to the effect that he holds the degrees of Bachelor of Arts and Bachelor of Laws from the Australian National University conferred on 8 September 2000 and that he was admitted to practice as a solicitor in the ACT Supreme Court on 14 December 2001. At each relevant year and at the present time, he has been the holder of a practicing certificate issued by the ACT Law Society and his name is also entered in the Register of Practitioners of the High Court of Australia.
Since 1 January 2018, he has been the Manager of the Litigation, Investigations and enforcement Branch within the Legal and Regulatory Affairs Division of CASA. In the relevant period from 24 June 2013 to 3 July 2014, he was the manager of the Legal Branch, part of the Legal Services Division. The Legal Branch had the following functions:
(a)providing legal advice to staff of CASA in relation to all regulatory, administrative, corporate and other legal issues affecting its day to day operations;
(b)representing CASA in proceedings before Courts, Tribunals or Commissions in which it is a party or seeks to be a party;
(c)supervising the conduct of litigation conducted on CASA’s behalf by its insurers;
(d)managing compliance with CASA’s obligations under the Freedom of Information and Privacy Acts; and
(e)drafting legislative and non-legislative instruments which CASA is empowered to make under its governing legislation.
The Legal Services Division was the sole and exclusive source from or through which legal advice in in all CASA matters was to be sought and obtained.
Mr Rule reported in that period to CASA’s General Counsel, Mr Anastasi, who was also the Executive Manager of the Legal Services Division. Mr Anastasi held a Diploma of Law conferred by the University of Sydney and had an unrestricted practising certificate issued by the Law Society of NSW. In turn, he reported to the Director of Aviation Safety, who is appointed under s. 74 of the Civil Aviation Act 1988 to manage CASA.
During the relevant period, he was not subject to direction by any person other than the general Counsel Mr Anastasi.
The advice and legal services provided to CASA relevant to the claims for exemption were provided by Mr Rule, Mr Anastasi and Mr Anthony Carter, a Principal Lawyer appointed by Mr Rule to handle the Ekinci proceedings in this Tribunal and in the Federal Court. Mr Carter appeared before me on this review.
That evidence satisfies me that the various CASA lawyers had the necessary degree of independence.
Mr Rule’s affidavit shows that the relevant communications were made for the dominant purpose of giving or receiving legal advice or for conducting actual or anticipated litigation, and the documents on their face tend to confirm that fact. Mr Rule’s affidavit also states that at no time has the respondent waived privilege in the documents.
The respondent was obliged to have regard to the guidelines issued by the Australian Information Commissioner in relation to the claiming of privilege, and in turn those guidelines specified that privilege ought not to be claimed unless disclosure of the documents would occasion real harm. Such a matter is not to be reviewed in this Tribunal in accordance with s. 58 of the Act. S.58 provides as follows:
(1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
(2) Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
(6) The powers of the Tribunal under this section extend to matters relating to charges payable under this Act in relation to a request.
A similar question arose before the Federal Court at first instance and on appeal in Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 53 and [2004] FCAFC 237. The legislation was then somewhat different, in that the Office of the Information Commissioner did not then exist and s. 55 of the Act was in different terms.
In Bennett’s case, attention had been given by the agency to a Cabinet decision of 1986 and to a Memorandum from the permanent head of the Attorney-General’s department stating that privilege should not be claimed unless real harm would flow from the release of the document. Both at first instance and on appeal it was held that the AAT was not able to review a decision that real harm would ensue if the document were released. Neither the Cabinet decision nor the Memorandum was made under the Freedom of Information Act.
In the Full Court, Gyles J with whom Tamberlin J agreed said at [71]-[72]:
[71] It is argued that s 58(1) creates two separate heads of power — namely the power:
(i) to review any decision that is made by an agency in respect of the request; and
(ii) to decide any matter in relation to that request which, under the Act, could have been decided by the agency.
It is submitted that the first power is not confined to a decision ‘under the Act’ but rather relates to any decision in respect of the request. It is submitted that an intermediate decision along the way to the ultimate decision is a threshold question as to whether to claim exemption for a document. It is thus submitted that the decision to claim the exemption based upon legal professional privilege can be reviewed as such without reviewing the validity of the claim itself. There were further submissions as to how that issue might be approached.
[72] It is not at all clear to me that this point was raised before the Tribunal. In any event, in my opinion, it is unsound. The decision of the primary judge on the point discloses no error. Section 58(1) is typical of provisions for review of an administrative decision by a second body, and makes clear that the reviewing body stands in the shoes of the first for the purpose of carrying out the functions committed to it on review. It does not expand those functions. Furthermore, the construction that is advanced is inconsistent with the policy reflected in s 58(2) of the Act. However s 58(1) is construed, proceedings in the Tribunal authorised by it would be proceedings under the Act and caught by s 58(2). Furthermore, it would be unusual for statute to provide for review of an intermediate decision in such an indirect way (cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321).
Thus, the Full Court said two things: (1) that under s. 58(1) the AAT may not review any decision not taken under the Act; and (2) that in any event, the AAT could not decide to release an exempt document.
For both those reasons, I cannot review the decision of the agency not to produce the documents in respect of which legal professional privilege in the light of the Information Commissioner’s guidelines. That decision essentially involved the waiver of privilege, and the agency did not have that power “under the Act”, although it may be true to say that s. 42(2) recognises that the agency has such a power.
The expression “under the Act” means “pursuant to the Act” or “by virtue of the Act”. All the Act mandates is that in deciding whether, amongst other things, to waive or not to waive privilege, the agency must have regard to what appears in the Information Commissioner’s guidelines. Section 42(2) proceeds on the basis that it is within the competence of an agency to waive privilege, but does not confer that power, which is possessed independently of the Act. Section 3A of the Act specifically states that the power to release an exempt document does not arise under the Act. It provides as follows:
(1) This section applies if a Minister, or an officer of an agency, has the power to publish, or give access to, information or a document (including an exempt document) apart from under this Act.
Publication and access powers not limited
(2) The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power:
(a) in the case of the power to publish the information or document--despite any restriction on the publication of the information or document under this Act; and
(b) in the case of the power to give access to the information or document--whether or not access to the information or document has been requested under section 15.
In any event, the release of the document at the instance of the AAT, in substitution for any decision of the agency not to waive privilege would amount to a decision by the AAT that privilege should be waived, and that decision would not be open to the Tribunal because of s. 58(2) in the light of Bennett.
There is nothing to suggest that the respondent did not have regard to the Information Commissioner’s guidelines or that it did not consider the “real harm” issue. Presumably, evidence has not been led of that fact before me because it is not open to the Tribunal to review the real harm issue. Nor is it necessary for this review to check compliance with the Information Commissioner’s guidelines by the respondent, and no issue about that matter was raised by the applicant, who did not seek to cross-examine Mr Rule.
I am satisfied, having examined the relevant documents, that the claim for legal professional privilege is properly made. In this respect I am in agreement with the Australian Information Commissioner
Exemption under s. 47E(d) and personal information exemption
Certain documents were decided by the Information Commissioner to be conditionally exempt under s. 47E(d) of the Act. In this respect, the respondent seeks, in the alternative, to uphold the exemption claimed on the basis the personal privacy exemption referred to in s. 47F of the Act. Each claimed exemption requires consideration of the public interest considerations adverted to in s. 11A(5) and s.11B of the Act.
Sections 47E provides so far as relevant that a document is conditionally exempt if its disclosure under the Act would, or could reasonably be expected to do all or any of the following: . . .
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
Mr Rule’s affidavit asserts as follows in relation to the documents in question:
[38] By reason of section 47E(d) of the FOI Act, each of the following documents are of such a nature that its disclosure would or could reasonably be expected to have a substantial adverse effect on CASA’s operations in carrying on its regulatory function: documents numbers: 5-6, 12-13, 21, 41-43, 48.
[39] The documents relate to CASA’s handling of complaints received from members of the public and other regulated persons (in this instance, specifically, Mr Holstein). They record Mr Holstein’s communications with CASA in the context of the resolution of that complaint. The documents also record other communications between Mr Holstein and CASA in which assistance or intelligence is provided by him to CASA in relation to Mr Ekinci and Mr Pascoe.
[40] During my employment as a lawyer with CASA, I have been directly responsible for or otherwise involved in:
(i) The conduct of criminal investigations into allegations of contraventions of the aviation legislation;
(ii) enforcement related decision-making processes involving the exercise of CASA’s enforcement powers to redress safety risks caused by unsafe and unlawful conduct;
(iii) The conduct of litigation relating to decisions made by CASA in such enforcement processes;
[41] In my experience, it is vital for CASA to have uninhibited access to sources of information and intelligence about unsafe and unlawful behaviour and practices in the aviation industry. This is fundamental to CASA’s ability to effectively perform its safety related functions and duties by identifying and eliminating such behaviours and practices. Many of the investigations and enforcement related decision making processes referred to above have been initiated following the unsolicited receipt of industry intelligence.
[42] Similarly, CASA’s discharge of these safety relevant functions can be entirely frustrated or made more difficult if industry participants do not engage openly and frankly with CASA when it is investigating complaints and allegations which it receives.
[43] The Australian aviation industry is quite small and, in my experience, industry participants are generally reluctant to come forward with intelligence about unlawful and unsafe conduct or behaviour on the part of others unless they can remain anonymous in the process. In my experience, informants tend to express concerns that, if their name comes to be associated with a particular complaint or other intelligence provided to CASA, then this will affect their reputation and subsequent employment opportunities in the industry. The other concern expressed by informants who seek anonymity, is the fear of personal reprisals from the person or persons who are the subject of the complaint or intelligence. I have personally been involved in a number of matters where industry participants have been prepared to provide information to CASA, but have refused to provide sworn statements to CASA or to otherwise have their names associated with that intelligence on the basis of the concerns referred to above.
[44] On the basis of my experience, I consider that there is a reasonable basis for concern that, if persons became aware that their identities, and the information that they supplied CASA about safety concerns were routinely released under the FOI Act, this would make people less likely to come forward with their concerns in the first place. This would adversely affect CASA’s ability to access a vital source of intelligence about safety issues.
[45] Similarly, as noted above, where CASA investigates complaints it expects and relies upon the full and frank cooperation of the subjects of those complaints in order to resolve those complaints swiftly in the interests of safety.
[46] On the basis of my experience, I consider that there is a reasonable basis for concern that persons will be less open and frank with CASA (and may not cooperate at all) if it becomes known that the records of the assistance that they provided to CASA in the resolution of a complain, may routinely be released by CASA (including to the person who made the complaint) in answer to applications made under the FOI Act. I am aware that industry participants, including major operators, have openly expressed reservations about providing documentation to CASA recording their regulatory activities for fear that, once the documentation is in the possession of CASA, it may be accessed by third parties through the FOI process.
The concerns expressed in Mr Rule’s affidavit are expressed at a general level, with regard to other complaints made to CASA whose informants are concerned to maintain their anonymity. The main concerns of CASA are with safety. The concern of CASA is that if the detail of intelligence provided to it is disclosed under the FOI legislation, industry participants may be reluctant to come forward with information about unlawful and unsafe conduct or behaviour. Disclosure under the Act equips the applicant with an ability to make public disclosure of the documents provided to him or her. If such disclosure were made it could reasonably be expected to bring about the very results Mr Rule is concerned to avoid, that is, make potential informants reluctant to bring matters unlawful and unsafe conduct to the attention of the regulator, given that the industry itself is quiet a small one, because of concerns that information about complaints may be made publicly available under FOI legislation.
Similarly, Mr Rule’s affidavit makes the point that Mr Holstein has communicated to CASA information about Mr Pascoe and Mr Ekinci, and information about those communications would be disclosed by releasing the documents in question. That kind of release of information could have a similar consequence to that which CASA is concerned to avoid.
Mr Coombes submitted to me, on behalf of the applicant that, Mr Pascoe wants the documents in question relating to his own complaint and desires to satisfy himself that the compliant was properly dealt with and joined issue with submissions made by CASA which relied upon a decision of DP Hack SC in Snell v Civil Aviation Safety Authority. I accept the submission of Mr Coombes that Snell deals in many respects with issues which are the converse of those arising here, in that Mr Snell was the subject of the complaint and desired to see documents which dealt with the complaint against him including the complaint itself. That raised issues about the need to ensure that complainants were not discouraged by the release of documents under the Act from bringing proper complaints forward.
Notwithstanding the submissions made on behalf of the applicant, I am satisfied that the concerns referred to in Mr Rule’s affidavit are justified, especially because the main concern of CASA is with matters of safety, and the sources of information upon which it relies in part will assist that object. Mr Rule describes the concern as “vital” to information gathering and fundamental to CASA’s ability effectively to perform its functions and duties. It seems to me that the reasons expressed in Mr Rule’s affidavit show that the disclosure of each of the documents could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the agency.
It should be mentioned that CASA does not seek to keep its deliberations secret because of any concern that its decision-making might be criticised publicly, and such a consideration may not be consistent with the general objects of the FOI legislation, subject to what is provided by s. 47C of the Act. See also the discussion of the predecessor of that provision in Harris v Australian Broadcasting Corporation (1984) 1 FCR 150. No conditional exemption is claimed by CASA under s. 47C of the Act in these proceedings.
The conditional exemption under s. 47E is correctly claimed in principle in my opinion. A consideration of the documents themselves suggests to me that with the exception of the portions of documents 12 and 13 highlighted in yellow, the exemption is properly claimed.
I invited, in confidence, further submissions on this matter from the respondent.
I have examined the documents. As to documents 12 and 13 highlighted in yellow, I do not think that they fall within the exemption claimed on their face.
For those excerpts, I have considered the alternative case made by CASA that they contain personal information concerning Mr Holstein. The expression “personal information” has the same meaning as in the Privacy Act 1988 by s. 4 of the Act unless the contrary intention appears, and no contrary intention does appear. The Privacy Act defines that expression widely to include any information or opinion about an identified or identifiable individual. The conditional exemption is available if the disclosure is “unreasonable”, a consideration to which s. 47(2) is relevant. That sub-section provides:
(2) Subsection (1) does not have effect in relation to a request by a person for access to a document:
(a) by reason only of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or
(b) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation.
The information is not well known or publicly available. Mr Pascoe has not been informed about the resolution by CASA of his complaint except in general terms.
In my opinion, for reasons submitted by CASA in confidential submissions made to the Tribunal by email, the exemption originally claimed by CASA in relation to these documents, that they contain personal information, is correctly claimed.
It is next necessary to consider the public interest in relation to the documents conditionally exempt under s. 47E(d) and in relation to that part of documents 12 and 13 for which conditional exemption is claimed on the basis that they contain personal information.
As to the documents conditionally exempt under s. 47E(d), it seems to me that the considerations mentioned in Mr Rule’s affidavit repeated in these reasons at [32] also show that despite the fact that the objects set out in s. 3 of the Act may be promoted by the release of the documents, the same matters as I have drawn from Mr Rule’s affidavit and set out in [33]-[35] show that on balance, access to the documents at this time would on balance, be contrary to the public interest, within the meaning of s. 11A(5) of the Act.
As to those parts of documents 12 and 13 which are conditionally exempt as personal information, the individual in question is not a CASA employee or otherwise employed by the Commonwealth, and does not consent to the release of the relevant matter, and although the release of the relevant parts of the documents might, in a general sense, advance the objects mentioned in s. 3 of the Act, the release of sensitive personal information of a person not employed by the Commonwealth who apparently volunteered the information in question to CASA would, on balance, be contrary to the public interest because it may discourage cooperation by persons such as the individual.
Irrelevance exemption
I have examined each of the documents claimed to be irrelevant to the applicant’s request and I uphold that claim except with respect to document 38, which appears to me sufficiently to identify that document as one within the request. Document 7.36 in the s. 37 documents seems to explain why Ms Rhonda Phillips was identified as the complainant rather than her husband, the present applicant and the complaint appears to be Mr Pascoe’s complaint.
I have considered whether the fact that before the Information Commissioner, the relevant part of the original decision was not put in issue by the applicant, it is open to me when reviewing the Information Commissioner’s decision to allow access to this document. I have in fact been provided with the document in its unredacted form in confidential session, and one of the powers of the Information Commissioner would have been to allow the applicant to withdraw any concession made before him that the claimed exemption was correct. In accordance with s. 43(1) of the Administrative Appeals Tribunal Act, I am provided with the same power on review.
I indicated during the argument, I will order a limited stay of my proposed order releasing document 38 in case CASA wishes to appeal from this part of my orders, and to enable it to move the Federal Court for a stay in that event. The reviewable decision is otherwise affirmed.
50.
51. I certify that the preceding 49 (forty- nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment
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Associate
Dated: 4 May 2018
Date of hearing: 19 March 2018 Counsel for the Applicant: Mr A Coombes Solicitors for the Applicant: Mr P Duffy Respondent: In person Solicitors for the Respondent: Mr A Carter, Civil Aviation Safety Authority
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