Preston v Chief Executive, Casino Control Authority; Star City Pty Limited & Tabcorp Holdings Ltd v Chief Executive, Casino Control Authority

[2003] NSWADT 165

Set aside by Appeal: Set adside on appeal on December 2003

CITATION:	Preston v Chief Executive, Casino Control Authority; Star City Pty Limited & TABCORP Holdings Ltd v Chief Executive, Casino Control Authority [2003] NSWADT 165 revised - 10/07/2003
DIVISION:	General Division
PARTIES:	APPLICANTS Alexander Preston Star City Pty Limited & TABCORP Holdings Ltd RESPONDENT Chief Executive, Casino Control Authority
FILE NUMBER:	023276, 023296
HEARING DATES:	09/04/2003
SUBMISSIONS CLOSED:	04/09/2003
DATE OF DECISION:	07/11/2003
BEFORE:	Higgins S - Judicial Member
APPLICATION:	access to documents - business affairs - access to documents - confidential material - access to documents - secrecy provisions - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - secrecy provisions
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Casino Control Act 1992 Freedom of Information Act 1989
CASES CITED:	St Vincent Welch v Chief Executive Officer, Casino Control Authority [2201] NSWADT 89 at [20]Re S and Commissioner of Taxation (No 2) (1993) 25 ATR 1015 at 1024Re T and Queensland Health (1994) 1 QAR 386 at 391McCabe v Electoral Commission, State Electoral Office [2003] NSWADT 24 at [16]Commissioner of Police v District Court of New South Wales (Perrin's Case)(1993) 31 NSWLR 606Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253Saleam v Director General, Department of Community Services and Ors [2202] NSWADT 41, at [38]Re Saxon and Australian Maritime Authority (unreported, AAT, Cth, 19 June 1995 at 25Schlebaum (No 3) v Director General, Department of Community Services and Anor [2002] NSWADT 128, at [54 - 57]Re Maher and Attorney-General's Department (N0 2); CRA Ltd and Mary Kathleen Uranium Ltd (1986) 13 ALD 98Ryder v Booth [1985] VR 870 at 872 Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 341Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 338Wiseman v Commonwealth, unreported, Federal Court, 24 October 1989Mitsubishi Motors Australia Ltd v Department of Transport (1986) 68 ALR 626Handicapped Children's Centre, NSW v Director, Department of Ageing Disability and Home Care [2003] NSWADT 116)
REPRESENTATION:	APPLICANTS Mr Preston in person K Eastman, barrister for Star City Pty Limited & TABCORP Holdings Ltd RESPONDENT N Sharp, barrister
ORDERS:	1 The decision of the Chief Executive of the CCA in respect of the first and second Cripps reports, and document 36.2 and 42.1 is affirmed ; 2 The decision of the Chief Executive of the CCA in respect of document 6.1, 29.1, 9.2 and 9.3 is varied. An edited version of each document is to be released, with deletion of the relevant exempt matter, within 30 days of this decision; 3 The decision of the Chief Executive of the CCA in respect of document 13.1 is not affirmed, and Mr Preston's request in respect of this document is remitted to the CCA for further consideration, in consultation with Star City, in respect of deletions of the relevant exempt matters. Within 30 days of this decision, an edited version of the document is to be released with the deletion of the relevant exempt matters; 4 Liberty to the parties to apply within 14 days in respect of the terms of Order 3; 5 The decision of the Chief Executive of the CCA in respect of document 36.3 is set aside and in substitution of that decision a decision is made to grant access to that document; 6 A decision in respect of costs is to be made on the papers, subject to the parties being given liberty to submit written submissions within 14 days of this decision.

1 In support of these reasons of decision a further confidential reason for decision is to be released only to the respondent in both applications (the Chief Executive of the Casino Control Authority) and the applicant in proceedings No 023296 (Star City Pty Limited and TABCORP Holdings Limited). The areas in which further confidential reasons for decision have been given are identified in this decision by the words “(confidential)” in the relevant paragraphs.

BACKGROUND

2 On 29 July 2002, Mr Preston wrote to the Casino Control Authority (“CCA”), pursuant to the Freedom of Information Act, 1989 (“FOI Act”), requesting access to the following documents:

“a) All or any statement, document in print form, audio recording, audio types or any other form that have been given to your department or any of your staff or inquiry undertaking by the CCA in relation to me and issues related to me, by any individual, staff at Star City Casino, casino managers or staff or other organisations or individuals.

b) Star City Casino prepared a number of reports after conducting internal investigations undertaken by them or at the request of TabCorp (Gerrold Cripps, casino internal surveillance report and act). By Casino’s voluntary act or under Casino Control Authority demand, your department have been given copies of these reports”.

3 On receiving Mr Preston’s request, the CCA, as it was required to do, identified numerous documents that came within the terms of this request. Some of these documents appeared to the CCA to relate to the business affairs of Star City Pty Ltd (“Star City”) and on 16 August 2002, the CCA wrote to Star City seeking its views about the disclosure of these documents to Mr Preston.

4 On 28 August 2002, Star City advised CCA that it objected to the release of a certain number of the documents on which its advice had been sought on the basis of the business affairs exemption contained in Clause 7 of Schedule 1 of the FOI Act. Star City also requested copies of all the remaining documents that the CCA had identified as coming within the terms of Mr Preston’s request.

5 On 2 September 2002, the CCA determined to release certain documents to Mr Preston and access was denied to the remaining documents on the grounds that they, or a part of them, were exempt under the FOI Act. Mr Preston requested an internal review and on 10 October 2002 the CCA advised Mr Preston and Star City of the outcome of that review.

6 Shortly before the completion of the internal review, the CCA located an additional document falling within Mr Preston’s request, namely, a report referred to as the Cripps report dated November 2001 (“the second Cripps report”). On finding the report the CCA wrote to Star City seeking its views as to whether this document should be disclosed to Mr Preston. On 15 October 2002, Star City wrote to CCA advising it that Star City considered the second Cripps report as being exempt from disclosure.

7 On 23 October 2002, the CCA wrote to Mr Preston advising him that the CCA would grant him conditional access to the second Cripps report, but as a result of Star City’s objection, the CCA would defer access to the report to afford Star City the opportunity to seek review. On the same day the CCA wrote to Mr Preston advising that a further document had been located which fell within his request, namely, a further Cripps report dated November 2000 (“the first Cripps report”). The CCA also advised Star City that it had located the first Cripps report and sought its views as to whether the document should be disclosed or not.

8 On 1 November 2002, Star City advised CCA that it considered that the first Cripps report should be exempt from disclosure. The CCA then wrote to Mr Preston advising him that it would grant conditional access to the first Cripps report, but as a result of Star City’s objections would defer access to the report in order to enable Star City the opportunity to seek review. Reasons for decision were subsequently sought by Star City, who also then sought an internal review of that decision.

9 On 29 November 2002, the CCA advised Star City that it had completed the internal review and that it had determined “on balance” that access to the two Cripps reports be refused. Mr Preston was also provided with a copy of the CCA’s determination.

10 On 6 December 2002, Star City filed an application for review of the CCA’s decision of 10 October 2002 and 1 November 2002 to grant conditional release of the two Cripp’s reports and release of other documents to Mr Preston. Such an application is commonly referred to as a reverse FOI application. Subsequently, Star City joined TABCORP Holdings Ltd (“TABCORP”), its controlling entity, as an applicant to its application.

11 On 17 December 2002, Mr Preston filed an application for review of the CCA’s decision in respect of the conditional release of the two Cripps reports and the documents identified in the CCA’s internal review decision of 10 October 2002.

12 The Tribunal’s jurisdiction to hear both applications arise from s.53(1) of the FOI Act, 1989 and s.38 of the Administrative Decisions Tribunal Act, 1997.

DOCUMENTS IN ISSUE

13 Prior to the hearing of the matter, Mr Preston confined his application to 13 of the documents that were in dispute, two of which were the same. At the hearing of the matter, the CCA and Star City agreed that access be granted to Mr Preston in respect of three of the documents. Accordingly, only ten documents were at issue, including the two that were the same. Accordingly, the documents at issue were as follows:

· First Cripps report dated November 2000.

· Second Cripps report dated November 2001.

· Document 6.1: letter from J. Hoggart (Star City) to L. Le Compt (CCA) dated 6/11/97. Document 29.1 is the same document.

· Document 9.2: extract of handwritten notes dated 1/2/97 and 2/2/97 from unknown sources.

· Document 9.3: handwritten notes from person unknown.

· Document 13.1: patron transaction reports: A. Preston.

· Document 36.2: letter from B. Brown (Star City) to L. Le Compt (CCA) - dated 4/5/99.

· Document 36.3: notes for submission of Star City on Motion to strike out - dated 30/4/99.

· Document 42.1: letter from B. Brown (Star City) to L. Le Compt (CCA) dated 10/6/99.

RELEVANT LAW

FOI Act

14 S.5(2)(b) of the FOI Act confers on each member of the public:

“…a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government.”

15 The government agency on whom a request for access to documents has been made is required to consider the application and is then required to give access to the documents being sought unless it can establish that the document is an exempt document under one or more of the provisions contained in Schedule 1 of the FOI Act. The onus of proof lies on the agency to establish that the exemption applies and the denial of access is justified (see s.61 of the FOI Act).

16 Where an application is made for access to documents that affect the business affairs of a third person (i.e. a person other than the access applicant), s.32 of the FOI Act provides that the government agency is required to consult with that third person, prior to giving access to the document. That section, in so far as it is relevant, provides as follows:

“s 32.(1) This section applies to a document that contains:
(a) …

(b) information (other than trade secrets) that has a commercial value to any person; or

(c) information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any person.

(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 7 of Schedule 1.

(3) …”

17 The business affairs exemption is contained in cl. 7 of Schedule 1 of the FOI Act. So far as is relevant to this application, this clause provides as follows:

“ Documents Affecting Business Affairs

Cl.7.(1) A document is an exempt document:

(a) …

(b) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person; and

(ii) could reasonably be expected to destroy or diminish the commercial value of the information; or

(c) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or any other person; and

(ii) could reasonably be expected to have an unreasonably adverse effect on those affairs or to prejudice the future supply of such information to the government or to any agency.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.

18 Other exemptions contained in Schedule 1 of the FOI Act include the following:

Cl. 6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

Cl. 12 Documents the subject of secrecy provisions

(1) A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act, whether or not the provision that creates the offence is subject to specified qualifications or exceptions.

(2) A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is being made, would constitute such an offence.

Cl. 13 Documents containing confidential material

A document is an exempt document:

(a) if it contains matter the disclosure of which would found an action for breach of confidence, or

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.

19 The Casino Control Act, 1992 (“CC Act”) provides for the establishment of one casino and the control of its operations. The objects of the CC Act are set out in s. 4A, which includes: “(a) ensuring that the management and operation of a casino remain free from criminal influence or exploitation, (b) ensuring that gaming in a casino is conducted honestly, and (c) containing and controlling the potential of a casino to cause harm to the public interest and to individuals and families”.

20 Section 133 of the CC Act establishes the Casino Control Authority (“the CCA”), whose objects are to maintain and administer systems for the licensing, supervision and control of a casino for the purposes specified (s. 140). This includes ensuring that the management and operations of the casino remain free from criminal influence and exploitation and that gaming conducted at the casino is conducted honestly. The CCA is vested with specified functions (s.141 CC Act), which are a reflection the objectives of the CC Act. The Act also vests various powers on the CCA so that it can fulfil its functions and meet its objectives and those of the CC Act.

21 Part 3 of the CC Act makes provision for the supervision and control of casino operators. Section 31 of the CC Act provides that the CCA is to investigate and provide regular reports (every three years) to the Minister as to whether or not the casino operator is a suitable person to continue to give effect to the casino licence under the Act and it is in the public interest that the casino licence should continue in force. As part of its investigative responsibilities, s.32 of the CC Act enables the CCA, by notice in writing, to require the casino operator or a person who is directly or indirectly associated with the operator, to provide information.

22 Sub-section 148(1) of the CC Act prohibits a person, who acquires information in the exercise of functions under the Act, from directly or indirectly, making a record of the information or divulging the information to another person, except in the exercise of functions under the Act. Sub-section 148(2) prescribes some exceptions to this general secrecy requirement, which are not relevant to these applications.

23 Sub-section 148(3) of the CC Act, prohibits a person from being required to produce in any Court any document or other thing that has come into the person’s possession, custody or control by reason of, or in the course of, the exercise of the person’s functions under the Act. The sub-section also prohibits a person being required to divulge to any Court any information that has come to the person’s notice in the exercise of the person’s functions under the Act. Sub-sections 148(4), (5) and (6) contain exceptions to the prohibitions set out in sub-section 148(3), which are not relevant to these applications.

24 Sub-section 148(7) of the CC Act refers to the disclosure of documents pursuant to the FOI Act. That sub-section, so far is relevant, provides as follows:

“s.148(7) This section does not prevent a person being given access to a document in accordance with the Freedom of Information Act, 1989, unless the document:

(a) contains matter the disclosure of which could reasonably be

expected to do any of the following:

(i) prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case,

(ii)…,

(iii) prejudice the effectiveness of any law or method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or

(b) is a document the disclosure of which would disclose any of the following information:
(i) …,

(ii) …,

(iii) information concerning the system of internal controls and administrative and accounting procedures for a casino”.

(emphasis added)

25 Star City and the CCA relied on affidavit evidence, some of which were tendered on a confidential basis. The CCA tendered into evidence, on a confidential basis, a copy of the documents that are the subject of the applications and both parties relied on written submissions, some of which were confidential. The confidential affidavits, documents and written submissions were all tendered pursuant to s. 55 of the FOI Act. Star City and the CCA agreed between themselves that their respective confidential material was not confidential amongst themselves but was confidential in so far as Mr Preston was concerned.

26 In respect of this confidential material the Tribunal made an order pursuant to s. 75(2) of the Administrative Decisions Tribunal Act, 1997 prohibiting the publication of the contents of this material other than as agreed between the CCA and Star City. Part of the hearing was also held in confidence, in the absence of Mr Preston, pursuant to s. 55 of the FOI Act. The Tribunal also made an order pursuant to s. 75(2) of the Administrative Decisions Tribunal Act, 1997 that this part of the hearing be conducted in private.

27 Mr Preston relied on documents tendered into evidence and he also provided written submissions.

28 The non confidential affidavit tendered by Star City was an affidavit of William Clifford Brown sworn on 31 March 2003. Mr Brown is the General Manager, Legal Asset Protection of Star City. In his affidavit, Mr Brown states that as part of the day to day running of its business, Star City provides documents and information to the CCA both voluntarily and as compelled pursuant to the CCA exercising its functions under the CC Act. He also makes the following statements:

“Star City Casino consists of a main gaming floor, which is open to all members of the public and a private gaming room called the Endeavour Room.

Patrons of the casino, and especially members of the Endeavour Room, expect that they can enjoy Star City’s facilities in strict privacy and are entitled to expect that Star City keep details of their presence and behaviour at Star City confidential. Any disclosure of information which evades this expectation of privacy will have a negative impact on Star City’s confidence and reputation in the mind of existing and potential patrons”.

29 The CCA tendered into evidence a non confidential affidavit sworn by Brian Edward Farrell on 20 March 2003. Mr Farrell is the Chief Executive of the CCA and his main responsibilities are those outlined in s.138 of the CC Act. In his affidavit Mr Farrell stated that the CC Act provides a number of powers by which the CCA can compel Star City to provide information to it, including sections 29, 32, 111, 131 and 149. He also states that Star City voluntarily discloses some information and documents to the CCA, including by agreement.

REASONS AND DECISION

30 Before considering each of the documents that are in dispute it is convenient to first deal with some of the general principles that apply to the exemptions mentioned above and which are relied on by the CCA and Star City. As I have already stated, the onus is on the CCA to satisfy the Tribunal that the particular exemption it has relied on, in refusing access to a particular document, does in fact apply. Where there is disagreement between the CCA and Star City as to whether a particular exemption applies, the onus is on Star City if the CCA is of the view that the exemption does not apply. However, as outlined below, Star City is limited in respect of the exemptions it may rely for the purpose of its application.

Casino Control Act: secrecy provision – s. 148

31 In her submissions, Ms Sharp on behalf of the CCA, submitted that s. 148(7) of the CC Act provided for a limited right of access to documents under the FOI Act. In a sense she is correct, but the limitation arises in respect of the exemptions that apply under the CC Act. The first thing to notice is that the sub-section expressly preserves the right of any person to seek access of documents held by the CCA under the FOI Act. On receiving such a request the CCA is bound by each of the provisions of the FOI Act. Refusal of access is then dependent on the exemptions contained Schedule 1 of the FOI Act and in paragraphs 148(7)(a) and (b) of the CC Act being satisfied. If the document comes within one or more of the exemptions contained in Schedule 1 of the FOI Act, the CCA has a discretion as to whether or not to give the access applicant access to the document (s. 25(1)(a) FOI Act). However, where a document comes within the terms of paragraphs 148(7)(a) or (b) of the CC Act, Parliament has given the CCA no discretion as to whether to give access to the document or not, it must refuse access (see St Vincent Welch v Chief Executive Officer, Casino Control Authority [2201] NSWADT 89 at [20]).

32 There is some overlap between the provisions contained in paragraph 148(7)(a) of the CC Act and cl. 4 of Schedule 1 of the FOI Act, otherwise the exemptions contained in paragraph 148(7)(b) of the CC Act have no direct equivalent in the FOI Act although, in some instances, they may fall under one or more of the general exemptions. Accordingly, the limitation on access arises because there is a mandatory refusal for certain classes of documents.

33 In this case the CCA relies on the exemptions contained in sub-paragraphs 148(7)(a)(i) and (iii) and (b)(iii) of the CC Act. As mentioned above, the exemptions contained in sub-paragraphs 148(7)(a)(i) and (iii) are in similar terms to those contained in cl. 4(1)(a) and (e) of Schedule 1 of the FOI Act. However, sub section 148(7) of the CC Act does not include provisions similar to those contained in sub clause 4(2) to (4) of the FOI Act. This means that public interest considerations are of no relevance in determining whether a document is exempt under sub paragraphs 148(7)(a)(i) and (iii) of the CC Act is exempt.

34 However, in determining whether a document comes within sub-paragraphs 148(7)(a)(i) and (iii) of the CC Act, the decisions relating to cl. 4(1)(a) and (e) of Schedule 1 of the FOI Act remain relevant in respect of other matters. In this regard it is well established that cl. 4(1)(a) and (e) includes contraventions of any law and is not limited to contraventions or possible contraventions of the criminal law (see Re S and Commissioner of Taxation (No 2) (1993) 25 ATR 1015 at 1024 and Re T and Queensland Health (1994) 1 QAR 386 at 391).

35 It is also accepted that cl. 4(1)(a) of the FOI Act is wider than the equivalent provision in the Commonwealth FOI Act, s. 37(1)(a), in that it applies to existing investigations and future unspecified investigations because of the use of the words “possible contravention” and “generally”. However, in order for the exemption in cl. 4(1)(a) and (e), to apply it must be shown that disclosure of the document “could reasonably be expected to prejudice” such an investigation or the effectiveness of any lawful method or procedure for preventing, investigating or dealing with such a contravention.

36 In relation to the meaning of the phrase “could reasonably be expected” in cl. 4(1) of the FOI Act, the Deputy President in McCabe v Electoral Commission, State Electoral Office [2003] NSWADT 24 at [16] stated the following:

The phrase "could reasonably be expected" was considered by the Full Court in Attorney General's Department v Cockcroft (1986) 10 FCR 180 and Searle v Public Interest Advocacy Centre (1992) 36 FCR 111. The majority in Cockcroft (at 190) and the Full Court in Searle (at 123) held that the words ought to be given their ordinary meaning, that is, something reasonable as distinct from something irrational, absurd or ridiculous. The applicant pointed out, and I agree, that these cases do not mean that merely because something is not "irrational, absurd or ridiculous" it could "reasonably be expected" to happen.

37 In respect of the exemption contained in s.148(7)(b)(iii) of the CC Act, I note that Part 9 of the Act prescribes certain requirements in respect of a casino’s accounting and internal controls. Section 124, which is in this Part, provides that a casino operator is prohibited from conducting operations in the casino unless, the CCA has approved, in writing, “a system of internal controls and administrative and accounting procedures for the casino”. The section makes provision for the amendment of any approved “system of internal controls and administrative and accounting procedures for the casino” and requires the casino operator to ensure that they are implemented. Section 125 sets out details that are to be included in “a system of internal controls and administrative and accounting procedures for the casino” approved under s. 124. Some of the matters listed in s. 125 include; procedures, forms and, where appropriate, formulas for or with respect to complimentary services (para (b)(iv)); procedures for the conduct of playing games (para (d)); procedures for the payment and recording of gaming machine prizes (para (e)); procedures for the recording of all transactions pertaining to gaming operations (para (f)); procedures for the counting and recording of revenue (para (k)); and procedures for the payment and recording of winnings associated with games where the winnings are paid by cash, cheque or in a non-monetary form (other than chips) (para (o)). The list is not exhaustive and may include matters in addition to those contained s. 125(1).

38 In my opinion, s. 124 of the CC Act is directed towards “systems” of internal control and “procedures” for the management and the financial accounts of a licensed casino. By requiring a licensed casino to formulate and implement such “systems” and “procedures”, which are approved by the CCA, Parliament has provided an important tool to ensure that a casino licensed under the CC Act remains free from criminal influence and that gaming is conducted honestly in accordance with the objectives of the Act. As sub paragraph 148(7)(b)(iii) of the CC Act contains the same phrase as is contained in ss. 124 and 125, in my opinion, Parliament’s intention was to exclude those documents which came within s. 124 from access under the FOI Act. The reasons for this are obvious as access to documents that would disclose such “systems” or “procedures” would enable persons to work around them or subvert them for improper purposes.

39 Accordingly, in my opinion, the exemption contained in sub paragraph 148(7)(b)(iii) of the CC Act includes any documents that relates to a “system” of internal control or a “procedure” relating to the management or financial accounting of a casino. This would include an approved, amended, or draft “system” or “procedure” and any document commenting thereon. However, it does not encompass a document that has been created pursuant to any such approved or amended “system” or “procedure”, which does not disclose the contents of the actual “system” or “procedure”.

Personal Information Exemption

40 As mentioned above, for a document to attract the personal affairs exemption contained in cl. 6 of Schedule 1 of the FOI Act, the CCA must show that (a) the document contains information concerning the “personal affairs” of any person, and (b) the disclosure of such information would be “unreasonable”. Cl. 6(2) makes it clear that the exemption does not apply to documents containing the personal affairs of the access applicant, in this case Mr Preston. It is also well established that a corporation cannot be the subject of an exemption under this clause. Additionally, where the document relates to the professional capacity of a person, this has been held not to relate to that persons personal affairs (Commissioner of Police v District Court of New South Wales (Perrin’s Case)(1993) 31 NSWLR 606).

41 Whether a document contains information about the “personal affairs” of a person is a question of fact to be determined from the circumstances of each individual case (see Perrin’s Case and Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253) and s. 31 of the FOI Act makes provision for an agency to consult the person concerned.

42 In Saleam v Director General, Department of Community Services and Ors [2202] NSWADT 41, at [38] the President adopted the following approach in determining whether a disclosure would involve the “unreasonable disclosure” of information concerning the personal affairs of a person:

As to the general approach to be adopted in deciding whether an exemption should be applied on the basis that disclosure would involve the unreasonable disclosure of information concerning the personal affairs of a person, I agree with the views expressed by the Commonwealth Administrative Appeals Tribunal (AAT). In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257, the AAT said:
'(51) ... [I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. Whether a disclosure is "unreasonable" requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 [the Commonwealth FOI Act exemption equivalent to cl 6] seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.

However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document: page N259.'

43 At [42] he went on to state the following:

In Colakovski’s case [ Colakovski v Australian Telecommunications Corporation (1991) 13 AAR 261] at 270 Lockhart J said:
'What is "unreasonable" disclosure of information for purposes of s 41 (1) must have as its core, public interest considerations. The exemptions necessary for the protection of "personal affairs" (s 41) and "business or professional affairs" (s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access, provided the other conditions mentioned in ss 41 and 43 are satisfied. ' (emphasis added)

44 In regard to the interest of the access applicant being given access to the information, the President agreed with the approach adopted by the AAT in Re Green and Overseas Telecommunications Commission (1992) 28 ALD 655 and stated at [46 and 48] as follows:

46 I agree with the approach adopted by the AAT in Re Green . The question of whether disclosure would result in the unreasonable disclosure of information concerning a person's personal affairs must be approached in a relatively abstract way. The nature and content of the information is the primary consideration. The wishes of the person to whom the information relates are relevant, though, not in my view, conclusive. The purpose of the third party can rarely, if ever, be given consideration. Ordinarily the motives or purpose of the access applicant have no relevance to the judgment required of an agency or the Tribunal (on review) in considering whether cl 6 should be invoked. The difficulty of according relevance to the third party's purpose is cogently explained in Re Green and well illustrated by the present case.

48 The FOI Act sets a standard which is to apply as between citizens and government. Decisions to grant access under FOI should, to use an American expression, ordinarily be facially neutral. The theory, at least, is that once access is given under FOI to one citizen, any other citizen who makes the same request should have the same rights: see further Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 at [26-31]. But some authorities do recognise that a point may be reached where the applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right: see Re Burns and ANU (No 2) (1985) 7 ALD 425 at 438-9; and generally Cossins, Annotated Freedom of Information Act New South Wales (1997), 313. (emphasis added)

45 The courts have stated that the term “business, commercial or financial affairs”, as it appears in cl. 7 of the FOI Act, should not be narrowly construed (Re Saxon and Australian Maritime Authority (unreported, AAT, Cth, 19 June 1995 at 25)).

46 There are two limbs to cl 7(1)(c)(ii) of Schedule 1 of the FOI Act, of which only one limb needs to be satisfied. The first limb applies where it is established that the disclosure of the document in question "could reasonably be expected to have adverse effect on the business, professional, commercial or financial affairs of the third party". The second limb applies where it is established that the disclosure of the document in question “could reasonably be expected to prejudice the future supply of such information to the Government or to an agency".

47 Common to both limbs is the phrase “could reasonably be expected”, which is also included in cl. 4(1) of Schedule 1 of the FOI Act. As I have already dealt with this issue above I will not repeat it (see also Schlebaum (No 3) v Director General, Department of Community Services and Anor [2002] NSWADT 128, at [54 – 57]).

48 Apart from the common requirement of “reasonableness”, each limb of cl. 7(1)(c)(ii) of the FOI Act is directed to a different issue. The first limb is concerned with there being “an unreasonable adverse effect” on the business, professional, commercial or financial affairs of the agency or the third party. This means that the agency must show that the effect of disclosure of the document in question will be adverse, that the adverse effect is unreasonable and that the adverse effect could reasonably be expected to occur (see Cossins, Annotated Freedom of Information Act New South Wales (1997), at 107.15).

49 In Re Maher and Attorney-General’s Department (N0 2); CRA Ltd and Mary Kathleen Uranium Ltd (1986) 13 ALD 98, the Commonwealth AAT considered whether the term “unreasonable” in the equivalent provision of the Commonwealth Freedom of Information Act imputed notions of public interest (see paras 35 – 48). At para 47 and 48 the AAT stated:

47. … It is true that in a given case, in particular circumstances, it could be argued that although the disclosure of certain documents may have an adverse effect on a company, such adverse effect was not unreasonable, eg, where non-disclosure would prevent the public being made aware of matters which affected it, eg exposure of criminal conduct, hazardous work practices, etc. In such circumstances, the word "unreasonable" could encompass public interest concerns but the use of the word "unreasonable" of itself does not oblige a Tribunal to take "public interest" into account in every application for exemption pursuant to that section. If that is what was meant by the Tribunal in Re Actors' Equity , supra , when it said that "public interest", if it is to be taken into account, should be by a different pathway from that under s 36, then this Tribunal agrees. However, it would not necessarily be on each occasion and each case would depend on its facts.

48. … the use of the words "reasonably" and "unreasonably" in s 43 may, in certain cases, include public interest as being a relevant consideration.

50 On the other hand the second limb is concerned with the future supply of such information to the Government or agency. In this regard the approach is the same as that which applies to the confidential exemption contained in cl. 13 of the FOI Act as outlined below. That is, the question to be asked is whether the Government or its agency will be unable to obtain such information in future and not whether the particular business will provide the information in future.

Confidential Information Exemption

51 In order to be able to rely on the confidential information exemption contained in cl 13(b) of Schedule 1 of the FOI Act, the CCA must show that: (a) release of the document would disclose information obtained in confidence; (b) disclosure would reasonably be expected to prejudice the future supply of such information to it; and (c) the disclosure would on balance, be contrary to the public interest. The rationale for this exemption is to protect the flow of confidential information to Government and its agencies. The object is to protect the public interest in Government and its agencies being able to fulfil their functions, many of which are dependent on the flow of confidential information.

52 It is well established (see Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253 at [52]) that in order for information to be "obtained in confidence" it must be shown that it was "communicated and received under an expressed or inferred understanding that [it] would be kept confidential." (see Re Maher and Attorney General's Department (1985) 7 ALD 731 at 737 and Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 338). Confidentiality can be inferred from all the circumstances (see Wiseman v Commonwealth, unreported, Federal Court, 24 October 1989).

53 In respect of determining whether disclosure of the information would “prejudice” the future supply of such information to the agency, the test is not whether the particular confider whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in future. The test is whether the agency will be able to obtain such information in the future (see Ryder v Booth [1985] VR 870 at 872 and Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 341).

Exemption Grounds on which Star City can rely in its application

54 This issue was raised by the CCA in its submissions, in particular whether Star City was able to base its application before the Tribunal on the exemption of confidentiality as contained in cl. 13 of Schedule 1 of the FOI Act. In my opinion the CCA’s submissions are correct (see Mitsubishi Motors Australia Ltd v Department of Transport (1986) 68 ALR 626 and Handicapped Children’s Centre, NSW v Director, Department of Ageing Disability and Home Care [2003] NSWADT 116). This does not mean that Star City is prohibited from adducing evidence, which supports the confidential nature of a document it had provided to the CCA.

55 Star City is also not able to rely on the personal affairs exemption contained in cl. 6 of Schedule 1 of the FOI Act as a basis of its application as the documents in question all contain personal information about individuals who are not a party to the proceedings.

56 I will now deal with each of the documents that are in dispute.

Cripps Report (First and Second)

57 In its letter, dated 29 November 2002, to Star City (a copy of which was provided to Mr Preston under cover of a letter dated the same date) the CCA gave a description of each report. This description included the following:

“ The Cripps report of November 2000

The report was commissioned by TABCORP Holdings Limited as the new owner of Star City in 2000 to investigate into allegations of undesirable and illegal activities in the casino. One of the primary purposes of TABCORP was to ascertain the operations and management practices within the casino…

The document also contained material concerning Star City’s business affairs, in particular, its operation in the Endeavour Room,…

I have noted that the report was provided to the authority on a strictly confidential basis for the sole purpose of assisting the authority in discharging its statutory function, in this case, its investigation into the casino under s.31 of the Casino Control Act, 1992…

…..

…there are various parts of the report that make reference to Mr Preston, particularly pages 13 to 15. However, those references are in relation to allegations made by Mr Preston rather than against him or in relation to his activities, and constitute only a small part of the report.

The Cripps Report of November 2001

The report was a follow up report to the earlier report of November 2000. The report contained no reference to Mr Preston”.

58 It is not disputed that Mr Preston was invited to meet with Mr Cripps QC for the purpose of his inquiry and that while Mr Preston had initially agreed to such a meeting, on legal advice, he cancelled his attendance. Mr Preston stated that the Cripps’ enquiry was as a result of his public exposure of alleged illegal activities that were taking place at the casino, in particular in the private members room – The Endeavour Room. He appeared to argue that this gave him a right to access to the report. In his written submissions Mr Preston also argued that the reports should be made available to expose the casino’s failure to act with integrity and honesty in regard to these allegations.

59 While I can understand the concerns of Mr Preston, particularly where he has been so concerned about the possibility of illegal activities that he announced those concerns publicly, this is not a basis on which the Tribunal has jurisdiction to review the decision the subject of these applications. Mr Preston is also making assumptions about the contents of documents that he has no knowledge of. This is undoubtedly why he has made his application for access under the FOI Act. However, as stated above the Tribunal’s determination must be made in accordance with the relevant provisions of the FOI Act and the CC Act.

60 The CCA in its internal review determination determined that access to the two Cripps reports be refused under the exemptions contained in cls. 7(1)(b) and (c), 12 (i.e. s. 148 of the CC Act), and 13 of Schedule 1 to the FOI Act. (confidential). Ms Eastman, on behalf of Star City, supported such a determination.

61 I have read the two Cripps reports and the confidential affidavit tendered by the CCA (confidential) and Star City (confidential), which describe the circumstances in which the CCA had obtained a copy of the reports and the basis on which the respective exemptions are claimed. In this regard I find that:

(a) to (h) (confidential)

(i) Both reports come within the terms of s.148(1) and (7)(b)(iii) of the CC Act.

62 (confidential)

63 (confidential), I am of the opinion that the whole of the contents of both Cripps reports contain information concerning the system of internal controls and administrative procedures of Star City and are therefore exempt under s. 148(7)(b)(iii) of the CC Act. Consequently, the mandatory refusal of access applies to both reports.

64 For the reasons stated above, there is no need for the Tribunal to consider any of the other grounds of exemption that have been relied on.

Document 6.1 and 29.1

65 The CCA has refused access to document 6.1 and 29.1, which are the same (letter J. Hoggart to L. Le Compt, dated 6 November 1997), on the basis that it is an exempt document under Clauses 6 and 7 of Schedule 1 of the FOI Act. Star City supports this position.

66 (confidential)

67 (confidential)

68 (confidential)

69 (confidential)

70 (confidential)

71 (confidential)

72 (confidential)

73 Although it has been established that this document contains an exempt matter under cl. 6 of Schedule 1 of the FOI Act, in my opinion it is practicable to delete that sentence and give access to a copy of the document with the exempt matter deleted (see. s. 25(4) FOI Act).

Document 9.2: Extract of Handwritten Notes dated 1/2/97 and 2/2/97

74 In its internal review, the CCA determined to give conditional access to Document 9.2 (Extract of Handwritten Notes) in so far as the document referred to Mr Preston. It then relied on the exemptions contained in Clauses 6 and 7 of Schedule 1 of the FOI Act to refuse access to the remainder of the document. At the hearing, Ms Sharp, on behalf of the CCA, no longer pressed the exemption contained in Clause 7.

75 Star City did not claim that the document was exempt under cl. 7 of Schedule 1 and argued that the whole of the document was exempt on the basis of the exemption contained in cl. 6 of Schedule 1 of the FOI Act. For the reasons stated above, this is not a ground on which Star City can rely.

76 (confidential) Accordingly, I am satisfied that the information in this document concerning the personal affairs of persons other than Mr Preston is exempt under cl.6 of Schedule 1 of the FOI Act. I am also satisfied that it is practicable that a copy of this document be provided to Mr Preston with the exempt information being deleted.

Document 9.3: Handwritten Notes from Person Unknown

77 In its internal review, the CCA determined to give conditional access to document 9.3 (Handwritten Notes from Persons Unknown), to the extent that it made reference to Mr Preston. In respect of the remainder of the document the CCA refused access on the basis that the remainder of the information in the document was exempt pursuant to cls. 6 and 12 of Schedule 1 of the FOI Act. (confidential)

78 Star City on the other hand submitted that the whole of the document was exempt by virtue of cl. 6 of Schedule 1 of the FOI Act. For the reasons stated above, this is not a ground that Star City is able to pursue in its application.

79 (confidential) I am of the opinion that the information concerning the personal affairs of persons other than Mr Preston is exempt. I also find that it is practicable that a copy of this document be provided to Mr Preston with the exempt information being deleted.

80 (confidential)

Document 13.1: Patron Transactions Report - Preston

81 In its internal review the CCA refused access to document 13.1 (Patron Transactions Report – Preston) on the grounds that the document came within cls 7 and 13(b) of Schedule 1 of the FOI Act. In the written submissions, Ms Sharp, on behalf of the CCA, also relied on the exemption contained in sub para.148(7)(b)(iii) of the CC Act and hence cl 12 of Schedule 1 of the FOI Act.

82 Ms Eastman, of behalf of Star City, supported the grounds on which the CCA had refused access to the document. In this instance Star City was able to rely on the exemption contained in cl. 7 and it could provide the evidence to support the basis of the claim that the document was confidential.

83 (confidential)

84 (confidential)

85 (confidential)

86 (confidential)

87 (confidential)

88 Accordingly, in my opinion, document 13.1 is only exempt to the extent it refers to matters coming within sub para. 148(7)(b)(iii) of the CC Act. In my opinion it is practical to delete the exempt matters from the document and provide Mr Preston with a copy of the document with these deletions. However, as there may be other exempt matters, which have been overlooked by me I will remit this matter back to the CCA to determine, in consultation with Star City, in accordance with this decision, what is to be deleted.

Document 36.2 and 36.3: Letter from Brown to L Le Compt dated 4/5/99 and Notes for Submission dated 30/4/99

89 In its internal review the CCA determined to grant access to the letter from Brown to Le Compt dated 4/5/99 (Document 36.2), but refused access to the Notes for Submission (Document 36.3). The Notes for Submission were refused on the grounds of cl. 7 and 13 of Schedule 1 of the FOI Act.

90 Ms Eastman, on behalf of Star City submitted that both documents should be considered together and were exempt under Clause 6, 7 and 13 of Schedule 1 of the FOI Act. For the reasons stated above I will not deal with the cl. 6 exemption. (confidential)

91 (confidential).

92 (confidential)

93 (confidential)

94 Accordingly, I find that the CCA and Star City have failed to establish that document 36.2 and 36.3 are exempt.

Document 42.1: Letter from B Brown to L Le Compt dated 10/6/99

95 In its internal review, the CCA determined that access to the letter from B Brown to L Le Compt, dated 10/6/99, should be granted. Ms Sharp, in her written submissions, supported this determination.

96 On the other hand, Ms Eastman, on behalf of Star City, argued that the document was exempt on the basis that the document came within the terms of cl 7, and 13 of Schedule 1 of the FOI Act. (confidential)

97 (confidential)

98 Accordingly, I find that the CCA and Star City have failed to establish that document 42.1 is exempt.

CONCLUSIONS

99 On the basis of my reasons set out above, I am of the opinion that the CCA’s internal review determination is the correct and preferred decision in respect of the following documents:

a) the first and second Cripps report;

b) document 36.2;

c) document 42.1

100 On the basis of my reasons set out above, I am of the opinion that the CCA’s internal review determination is not the correct and preferred decision in respect of the following documents:

a) document 6.1 and 29.1;

b) document 9.2;

c) document 9.3;

d) document 13.1; and

e) document 36.3

101 Ms Eastman, on behalf of Star City, in her submissions raised the issue of costs. It is now appropriate that the parties be given an opportunity to address this question in light of the Tribunal’s decision. This can be conveniently done on the papers with the parties being given an opportunity to provide written submissions within a specified period of time, in the event they wish to pursue such an application.

Accordingly the Tribunal orders:

1. The decision of the Chief Executive of the CCA in respect of the first and second Cripps reports, and document 36.2 and 42.1 is affirmed.

2. The decision of the Chief Executive of the CCA in respect of document 6.1, 29.1, 9.2 and 9.3 is varied. An edited version of each the document is to be released, with deletion of the relevant exempt matter, within 30 days of this decision.

3. The decision of the Chief Executive of the CCA in respect of document 13.1 is not affirmed, and Mr Preston’s request in respect of this document is remitted to the CCA for further consideration, in consultation with Star City, in respect of deletions of the relevant exempt matters. Within 30 days of this decision, an edited version of the document is to be released with the deletion of the relevant exempt matters.

4. Liberty to the parties to apply within 14 days in respect of the terms of Order 3.

5. The decision of the Chief Executive of the CCA in respect of document 36.3 is set aside and in substitution of that decision a decision is made to grant access to that document.

6. A decision in respect of costs is to be made on the papers, subject to the parties being given liberty to submit written submissions within 14 days of this decision.