Purcell and Veteran's Review Board

CATCHWORDS – FREEDOM OF INFORMATION – access to documents – conclusive certificate issued – whether documents to which s. 36 applies – whether contains purely factual material – whether can be separated from the remainder – whether reasonable grounds exist for claim that disclosure would be contrary to the public interest – whether claim can be made in relation to a class of documents – whether any adverse effects likely from disclosure – whether disclosure of documents likely to mislead the public or create controversy – whether frankness and candour affected by disclosure – decision affirmed.

Freedom of Information Act 1982 ss. 9, 22, 36, 58, 58B, 58E and 61; Part VI
Harris v Australian Broadcasting Commission (1984) 51 ALR 581
Re Waterford and Treasurer of the Commonwealth (No. 2) (1985) 8 ALN N37
Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589
Re MacPhee and Department of Treasury (1988) 11 AAR 166
Australian Doctors' Fund v Commonwealth of Australia (1994) 49 FCR 478
Department of Industrial Relations v Burchill (1991) 33 FCR 122
Re Bracken and Minister for Education and Youth Affairs (1985) 2 AAR 406
Re Fewster and Department of Prime Minister and Cabinet (1986) 7 AAR 367
Re Dillon and Department of Treasury (1986) 4 AAR 320
Re Howard and Treasurer of the Commonwealth (1985) 3 AAR 169
Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2, (1993) 1 QAR 60
Re Murtagh and Commissioner of Taxation (1983) 6 ALD 112
Re Downie and Department of Territories (1985) 4 AAR 168
Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1
Commonwealth of Australia v Northern Land Council (1992-93) 176 CLR 604
Sankey v Whitlam (1978) 142 CLR 1
Re VXF and Human Rights and Equal Opportunity Commission (1989) 17 ALD 491

DECISION AND REASONS FOR DECISION [2002] AATA 1163

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2001/1100
GENERAL ADMINISTRATIVE DIVISION     )

ReGERALD LAWRENCE PURCELL
Applicant

AndVETERANS' REVIEW BOARD
Respondent

DECISION

Tribunal:                  Miss S A Forgie (Deputy President)
Date:  12 November, 2002
Place:  Melbourne

Decision:The Tribunal:
1.set aside the decision of the respondent dated 3 August, 2001; and
2.substitute a decision that:
(i)the applicant is entitled to access under the Freedom of Information Act 1982 to those documents, or parts of the document, marked Attachment A – terms of appointment, Attachment B – application received and Attachment C – nomination received; and
(ii)in relation to the remainder of the documents, or parts of the document, to which the applicant sought access, there are reasonable grounds for the claim that disclosure would be contrary to the public interest within the meaning of s. 36 of the Freedom of Information Act 1982.
S A FORGIE
Deputy President

REASONS FOR DECISION

On 18 October, 2001, the applicant, Mr Gerald Lawrence Purcell, applied for review of a decision of the respondent, the Veterans' Review Board ("VRB"), dated 3 August, 2001. That decision was made after Mr Purcell had sought review of an earlier decision dated 28 June, 2001 in so far as that decision had refused him access to a particular document, which I will describe below. In reviewing the decision, the VRB decided that the document to which Mr Purcell sought access is exempt pursuant to s. 36 of the Freedom of Information Act 1982 ("FOI Act") and that, to the extent that any information he sought is not part of that document, that information does not exist and cannot be provided to him.

At the hearing, Mr Purcell represented himself and the VRB was represented by Mr Hanks QC. The documents lodges pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with two minutes signed by Mr Bruce Topperwien dated 27 September, 2001 and 4 October, 2001 respectively, a statement by Mr Purcell, a list of documents, two affirmations of Mr Topperwien dated 15 January, 2002, and 15 April, 2002 respectively, an affirmation of Mr Paul Andrew Evans and a bundle of documents including correspondence and media releases which I will describe later in these reasons. Mr Purcell gave oral evidence in support of his own case and Mr Topperwien and Mr Evans gave evidence in support of the case presented by the VRB.

THE ISSUE

The issue in this case is whether there exist reasonable grounds for the claim that the disclosure of certain documents would be contrary to the public interest within the meaning of s. 36 of the FOI Act.

BACKGROUND

There was no dispute between the parties regarding the facts forming the background to the issue that remains unresolved between them. In view of that and on the basis of the evidence, I have made the findings of fact set out in the following paragraphs.

The process of appointment to the VRB

Since November, 1998, Mr Topperwien has been the Executive Officer of the VRB and responsible to its Principal Member, Mr Rolfe, for managing its budget, resources, staff, registries and non-adjudicative operations. In that position, he liaises with the office of the Minister for Veterans' Affairs ("the Minister") with regard to administrative issues concerning the VRB, represents it before Parliamentary Committees and provides legal advice to Mr Rolfe. Prior to his taking up that position, Mr Topperwien had spent over seven years as the Director of the Legal Services Group in the Department of Veterans' Affairs ("Department"). His responsibilities in that position included the provision of advice to the Department, the Repatriation Commission and the Minister regarding the appointment of statutory office holders in the Minister's portfolio. He drafted submissions to Cabinet recommending appointments and prepared the documents of appointment for the consideration of Executive Council.

Based on Mr Topperwien's evidence, I find that the Minister's usual practice was to ask Mr Rolfe for advice regarding potential appointees to the VRB and to make recommendations about them. When asked, Mr Rolfe's usual practice was to convene an interview panel to interview applicants and to assess their relative merits against selection criteria having regard to their performance, skills, expertise, personal characteristics and other relevant factors. Mr Rolfe was a member of that interview panel.

Mr Rolfe would then make a written report to the Minister, expressing recommendations on appointments or reappointments to the VRB. He would take into account the views expressed by the interview panel and provide the Minister with detailed information regarding each applicant, their relative merits and their suitability for appointment or re-appointment to the VRB. As part of his report, Mr Rolfe usually advises the Minister about the VRB's need for members including the categories of members required and the characteristics required of members "to promote the Board's aims and functions" (Exhibit 1, paragraph 4(d)).

Having received the report, the Minister decides which of the applicants should be recommended to Cabinet for appointment. Those whom he has approved are then notified to the Parliamentary Branch of the Department and that Branch prepares the appropriate documentation for Cabinet's consideration. If the Minister has accepted Mr Rolfe's advice and information, that information is used as the basis for that documentation.

If Cabinet approves the Minister's recommendations, appointment documents are prepared for the consideration of Executive Council. Those documents are usually based on the documents that were prepared for Cabinet.

Background to Mr Purcell's application for appointment

At the time of the hearing, Mr Purcell was a barrister practising in Melbourne. He had previously been in the Royal Australian Navy and had retired with the rank of Commander. From 18 June, 1991 until 31 May, 2001, he held positions either as a Member or as a Senior Member of the VRB. In either position, he had been required to sit as part of a three member board to review decisions made by the Repatriation Commission under the Veterans' Entitlements Act 1986. Generally, the VRB would conduct three hearings each day to review those decisions. Each hearing lasted for approximately one hour and each of the three members was responsible for writing one of the decisions arising from those hearings. Each year, Mr Purcell was constituted to sit for somewhere between two and four weeks in every five week period. He sat either in Melbourne or in other States.

In 2000, Mr Purcell held an appointment as a part-time Senior Member of the VRB as he had been re-appointed. In a letter dated 13 December, 2000 to Mr Purcell, Mr Rolfe, wrote to offer "… his sincere thanks, on a number of grounds, for …[Mr Purcell's] commitment to … [his] role on the Board." (Exhibit C, page 4) After thanking Mr Purcell for his willingness to stand in, sometimes at very short notice, for colleagues and after referring to a number of issues facing the VRB that year, Mr Rolfe turned to the members and their work. He wrote:

"Similarly, the approach of members of the Board to applicants and advocates has been remarked upon in a positive way in the course of the year by a number of influential figures in the ex-service organisations. One expects simple courtesy and respect but there is now a sense that it is offered genuinely. A number of 'battling' advocates have expressed appreciation for the explanations and general assistance offered by our panels. Complaints of 'lack of understanding' or 'lack of fairness' are rare. I attribute this to a willingness to listen and to the application of strong (yet respectful) communication skills in focusing the attention of applicants and advocates on relevant issues. The process is time consuming, sometimes frustrating, but always rewarding. I congratulate you on the reputation you are developing.
Finally may I thank you for the frank, forthright and invariably helpful assistance I am offered on a regular basis by phone, fax, email and in general conversation. I take a deal of personal pleasure and pride in my involvement with a group of people of such diverse and wide-ranging skills and experience." (Exhibit C, pages 4-5)

Mr Purcell's three year appointment was due to expire on 31 May, 2001. In a letter dated 31 January, 2001, the Principal Member of the VRB, wrote to Mr Purcell to advise that 24 positions were becoming vacant and that they would be advertised in each State on 3 February, 2001. Mr Rolfe noted that he could not offer appointments to members but advised that then current members were eligible for reappointment. He then asked Mr Purcell to advise him whether he wished to apply for reappointment. Mr Rolfe regretted what might "… appear to be a terse tone in this letter, particularly as it relates to the end of an appointment in which … [he had] … given valuable service. It is not intended." (T documents, page 8)

The advertisements, seeking applications for appointment as part-time Senior Members and Members, duly appeared on 3 February, 2001 (Exhibit C, page 3). In a letter dated 7 February, 2001, Mr Purcell advised Mr Rolfe that he did seek reappointment and enquired whether it was necessary to make a formal application and to provide supporting material (T documents, page 9). He was interviewed for it in either March or April, 2001 in Melbourne.

In a telephone call to Mr Purcell on 24 May, 2001, Mr Rolfe notified Mr Purcell that his name had been put forward to the Minister as a person who was suitable for appointment but that he had not been appointed. On that same day, Mr Rolfe wrote to Mr Purcell to advise him that his application had been unsuccessful. He continued:

"I expect you are disappointed but hope that you draw some consolation from the fact of the long valuable and committed service you have rendered in the difficult task of review of veterans and widows claims. The Minister for Veterans' Affairs, the Hon Bruce Scott MP, has asked me to convey to you his appreciation for that service." (T documents, page 10)

In late May, 2001, Mr Purcell had a conversation with a former Senior Member of the VRB based in Melbourne. As a result of that conversation, Mr Purcell had an impression that the Minister had not followed all of Mr Rolfe's recommendations and that, as a result, a Senior Member in Melbourne had not been re-appointed. Mr Purcell also had an impression that ex-service organisations might have influenced the Minister's decision.

In a letter dated 7 June, 2001, Mr Purcell advised Mr Rolfe that he was indeed disappointed at not being reappointed to the VRB. His disappointment extended to the delay and manner in which he was informed of the decision and by his not having been given any explanation for the decision. As to the delay and manner of his being informed, Mr Purcell said that he was first advised of the decision in a telephone call made to him by Mr Rolfe on 24 May, 2001. That was shortly before his appointment was due to end. It left him no time to make any firm commitments for other employment and limited time within which to complete his outstanding matters and to farewell members and staff with whom he had worked for eight years.

In his letter, Mr Purcell asked why he was the only Victorian member not re-appointed, why five Senior Members were not appointed in Victoria as had previously been the case in Victoria and continued to be the case in New South Wales and Queensland and why, of all the Senior Members in Australia who sought re-appointment, he was the only person not re-appointed. In addition, Mr Purcell asked for the criteria used in making the decision not to re-appoint him and the form in which he recommended appointments to the Minister. He then sought access to the following documents under the FOI Act:

"(a) all documents in my personal files;
(b)all documents (including emails) relating to the continuation of my appointment in September 1999;
(c)all documents in the custody or possession of the VRB relating to my application for re-appointment in February 2001;
(d)all documents relating to my application which were produced by the three persons who interviewed me for re-appointment;
(e)documents containing your recommendations to the Minister – including documents as to
(i)the number of senior members to be appointed in Melbourne; and
(ii)the names of persons recommended for those positions; and
(iii)the reasons given (if any) for those recommendations;

(f)all correspondence in the possession of the Board received from or sent to any person, including advocates or ex-service organisations, concerning:
(i)my performance as a member or senior member;
(ii)any matter dealt with by a panel of which I was a member; and
(iii)my re-appointment." (T documents, page 12)

Mr Rolfe acknowledged Mr Purcell's letter and referred it to Mr Robert Kennedy, the Director of the VRB's Legal and Information Services. In a letter dated 28 June, 2001, Mr Kennedy advised Mr Purcell that he had decided to grant access to his personal files except in so far as they contained Executive Council appointment documents. He also granted access to a further six documents. They were covered by Mr Purcell's request for access to documents from any person concerning his performance as a Member or as a Senior Member of the VRB or of the performance of any panel of which Mr Purcell was a member or concerning his re-appointment. I will return to those documents shortly.

Mr Kennedy grouped into one category Mr Purcell's request for access to documents relating to the continuation of his appointment in September, 1999, to his application for re-appointment in February, 2001, to documents produced by members of the interviewing panel and to documents containing recommendations to the Minister concerning appointments to the VRB. In relation to that group of documents, Mr Kennedy decided to release a Media Release by the then Minister in respect of persons appointed or re-appointed to the VRB with effect from 1 June, 2001 but that:

"… all documents containing recommendations for appointment to the Board are exempt documents in terms of section 34 (Cabinet documents), section 35 (Executive Council documents), section 36 (internal working documents, being documents prepared in connection with the formulation of recommendations for the Minister to take to Cabinet or the Executive Council) or section 41 (documents affecting personal privacy)." (T documents, page 16)

In a letter dated 22 July, 2001 and received by the VRB on 26 July, 2001, Mr Purcell applied for review of Mr Kennedy's decision in so far it refused him access to the document in which recommendations for appointment were made to the Minister. Mr Purcell stated that he sought access only to the recommendation relating to his application, the supporting reasons, the recommended number of senior member appointments for Melbourne and his position in the order of merit for those appointments. Mr Rolfe acknowledged receipt of his letter and advised that he had referred it to Mr Topperwien, the VRB's Executive Officer. He went on to say:

"I deeply regret the situation that has arisen.
Notwithstanding any result of Mr Topperwien's independent consideration of this matter, I provide you with the following information. This should not be taken to indicate that the information was or was not part of the material you have sought in your application.
I assessed that one Senior Member position only would be required in Melbourne in this round of appointments. Six persons were interviewed in respect of the Senior Member position: of the persons considered suitable for appointment you ranked 3.
In relation to the letter from Mr Ruxton, which you have now seen, it was received by me direct from Mr Ruxton and after I had submitted materials relating to the appointments to the Minister. The letter played no part in the considerations for appointment and remained correspondence between Mr Ruxton and myself. It was not passed to the Minister." (T documents, page 35)

Mr Topperwien then made a decision refusing Mr Purcell access to the documents that he sought and Mr Purcell lodged his application for review. On 5 October, 2001, the then Minister issued a certificate under s. 36(3) referring to Mr Purcell's request. That certificate related to a number of documents forming an attachment to a letter dated 11 April, 2001 from Mr Rolfe as well as to the letter itself. The attachments were concerned with terms of appointments, applications and nominations received, proposed membership and selection reports for each State. After reciting that he was satisfied that each of the documents was a document to which s. 36(1)(a) applies, the Minister certified that, apart from the attachment relating to terms of appointment:

"… disclosure of the document would be contrary to the public interest on the grounds that:
1.the documents contain information and recommendations relating to appointments by the Governor-General to statutory offices of public trust responsible for making decisions about the Commonwealth's liability to pay pensions to veterans and their dependants, including information relating to particular candidates and nominees for appointment;
2.disclosure of the document could inhibit the capacity of the Principal Member of the Board to tender frank and candid advice to the Minister regarding potential appointments to the Board;
3.any inhibition of that capacity could diminish the Minister's confidence in the Principal Member and in the administration and effective management of the Board;
4.any diminution of the Minister's confidence could in turn affect the Minister's capacity to recommend appointments to the Cabinet and the Governor-General;

5.disclosure of the document could create a misleading impression of the processes by which appointments to quasi-judicial offices are considered, recommended and made by the Governor-General;
6.the public interest in open access to the document under the Act is outweighed by the public interest in maintaining the capacity of the Principal Member of the Board to tender frank and candid advice to the Minister and the public interest in avoiding controversy relating to the Governor-General's appointment of quasi-judicial office-holders."

On 15 November, 2001, Mr Rolfe also issued a certificate under s. 36(3). He also referred to Mr Purcell's request and to a further document that was not the subject of the Minister's certificate. In the recital to the certificate, Mr Rolfe stated that the range of documents requested by Mr Purcell included a document that had not been in existence when Mr Purcell made his request on 7 June, 2001. It was not, therefore, the subject of the Minister's certificate signed on 5 October, 2001, Mr Rolfe said in his recital. That document, described as "Exempt Document A", contains substantially the same information concerning recommendations that he had made to the Minister as did the documents referred to in the Minister's certificate. Mr Rolfe stated that he was satisfied that it is a document to which s. 36(1)(a) applies. He then made a certification in the same terms as those adopted by the Minister and added the additional ground that:

"disclosure of the document would negate the effect of the Minister's certificate of 5 October 2001." (Annexure to Mr Purcell's Statement of Facts and Contentions)

LEGISLATIVE FRAMEWORK

Section 36(1) of the FOI Act provides that:

"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."

There are, therefore, two aspects to the section and both must be satisfied before a document is exempt pursuant to its terms. In so far as the first aspect dealt with in s. 36(1)(a) is concerned, a document does not satisfy it if it contains matter used by an agency in making decisions or recommendations and taking the form of manuals or documents describing particulars of a scheme, the manner or administration of an enactment or scheme or describing the procedures to be followed i.e. documents coming within s. 9(1) of the FOI Act. The section does not apply to a document in so far as it contains purely factual material and it does not apply to reports of scientific or technical experts or of a prescribed body in an agency or the record of a decision or formal statement of the reasons for that decision given in the exercise of a power or an adjudicative function (ss. 36(5) and (6)).

In relation to the second aspect, a Minister may sign a certificate where he is satisfied that disclosure of a document coming within s. 36(1)(a) would be contrary to the public interest. If he does so, he or she must specify the ground of public interest in relation to which the certificate is given. Where a Minister is satisfied that disclosure would be contrary to the public interest by reason only of matter in a particular part or parts of the document, the Minister must specify that part or those parts (s. 36(4)).

Subject to the operation of Part VI of the FOI Act, so long as such a certificate remains in force, it establishes conclusively that the disclosure of the document would be contrary to the public interest (s. 36(3)). The responsible Minister of an agency may delegate his or her powers to the principal officer of the agency in respect of documents of the agency.

Where such a certificate is in force, the Tribunal may not review the decision to give the certificate. Provided it is constituted in accordance with s. 58B of the FOI Act, it may, in the case of a document claimed to be exempt under s. 36, determine whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest (ss. 58(3) and (5)). In view of the procedure prescribed in s. 58E, the Tribunal must follow a two stage process. It must first consider whether there are reasonable grounds for the claim that disclosure of the documents would be contrary to the public interest. If it is not so satisfied, the Tribunal may require the production of the documents.

CONSIDERATION

Although there have been two conclusive certificates issued as a result of Mr Purcell's request under the FOI Act, the decision under review is affected only by that issued by the Minister and not that by Mr Rolfe. The Minister's certificate related to documents beyond the scope of Mr Purcell's narrowed request and, in so far as it relates to documents setting out the terms of appointment, the applications and nominations received and the selection reports relating to service members, it relates to documents beyond the scope of his original request. I am not concerned with the certificate in so far as it does not relate to documents that are not the subject of Mr Purcell's request but there are two issues that should be touched upon before I leave those documents.

The first is that there is a question whether three documents are documents to which s. 36 relates at all and particularly whether they are documents to which s. 36(1)(a) relates. This enquiry is not precluded by the Ministers' conclusive certificate for he may only issue such a certificate in relation to which s. 36(1)(a) applies. The documents with which I am concerned are Attachment A – terms of appointment, Attachment B – applications received and Attachment C – nominations received. On their face, each of these documents appears to be stating what the position appears to be as a matter of fact and so comprise purely factual material as that expression has been interpreted by the Full Court of the Federal Court in Harris v Australian Broadcasting Commission (1984) 51 ALR 581 at 584-6 (Bowen CJ, St John and Fisher JJ). It is difficult to conclude that there has been any element of judgement brought to bear on preparing documents let alone the exercise of any opinion, advice or recommendation. In formulating the terms of appointment, someone may well have formed an opinion, given advice or made a recommendation in the past but, from the description of the document, it appears to simply be stating the terms that are by then settled and so to be stating the facts. The lists of applications and nominations received are also statements of factual matters; they show those who have applied or nominated and so are recitals of facts and nothing more.

As s. 36 does not apply to documents by reason only of factual material contained in them (s. 36(5)), the three documents cannot be the subject of s. 36 and so cannot be the subject of a conclusive certificate. Lest it be said that the three documents cannot be separated from the remainder referred to in the Schedule to the Minister's certificate, I note that the Minister himself has referred to them as separate documents. That would seem to be appropriate but, even if it were not, the form of the document would mean that each of the sixteen separate documents referred to by the Minister would be sixteen separate parts of the one document. Assuming that the three parts are not exempt under any other provision of the FOI Act, there would then be an obligation upon the Minister to excise the remaining thirteen parts and to release the three parts to Mr Purcell. That obligation would arise under s. 22 of the FOI Act, for it would be reasonably practicable for him to separate the three parts from the remainder and so leave a document that would not be exempt.

The second issue that I should touch upon arises from the fact that the Minister has given a conclusive certificate in relation to documents in the context of Mr Purcell's request but extending beyond the documents coming within that request. While there may be those who wonder whether that represents an appropriate use of the power to issue a conclusive certificate, it is not a matter that is relevant to ponder upon in the circumstances of this case.

Turning now to the conclusive certificate, I have already stated that its existence confines the scope of the Tribunal's review. The scope of the review is limited to deciding whether there exist reasonable grounds for the claim that disclosure of the document would be contrary to the public interest (see paragraph 27 above). What is encompassed in that review has been the subject of several decisions in the Tribunal. Beginning with Re Waterford and Treasurer of the Commonwealth (No. 2) (1985) 8 ALN N37 (Deputy President Todd), the Tribunal said:

" It should be noted that there is no requirement in s 58(5) that there not exist reasonable grounds for a claim that disclosure would be in the public interest. Nor does s 58(5) require a balancing between the grounds for a claim that disclosure would be contrary to the public interest and the grounds for a claim that disclosure would be in the public interest: All that s 58(5) requires is that there exist reasonable grounds for the claim that disclosure would be contrary to the public interest. The balancing aspect of s 58(5) only enters at the stage of assessing whether or not something is in the public interest. Having found that some of the respondent's arguments support the claim that disclosure would be contrary to the public interest, and that those arguments taken together are weighty enough to constitute reasonable grounds for the claim to that effect, it follows that the document is an exempt document." (pages N43-N44)

This passage was refined by Deputy President Todd when he said in Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589:

"… a relevant reasonable ground must be weighty enough to stand on its own. A ground, apparently reasonable, might appear insignificant when set against other very strong grounds tending in favour of disclosure. But given that the claimed ground of exemption can still appear reasonable standing on its own, that must, in a certificate case, be enough. Any other view would negate the 'reasonable grounds' concept and simply introduce by the back door the balancing process which applies in relation to s 36(1)(b) in a case where no certificate has been issued. As Morling J said in Re Peters and Department of Prime Minister and Cabinet (No 2) (1983) 5 ALN N306 at N307: "…the question is not whether this Tribunal holds that opinion. Rather the question is whether reasonable grounds exist for the claim that disclosure would be contrary to the public interest." (pages 594-595)

This approach was endorsed by Hartigan J sitting as President of the Tribunal in Re MacPhee and Department of Treasury (1988) 11 AAR 166 when, after reviewing the authorities to that time, he concluded:

"… where the applicant requests a review of a decision to issue a conclusive certificate the question for the Tribunal is whether reasonable grounds exist to support the certificate. If reasonable grounds do exist to support the claim then that is the end of the matter despite the fact that there may be other grounds relied upon, the reasonableness of which may be doubtful. Reasonable grounds are those based on reason. It is not possible to place an exhaustive definition upon what may constitute reasonableness: (see Wegan Constructions Pty Ltd v Wodonga Sewerage Authority (1977) 36 LGRA 147 at 149). It is obviously a matter to be determined by the Tribunal on the facts as they are found as to whether or not there exist reasonable grounds for the claim. It is not enough to show that some other reasonable person could have concluded that other grounds could not have supported the issue of the certificate. What may be the conclusion of one reasonable person does not of itself exclude all other conclusions from the realms of reasonable possibilities see: Re W (An Infant) [1971] AC 682 at 700. For examples of what may constitute reasonable grounds for other purposes see R v. Rymer (1877) 2 QBD 136 at 140 and Adams v Thrift [1915] 2 Ch 21.
It follows from what I have said that the Tribunal should not attempt to balance the grounds supporting the certificate against grounds supporting the contention that the issue of the certificate is unreasonable. This style of approach is akin to a full merits review. Neither should the Tribunal approach the issue of whether there are reasonable grounds for the issuing of a certificate on the basis that such grounds can be presumed to be in existence unless it can be shown that they are in fact grounds no reasonable man could consider reasonable or they are grounds no reasonable man could rely on in reaching a decision to issue a certificate. The words of s 58(5) are clear - the Tribunal must simply determine if reasonable grounds exist. As I have said reasonable grounds are those based on reason." (pages 173-174)

In the much later case of Australian Doctors' Fund v Commonwealth of Australia (1994) 49 FCR 478, Beazley J reviewed the authorities as to the meaning of "reasonable" and whether there exist "reasonable grounds" in the context of s. 58(5). Much of the argument in the case had centred on a passage from the judgement of Davies J in Department of Industrial Relations v Burchill (1991) 33 FCR 122 (Davies, Jenkinson and Ryan JJ):

"I need not elaborate on what is the import of the term "reasonable grounds". In Re Porter and Department of Community Services and Health (1988) 8 AAR 335 at 337-339, Deputy President R K Todd said:
"To be 'reasonable', it is requisite only that they be not fanciful, imaginary or contrived, but rather that they be reasonable; that is to say based on reason, namely agreeable to reason, not irrational, absurd or ridiculous: see Re Actors' Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 3 AAR 1; Attorney-General's Department v Cockcroft (1986) 10 FCR 180. It follows that it is a heavy thing for the Tribunal to reject a certified claim." (pages 125-126)

Beazley J endorsed what Davies J had said and rejected the introduction of any qualification that what is reasonable must be assessed by reference to what might be thought by moderate and sensible persons.

The time at which the Tribunal considers whether there are reasonable grounds was considered by Deputy President Hall in the earlier case of Re Bracken and Minister for Education and Youth Affairs (1985) 2 AAR 406 when he said:

"… the question before the Tribunal is not whether, at the date when the Minister made the claim of exemption, there existed reasonable grounds for the claim. (Compare. Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 K.B. 223; cf. Secretary of State for Education and Science v Tameside Metropolitan Borough [1976] 3 All E.R. 665.). The question is whether reasonable grounds for the claim "exist". In my view, the proper determination of that question requires an evaluation by the Tribunal of all the evidence and materials available at the hearing, whether or not that evidence and material was available to the Minister. The question as posed by the Act is one that is appropriate for administrative review on the merits, albeit a more limited question than that which arises for determination where no conclusive certificate is in force." (page 412)

Deputy President Hall adopted this approach again in Re Fewster and Department of Prime Minister and Cabinet (1986) 7 AAR 367 at 368-370 and it was endorsed by Hartigan J, in Re MacPhee and Department of Treasury (at 171-172). The practical implications of the principles set out in Re Bracken were highlighted by Deputy President Todd in Re Rae when he said:

"… The Tribunal may find that there are reasonable grounds for the issue of a certificate although there were no such grounds when it was issued, or it may find that such grounds did then exist and still do, although they were not the grounds stated in the certificate. Or it may find that while reasonable grounds did exist for the issue of the decision at the date of such issue, no such grounds now exist. …" (page 594)

The effect of s. 61(1) of the FOI Act is that the onus of establishing that a decision given in respect of a request was justified or that the Tribunal should give a decision adverse to Mr Purcell is upon the VRB. It follows that the VRB has the onus of establishing that there are reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.

That brings me to the notion of "public interest" which is at the heart of this case. Consideration must be given to that notion for, although the role of the Tribunal is limited when a conclusive certificate has been issued, it is not bound to accept any ground stated in the certificate or put forward in support of the certificate. It must be a ground that is a legitimate public interest for otherwise the ground would, in the words of Deputy President Todd in Re Dillon and Department of Treasury (1986) 4 AAR 320, become:

"… a tag which an agency could easily attach to any document which is sought not to be disclosed and which, if accepted, would greatly reduce the review function of the Tribunal in this jurisdiction." (page 330)

While the expression "public interest" is not defined, it is an expression that has received a considerable amount of consideration over the years both in the context of the FOI Act and otherwise. In the very early days of the operation of the FOI Act, Davies J set out a number of circumstances in which it will be "…more likely that the communication should not be disclosed", or in which disclosure "tends not to be in the public interest" (Re Howard and Treasurer of the Commonwealth (1985) 3 AAR 169 at 178). Since then, there have been many authorities that have considered these circumstances. Many of them were carefully analysed by the Queensland Information Commissioner in Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2, (1993) 1 QAR 60 at paragraphs 101 to 145. I will not repeat that analysis here but suffice it to say that they tend more to regard the observations made in Re Howard as "… empiric conclusions … not intended to be used as determinative guidelines for the classification of information" (Re Rae at page 603).

Instead, the cases emphasise, as did Davies J in Re Howard, that the circumstances of each case must be examined. Indeed, the circumstances must be considered in light of prevailing views for, as Beazley J said in Australian Doctors' Fund Ltd v Commonwealth of Australia, it is not an expression that is:

"… The question of what constitutes the public interest is not a static or
circumscribed notion. As was said in D. v National Society for the Prevention
of Cruelty to Children [1978] AC 171 at 230, per Hailsham LJ "the categories
of public interest are not closed...". See also Sankey v Whitlam per Stephen
J at 60." (page 489)

That brings me to the first ground that is relied on in the Minister's certificate. If disclosure is to be contrary to the public interest, it must be because of some adverse effect to that interest that would, or could reasonably be expected to, follow from disclosure. It must follow that if there are reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest, there must be reasonable grounds to suppose that some adverse effect would, or could reasonably be expected to, follow from disclosure. That adverse effect must be able to be identified.

The Minister's first ground does not identify any adverse effect. In effect, it states that it would be contrary to disclose the documents because the documents come within a class of documents. That class could be described by reference to the common element that each document relates to appointments to the VRB. Cases such as Re Murtagh and Commissioner of Taxation (1983) 6 ALD 112 (Davies J, President and Sir Ernest Coates and Mr Sinclair, Members) highlight the inappropriateness of claims that a document would be contrary to the public interest by reason of its belonging to a particular class when it was said:

" It is clear that the public interest is not to be limited by the prescription of categories or classes of documents the disclosure of which to the public would be contrary to the public interest. The public interest is not to be circumscribed. All documents must be examined to ascertain whether, having regard to the circumstances, their disclosure would be contrary to the public interest." (page 121)

A similar thought was expressed in Re Dillon when, referring to the decision in Re Downie and Department of Territories (1985) 4 AAR 168 at 175-176 (Deputy President and Mr Stevens and Mr Taylor, Members), Deputy President Todd said "… that the mere fact of a document being a high-level communication does not make its disclosure contrary to the public interest. …" (page 331) It is also expressed in the context of a public interest immunity claim for, although a class of documents may be invoked, regard must be had to the factors supporting the class. The Full Court of the Federal Court said in Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1:

"where the class of documents is invoked, the public interest which immunity for the class is said to protect eg political conventions and governmental processes; in this connection the importance of the convention of collective responsibility and the confidentiality required to support it, particularly in areas of current political debate, will be accorded a high degree of respect;" (page 38)

This was not a factor that was the subject of the High Court's consideration on appeal (Commonwealth of Australia v Northern Land Council (1992-93) 176 CLR 604).

The factors supporting the class were the subject of evidence by Mr Evans and Mr Topperwien. Mr Evans is the Minister's Chief of Staff and, in that position, both manages the Minister's office and is his chief adviser. He has held the position since December, 2001. Prior to that, he held the position of Portfolio Adviser to the Minister. He gave both oral and written evidence. The substance of his evidence was set out in paragraphs 45 to 47 of the reasons that I have given to the parties. The effect of s. 58C(3) of the FOI Act is that Mr Evans' evidence in relation to the claim that disclosure of the documents would be contrary to the public interest may not be published.

…

Mr Topperwien acknowledged that a document had previously been disclosed to a former member of the VRB. That had occurred in 1992 … I set out the substance of his evidence in the remainder of paragraph 48 of the reasons that I have given to the parties but the effect of s. 58C(3) of the FOI Act is that Mr Topperwien's evidence in relation to the claim that disclosure of the documents would be contrary to the public interest may not be published.

Having regard to the evidence of Mr Topperwien and Mr Evans, I am not satisfied that there are reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest when the claim is based solely on the description of the class to which the documents belong. There is nothing inherent in documents coming within that class that necessarily leads to the conclusion that their disclosure will adversely affect the public interest. The evidence is that there would be no adverse effect upon the appointment process or that any adjustment would need to be made. There is evidence regarding its possible effect on candour and frankness and on creating a misleading impression of the appointment process and creating controversy. It is my view that those effects do not arise by virtue of the classification of the documents in the way adopted in the first ground of the conclusive certificate. If they arise at all, they arise because of the overall process of appointment.

That brings me to the second, third and fourth grounds together with the first part of the sixth ground of the conclusive certificate. Taken together, they raise an argument that the Principal Member will be less frank and candid in his recommendations and in the information he provides to the Minister should the documents be disclosed. In the early days of the operation of the FOI Act, such a ground held some attraction. Davies J listed it in Re Howard as one of the circumstances in which, subject to the particular evidence in the case, disclosure was likely to be contrary to the public interest. His Honour said:

"Disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest." (page 178)

It was, however, a very short time before this ground lost favour just as it had earlier in cases related to privilege and considered by the High Court in Sankey v Whitlam (1978) 142 CLR 1. Senior Member Dwyer's decision in Re VXF and Human Rights and Equal Opportunity Commission (1989) 17 ALD 491 summarised the position at the time:

"(46) The Tribunal in Re Fewster relied on Re Murtagh and Commissioner for Taxation where the Tribunal rejected the submission that disclosure of recommendations and opinions of officers of the Taxation Office would affect the candour and frankness of those officers. The Tribunal presided over by Davies J said that the argument is now largely limited to high level decision-making and policy-making. In rejecting the argument the Tribunal said at 124:
. . . It is one of the duties of an officer of the Department to argue in favour of proper recovery of taxation. It is also a duty to weigh up arguments in favour of and against the taxpayer. The fact that an officer may express views which favour a taxpayer cannot be held against him or her in any way. The expression of such views cannot be used against him or her at the review stage. If officers are made aware of this fact then they should not temper the nature of their comments nor be reluctant to commit them to paper.
No cogent evidence has been given to this Tribunal either in this review or, so far as we are aware, in any other, that the enactment of the FOI Act 1982 has led to an inappropriate lack of candour between officers of a department or to a deterioration in the quality of the work performed by officers. Indeed the presently perceived view is that the new administrative law, of which the FOI Act 1982 forms a part, has led to an improvement in primary decision-making.

(47) Similar views have been expressed in a number of other Tribunal decisions. In Re Sunderland and Department of Defence (1986) 11 ALD 258 the Tribunal said at 263:
We turn now to two aspects of public interest which were raised in argument but which to us seem inapplicable having regard to the experience in this field of tribunals and courts and their authoritative pronouncements on the subjects.
It is often argued that candour and frankness could not be expected from advisors if they knew that the document in which their advice was contained would be disclosed to the public at large. The absence of such elements in advice would, it is said, lead to inferior decision-making processes. Stephen J, in Sankey v Whitlam (1978) 21 ALR 505 at 545, quoting Lord Salmon, spoke of this argument as 'the old fallacy'. Mason J, at 572, treated the argument in the same way: 'I agree with his Lordship that the possibility that premature disclosure will result in want of candour in Cabinet discussions or in advice given by public servants, is so slight that it may be ignored, despite the evidence to the contrary which was apparently given and accepted in A-G v Jonathon Cape Ltd. I should have thought that the possibility of future publicity would act as a deterrent against advice which is specious or expedient.'

(48) Following those decisions, I do not consider that there is any evidence that candour and frankness in the proper performance of an officer's duties is inhibited by the disclosure of documents pursuant to the Act. I also respectfully agree with Mason J, that the possibility of future publicity would act as a deterrent against advice which is specious or expedient or otherwise inappropriate. In those circumstances the possibility of disclosure under the Act is an aid to, rather than a substantial adverse effect on, the efficient and proper conduct of the operations of an agency." (pages 503-504)

Senior Member Dwyer's conclusions in the final paragraph were, of course, dependent upon the evidence before her as they must be in any case. Stephen J in Sankey v Whitlam seemed prepared to dispense with the ground altogether in the following passage:

" Those who urge Crown privilege for classes of documents, regardless of particular contents, carry a heavy burden. As Lord Reid said in Rogers v. Home Secretary (1973) A.C., at p. 400 the speeches in Conway v. Rimmer (1968) A.C. 910 have made it clear 'that there is a heavy burden of proof' on those who make class claims. Sometimes class claims are supported by reference to the need to encourage candour on the part of public servants in their advice to Ministers, the immunity from subsequent disclosure which privilege affords being said to promote such candour. The affidavits in this case make reference to this aspect. Recent authorities have disposed of this ground as a tenable basis for privilege. Lord Radcliffe in the Glasgow Corporation Case remarked 1956 S.C. (H.L.), at p. 20 that he would have supposed Crown servants to be 'made of sterner stuff', a view shared by Harman L.J. in the Grosvenor Hotel Case [1965] Ch., at p. 1255: then, in Conway v. Rimmer [1968] A.C. 901 , Lord Reid dismissed the 'candour' argument but found the true basis for the public interest in secrecy, in the case of cabinet minutes and the like, to lie in the fact that were they to be disclosed this would 'create or fan ill-informed or captious public or political criticism. . . . the inner workings of the government machine being exposed to the gaze of those ready to criticize without adequate knowledge of the background and perhaps with some axe to grind' [1968] A.C., at p. 952 and see as to the ground of 'candour' per Lord Morris [1968] A.C., at p. 959 , Lord Pearce [1968] A.C., at pp. 987-988 and Lord Upjohn [1968] A.C., at pp. 933-934. In Rogers v. Home Secretary [1973] A.C., at p. 413 Lord Salmon spoke of the 'candour' argument as 'the old fallacy'." (pages 62-63)

Griffiths ACJ was more cautious:

" One reason that is traditionally given for the protection of documents of this class it that proper decisions can be made at high levels of government only if there is complete freedom and candour in stating facts, tendering advice and exchanging views and opinions, and the possibility that documents might ultimately be published might affect the frankness and candour of those preparing them. Some judges now regard this reason as unconvincing, but I do not think it altogether unreal to suppose that in some matters at least
communications between Ministers and servants of the Crown may be more frank and candid if those concerned believe that they are protected from disclosure. For instance, not all Crown servants can be expected to be made of such stern stuff that they would not be to some extent inhibited in furnishing a report on the suitability of one of their fellows for appointment to high office, if the report was likely to be read by the officer concerned. …" (page 40)

The evidence in the case I must consider was based on what could be the effect of disclosure. … [reference to evidence deleted – s. 58C]. There was no evidence of whether the present Principal Member feels any inhibition. He is the person who is the author of the document and who must presumably prepare such a document in the future. No reference is made to any particular aspect of the contents of the document whose disclosure would tend to inhibit frankness and candour in the future. I do not have access to the contents of the documents to ascertain whether they have some inherent characteristics that would lead to a less frank and candid approach being taken in the future. Whether the Principal Member or others in his situation would feel any inhibition remains in the realm of conjecture. Taking all of these matters into account, I am not satisfied that there are reasonable grounds that disclosure of the document would be contrary to the public interest.

I will consider together the fifth ground and the second half of the sixth grounds. The first is concerned with creating a misleading impression of the appointment process and the second with desirability of avoiding controversy. These were touched upon by Griffiths ACJ in Sankey v Whitlam in considering whether documents disclosing advice should be protected. Quite apart from the candour and frankness argument, his Honour turned to another reason that had been:

"… suggested by Lord Reid in Conway v Rimmer [1968] A.C., 952:
'To my mind the most important reason is that such disclosure would create or fan ill-formed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind.'

Of course, the object of the protection is to ensure the proper working of government, and not to protect Ministers and other servants of the Crown from criticism, however intemperate and unfairly based. Nevertheless, it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No Minister, or senior public servant, could effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public. The public interest therefore requires that some protection be afforded by the law to documents of that kind. It does not follow that all such documents should be absolutely protected from disclosure, irrespective of the subject matter with which they deal."

[reference to evidence deleted – s. 58C], I am satisfied that the documents sought by Mr Purcell relate to only one part of the process of appointment to the VRB. The entire process includes both Cabinet and Executive Council as well as the Principal Member, the Minister, senior Ministers in the government and, possibly, persons outside government. The process is facilitated by officers of the Department and staff members in the Minister's office. [reference to evidence deleted – s. 58C], I find that the whole process is a multi-layered process taking into account a number of aspects. Those aspects include the needs of the VRB but extend to wider issues of policy such as, but not limited to, the length of time for which a person should hold a position or the number of times that he or she should be re-appointed to a position. [reference to evidence deleted – s. 58C] In view of that, I am satisfied that there is a reasonable ground for the claim that disclosure of the documents would reveal part, but not all, of the process of appointments that took place and part, but not necessarily all, of the information upon which the appointments were made. That in turn could be expected to lead to a public examination of one aspect of the appointment process and then to criticism without the benefit of the perspective provided by its whole context. Criticism based on part only of the relevant information can be adverse to the workings of government and so adversely affect the public interest.

I have concluded, therefore, that there exist reasonable grounds for the claim that disclosure of the documents would be contrary to the public interest on these grounds. I emphasise that those grounds are reasonable in the sense in which that word has been interpreted by the authorities to which I have referred above. My conclusion does not reflect upon the inherent weight of the grounds. Whether, when taken with all relevant public interests, they would lead me to conclude that disclosure of the document would be contrary to the public interest is another matter entirely and not one to which I have turned my mind.

For the reasons I have given, I:
1.set aside the decision of the respondent dated 3 August, 2001; and
2.substitute a decision that:
(i)the applicant is entitled to access under the Freedom of Information Act 1982 to those documents, or parts of the document, marked Attachment A – terms of appointment, Attachment B – application received and Attachment C – nomination received; and
(ii)in relation to the remainder of the documents, or parts of the document, to which the applicant sought access, there are reasonable grounds for the claim that disclosure would be contrary to the public interest within the meaning of s. 36 of the Freedom of Information Act 1982.

I certify that the fifty-eight preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)
Signed:          ...............................................................
  P. Paczkowski  Associate
Dates of Hearing  23 and 24 April, 2002
Date of Decision  12 November, 2002
Counsel for the Applicant            self
Counsel for the Respondent        Mr P. Hanks QC
Solicitor for the Respondent        Australian Government Solicitor

Actions

Download as PDF Download as Word Document

Citations

Purcell and Veteran's Review Board [2002] AATA 1163

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

0

Re Zacek and Australian Postal Corporation [2002] AATA 473

Smart v Commissioner for Fair Trading [2005] NSWADT 33

[2002] AATA 1163

12 November 2002