Re Zacek and Australian Postal Corporation
[2002] AATA 473
•18 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 473
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V00/1276
GENERAL ADMINISTRATIVE DIVISION )
Re SANDRA ZACEK
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mrs J.R. Dwyer, Senior Member
Date18 June 2002
PlaceMelbourne
Decision 1. The document identified as applicant's document "OO" is not received in evidence. 2. Annexures "B", "C", "D", "E" and "F" to Mrs Zacek's submissions of 26 October 2001 and the document headed "Background History" are not received into evidence. 3. The passage on page 9 of Mrs Zacek's submission, beginning with the words, "At a meeting" down to the bottom of the page is deleted from the submission on the ground that its inclusion would be in breach of s 34(3) of the Administrative Appeals Tribunal Act 1975. 4. The Tribunal sets aside the decision under review and in substitution decides that the only documents or parts of documents which are "exempt documents" under the Freedom of Information Act 1982 are those as to which exemptions are shown as upheld in the following Schedule of Documents.
SCHEDULE OF EXEMPT DOCUMENTS
NO. EXEMPTIONS
A1 no exemption upheld – but to be released with deletions agreed to by the applicant namely: (i) deletion of signature of officer checked on each page except p5; and (ii) deletion of details of advance holder on pp4 and 5
A7 no exemption upheld
A11 no exemption upheld
A12 no exemption upheld
B1 no exemption upheld
C1 no exemption upheld
D2 no exemption upheld
D2.1 no exemption upheld
D5 s36(1), s40(1)(c) and s41 exemption upheld for 8 lines on p4 constituting the fourth paragraph of notes of an interview with a respondent to the second complaint.
D6 s40(1)(c) and s41(1) exemptions upheld for passage starting from first opening bracket in four lines above "ended 2.30" and finishing with the last closing bracket on those lines s40(1)(c) and s41(1) exemptions upheld for last line on p2.
D7 s40(1)(c) and s41(1) exemptions upheld for last line only.
D8 s36(1), s40(1)(c) and s41(1) exemptions upheld for two lines of the document below the time the interview ended. s40(1)(c) and s 41(1) exemptions upheld for the last two lines of the document.
D9 s40(1)(c) and s41(1) exemption upheld for two lines above line stating when interview ended.
D10 s40(1)(c) and s41(1) exemption upheld for 6½ line paragraph on p1. s40(1)(c) and s41(1) exemption upheld for words in brackets on last line on p2.
D12 no exemption upheld
D25 s40(1)(c) and s 41(1) exemptions upheld in respect of 4th, 5th and 6th paragraphs on p1. s41(1) exemption upheld for third paragraph on p2.
D26 no exemption upheld
D29 s41(1) exemption upheld for Ms Layton's home telephone number.
D30 no exemption upheld
D31 no exemption upheld
(Sgd) Joan Dwyer
Senior Member
FORMAL MATTERS………………………………………………………………………..6
THE EVIDENCE……………………………………………………………………………..6
RULING AS TO ADMISSABILITY OF TRANSCRIPT OF CONVERSATION……….7
THE ADMISSABILITY OF THE DOCUMENTS ATTACHED TO MRS ZACEK'S WRITTEN SUBMISSION OF 26 OCTOBER 2001…………………………………….10
BACKGROUND FACTS………………………………………………………………….14
THE DOCUMENTS CLAIMED TO BE EXEMPT………………………………………17
THE FRAMEWORK OF THE ACT………………………………………………………20
THE SUBMISSIONS OF AUSTRALIA POST AS TO RELEVANCE……………….23
THE EXEMPTIONS RELIED ON BY THE RESPONDENT…………………………..25
THE RESPONDENT'S SUBMISIONS AS TO THE CLAIMED EXEMPTIONS…….26
SECTION 36(1)…………………………………………………………………………….26
SECTION 40(1)(c)…………………………………………………………………………36
SECTION 41(1)…………………………………………………………………………….42
THE APPLICATION OF THE CLAIMED EXEMPTIONS……………………………..44
CONCLUSION…………………………………………………………………………….75
FREEDOM OF INFORMATION - request for access to documents relating to an investigation conducted by applicant's employer into applicant's complaints- partial release of documents by employer - claim that remaining documents are exempt documents
Freedom of Information Act 1982 - framework of the act - object of the act - desirability of giving wide access to documents demonstrated by s22 - relevance of documents under s55 (1) (a)
Section 36(1) - two concepts - "deliberative processes involved in the functions of an agency" - "the public interest" - whether "deliberative processes" restricted to policy matters or include deliberation as to personnel and employment issues affecting an individual employee - "public interest" - factors to be considered - concept of public interest narrowed in recent years
Section 40 (1) (c) - meaning of " could reasonably be expected to" - adverse effect of disclosure must be substantial - specific evidence more useful in establishing "a substantial adverse effect" than general evidence
Section 41 (1) - "unreasonable disclosure" - meaning of - whether to world at large or particular applicant
PRACTICE AND PROCEDURE - respondent directed to present its case first - documents claimed to be exempt to be produced before Tribunal under s64 - whether taping face-to-face conversation is improper - s138 Evidence Act 1995 - whether parties may submit additional written material not in evidence at the hearing
Evidence Act 1995 s 135, 138
Listening Devices Act 1969 s 4(1)
Surveillance Devices Act 1999 s 11(2)
Administrative Appeals Tribunal Act 1975 s 34
Freedom of Information Act 1982 ss 3, 4(1), 11, 14, 15, 18(2), 22, 26, 27A, 36(1), 40(1), 41(1), 54, 55(1)(a), 59A(3), 60, 61(1),
Re Salters and Telstra Corporation Limited [2000] AATA 734
Re Griffiths and Migration Agents Registration Authority [2001] AATA 240
Re Strang and Department of Immigration and Ethnic Affairs and Another (1994)
36 ALD 449
Re Waterford and Department of Treasury No 2 (1984) 5 ALD 588
Harris v Australian Broadcasting Corporation and Others (1983) 50 ALR 551
Kavvadias v The Commonwealth Ombudsman (Nº 2) (1984) 6 ALD 198
Re Walton and Ministry of Education (1990) 4 VAR 119
Bartl and Secretary, Department of Employment, Education, Training and Youth Affairs (1998) 28 AAR 140
Re James and Australian National University (1984) 2 AAR 327
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979)
2 ALD 634
Secretary, Department of Workplace Relations & Small Business v The Staff
Development & Training Centre Pty Ltd [2001] FCA 1375
Nevistic v Minister for Immigration and Ethic Affairs (1981) 34 ALR 639
Re Kamminga and Australian National University (1992) 26 ALD 585
Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996)
23 AAR 142
Attorney-General's Department v Cockcroft (1986) 64 ALR 97
Harris v Australian Broadcasting Commission (1984) 51 ALR 581
Public Service Board v Scrivanich (1985) 8 ALD 44
Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534
Re Wilson and Australia Post (AAT 9598, 30 June 1994)
Tillmanns Butcheries Pty Ltd v Australasian Meat Industries Employees' Union (1979) 27 ALR 367
Re Booker and Department of Social Security (AAT 6189, 13 September 1990)
Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219
Arnold (on behalf of Australians for Animals) v Queensland and Another
(1987) 73 ALR 607
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALD N257
Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111
Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39
REASONS FOR DECISION
18 June 2002 Mrs J.R. Dwyer, Senior Member
FORMAL MATTERS
This is an application under the Freedom of Information Act 1982 ("the Act") for review of a decision made on internal review by Australian Postal Corporation ("Australia Post") on 31 August 2000 (T7). That decision varied an initial decision, made 8 June 2000, which released a number of documents to Mrs Zacek and refused access to others (T15). The decision on review released further documents to Mrs Zacek but still refused access to others.
After Mrs Zacek had lodged her application for review with this Tribunal, further documents covered by her request were located by Australia Post and some additional documents were released. During the pre-hearing period, a number of further releases were made. As at the commencement of the hearing on 8 October 2001, there were 37 documents in issue as set out in a Supplementary Further Amended Table of [claimed to be] Exempt Documents dated 8 October 2001 ("the Table"). The documents were identified by the prefix A, B, C or D, depending on the file to which they belonged.
THE EVIDENCEMrs Zacek appeared in person. Mr M. Batskos, a solicitor with FOI Solutions, appeared for Australia Post. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the exhibits received in evidence. The exhibits included a bundle of documents lodged by Mrs Zacek together with her Statement of Facts and Contentions. Those documents were all taken in as exhibit A1 but were separately identified with the letters "A" to "NN" by the Tribunal, in accordance with dates and descriptions specified in Mrs Zacek's statement of facts.
Mrs Zacek also sought to tender a transcript of a conversation she had with her former manager Mr Ritchie. The Tribunal identified that document as applicant's document "OO", but reserved its decision as to whether or not it would be received in evidence.
Mrs Zacek also attached a number of documents to her final written submission. Mr Batskos, in his answering submission objected to the receipt of those documents, after the evidence in the matter had concluded. That matter also remains to be resolved.
Evidence was given by Mrs Zacek, but only to the issue whether document "OO" should be admitted. Mrs Zacek called Ms Cholosznecki, Mr Rafferty and Ms Puri. The respondent called Mr Michael, Ms Dodgson and Mr Paolini.
The Tribunal directed that the respondent present its case first, showing why it claimed that the documents in issue were exempt documents. The Tribunal also required, pursuant to s 64 of the Act, that the documents claimed to be exempt be produced for inspection by the Tribunal. Those documents were before the Tribunal.
RULING AS TO ADMISSABILITY OF TRANSCRIPT OF CONVERSATIONThe document identified as applicant's document "OO" contains 13 typewritten pages certified by a fellow of the Institute of Legal Executives (Victoria) to have been transcribed to the best of her ability from a tape marked A". It also includes a handwritten note dated 21 August 2001 from Mrs Zacek to the Registrar and one page transcribed from a tape of another conversation.
Mr Batskos prepared detailed written submissions on the issue of the admissibility of those documents. He addressed the Tribunal on the point at the close of evidence on 9 October 2001. Mrs Zacek also gave evidence that day as to when and how the conversation was taped. She said it was taped by her wearing a tape recorder when she arrived at work on Friday 17 May 1996. She said she was doing so in case she should find herself in a situation where she felt threatened by the actions of Mr Neville, who she had perceived to be acting in a threatening fashion on an earlier occasion. She said she had switched the tape on when she went into work so it was on while she had a conversation with her manager, Mr Ritchie.
When the Tribunal asked Mrs Zacek what she saw as the significance of the taped conversation she replied (trans. p225):
Really, Mrs Dwyer, the conversation is not all that great. There is no big conspiracy or anything like that on there, . . .
The Tribunal asked (trans. p225):
In that case perhaps it is not all that important, is it?
Mrs Zacek replied (trans. p225):
Well, to me, Mrs Dwyer, really, as I said, I don't find it a problem if you don't want to admit it. I don't find that a problem. I mean, what it is, is in the sense for me is that if listened to it, at least I know the facts so - that is for me. It is not a problem for me if it is not admitted.
Mr Batskos' submissions on this issue raise important questions as to whether the taping of a face-to-face conversation, without disclosing to the other party that the conversation is being taped, is improper. Mr Batskos recognised that the Tribunal is not bound by the rules of evidence (s 33(1)(c) of the AAT Act). He submitted that it should however have regard to the rules of evidence, as the reasons behind them are relevant in considering the concept of "substantial justice", so as to do substantial justice between the parties. He relied on Re Salters and Telstra Corporation Limited [2000] AATA 734 and Re Griffiths and Migration Agents Registration Authority [2001] AATA 240 on this point.
Mr Batskos submitted that the Tribunal should also have regard to s 138 of the Evidence Act 1995 ("the Evidence Act"), which provides; so far as relevant:
138. (1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence
outweighs the undesirability of admitting evidence that has been obtained in
the way in which the evidence was obtained.
. . .
(3) Without limiting the matters that the court may take into account under
subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Mr Batskos submitted:
2.4However, it is contended that obtaining the taped conversation without the consent of the other party to an otherwise private conversation and having it transcribed means that it was improperly obtained or was obtained in consequence of an impropriety. Although the evidence was gathered in a manner that was not strictly illegal or in breach of a statute it was nonetheless obtained in a manner which was highly irregular, improper, illegitimate or at the very least unfair to Mr Ritchie and to Australia Post.
2.5It is submitted that there is an innate unfairness in permitting the transcript to be used as evidence when the conversation was taped without the other party's knowledge or consent. Such unfairness has been found to exist where an individual knew that an interview was being taped and was not caught by surprise, but the interview happened to not be properly conducted (see Re Griffiths at para 29). By comparison, the degree of unfairness in the present circumstances is even greater as Mr Ritchie was not aware of the taping.
The Tribunal in Re Salters, and in Re Griffiths, also referred to s 135 of the Evidence Act which gives a court a discretion to exclude evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, be misleading or confusing, or cause or result in undue waste of time.
In this matter Mrs Zacek readily conceded that the evidence contained in the transcript was in her view of little importance. As Mrs Zacek had no legal representation, I looked at the transcript myself to check that Mrs Zacek was not overlooking any material which I considered to be relevant and significant. I confirmed her assessment that, "the conversation is not all that great". In my view it has no probative value as to the issues which must be determined in this matter. Thus I have decided not to admit the document identified as document "OO".
Accordingly I am not required to decide on the propriety or otherwise of taping a face-to-face conversation, without advising the other party. I indicated to Mr Batskos during the hearing that I saw that as a difficult issue. He conceded that the taping of a conversation to which Mrs Zacek was a party, in the circumstances in which she did so, was not unlawful under s 4(1) of the Listening Devices Act 1969 (Vic) which was in force at the time of the taping by Mrs Zacek. Similarly it is not clear that it would be unlawful under s 11(2) of the Surveillance Devices Act 1999. The issue for consideration would be whether there is any impropriety, even if no illegality, in recording and publishing such a conversation, "for the protection of the lawful interests of the person making it". On the one hand, as Mr Batskos submitted, it could be seen as a breach of privacy. On the other hand, it could be seen as the most accurate way of recording a significant conversation. As I have decided to reject the document because of the lack of relevance and probative value, it would be inappropriate for me to do any more than pose the questions which remain for consideration another time.
THE ADMISSABILITY OF THE DOCUMENTS ATTACHED TO MRS ZACEK'S WRITTEN SUBMISSION OF 26 OCTOBER 2001I was expecting Mrs Zacek to make her closing submission on 10 October 2001. Her husband telephoned my Personal Assistant that morning. He reported that Mrs Zacek was not fit to come in, "due to extreme tiredness" having stayed up too late working on her submission. I directed, with the consent of Mr Batskos, that Mrs Zacek lodge her submission in writing by 26 October 2001, and that Mr Batskos have until Friday 2 November 2001 to reply to her submission. A letter to that effect was sent to both parties.
Mrs Zacek lodged her written submission as directed on 26 October 2001. As she pointed out in paragraph 1 of her written submission she is not a lawyer. Her submission addresses each of the documents in issue considering each exemption claimed in respect of that document. Document D2 is described in the Table as a letter from Barry Neville to John Semmler "discussing directions, opinions and recommendation of both the author and others in relation to Mrs Zacek's return to work plan contains handwritten annotations." As to that document Mrs Zacek submitted:
8.1Any right to exemption has been waived by the respondent's providing a copy of this document to Dr Mendelson, who then referred to it in a report to the respondent dated 30 May 1996. A copy of that report was served on me in connection with compensation proceedings. A copy of the report is annexed hereto and marked "A". Document D2 is listed as item 4 on page 1 of the report.
8.2I believe that the document contains untrue or incorrect statements about me, which caused Dr Mendelson to describe me as paranoid (see page 9 of the report), a diagnosis not made by my treating psychiatrist. I wish to be able to correct those statements. In that regard, annexed hereto are copies of various reports from my psychiatrist, marked as follows:
"B" – Letter dated 7 March 1996 from Ms Puri to Dr Ranaweera;
"C" – Report dated 14 March 1996 by Dr Ranaweera; and
"D" – Report dated 18 May 1996 by Dr Ranaweera.
Mr Batskos in the respondent's submission in reply referred to the annexures to Mrs Zacek's submission. He submitted that the Tribunal should not have regard to that material. He wrote:
1.2To the extent that the applicant's submissions purport to introduce additional untested evidence (either by way of documentation or by way of purported written submission) that should not be considered by the Tribunal. The applicant had ample opportunity to introduce such material during the hearing. Such material includes numerous passages contained within the document entitled "submissions", all of the document headed "background history" and all of the attached documents to the extent that they are not otherwise already before the Tribunal.
Mr Batskos is quite correct in asserting that Mrs Zacek had ample time to introduce material during the hearing. However, that does not deal with the points that Mrs Zacek may not have understood that documents can not generally be tendered in evidence during submissions, and that it is only on rare occasions that an exception to the general rule may be appropriate, for instance if the further evidence does not raise any contentious issues as to which the other party might seek to call further evidence. In such situations the opportunity to make submissions as to the new material may be all that is required.
In answer to Mrs Zacek's submission as to document D2, Mr Batskos submitted:
2.10In relation of paragraph 8.1 of the applicant's submissions, it is submitted that disclosure of a document to a doctor in the context to the compensation claim where obligations of confidence exist or can be implied is not the same as disclosure to the world at large under the FOI Act. In any event, this is not a document the subject of any kind of privilege where the privilege is "waived" as asserted by the applicant.
2.11In paragraph 8.2 of the applicant's submissions, she identifies the passage in Dr Mendelson's report dated 30 May 1996 from which Ms Puri derived her conclusions that the applicant was paranoid (see Ms Puri file note which is Exhibit FF). A comparison of the second last paragraph of Dr Mendelson's report with Ms Puri's file note make it clear that Ms Puri did not misinterpret Dr Mendelson's report and did not presume to form her own conclusions. Dr Mendelson made it clear that such personality traits as those of the applicant are generally termed "paranoid". This confirms the evidence of Ms Puri that she only made conclusions based on the available evidence before her.
2.12In addition, it should be noted that the matters raised before the Tribunal are in relation to a decision to refuse access. They do not in any way relate to a request for amendment of personal information. Therefore comments by the applicant along the lines of seeking amendment (other than to indicate a purpose for seeking access to documents) are irrelevant.
Ms Zacek's annexure A, the report of Dr Mendelson of 30 May 1996, is already before the Tribunal in the T documents, (as one of the annexures to T4), there is no problem in Mrs Zacek attaching to her submission a copy of a document in the T documents so as to draw attention to a passage in the document.
The other annexures described by Mrs Zacek as B, C and D are, so far as I can tell, material which was not in evidence at the close of the hearing. If Mrs Zacek intended to rely on Annexure B, a letter dated 7 March 1996 from Ms Puri to Mrs Zacek's treating psychiatrist, Dr Ranaweera, it would have been necessary for her to include that letter in her bundle of documents marked as exhibit A1. Further she should have asked Ms Puri about that letter in cross-examination. I rule that letter to be inadmissible as part of the applicant's evidence.
The other documents described by Mrs Zacek as annexures C and D are reports from her psychiatrist Dr Ranaweera. She sought to rely on them to show that her treating psychiatrist did not diagnose her as paranoid. During Ms Puri's evidence there was reference to Dr Ranaweera (trans. pp198 and 199) and I commented that we did not have his reports. Mrs Zacek did not at that stage indicate that she intended to produce those reports. It is clearly too late to seek to produce his reports after the calling of evidence has concluded, unless that was agreed upon earlier. However, as is explained later in these reasons there is other evidence relevant to the issue Mrs Zacek raised in respect of document D2.
Mr Batskos also objected to a document Mrs Zacek included with her submission which she headed Background History. That document is a combination of material she could have given in evidence, if she had chosen to give evidence as to matters other than the creation of document "OO", and submissions based in part on the evidence of Ms Choleznecki and in part on other material which Mrs Zacek attached as annexures E and F to her submission. That new material raises issues which were not canvassed at all during the hearing. It also appears to have no relevance to the question whether or not the documents in issue are exempt documents. That material cannot be received into evidence.
Mr Batskos, in his submission in reply, also objected to the inclusion by Mrs Zacek in the second half of page 9 of her submission, of an account of a conversation she had with him at a conference held in accordance with s 34 of the AAT Act. As Mr Batskos pointed out, s 34 provides:
34 Conferences
(1AA)This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.
(1)Where an application is made to the Tribunal for a review of a decision, the President may, if he or she thinks it desirable to do so, direct the holding of a conference of the parties or their representatives presided over by the President or another presidential member, by a non-presidential member assigned to the relevant Division or by an officer of the Tribunal.
(2)The President may also direct that such a conference is to be held in the case of applications made to the Tribunal for a review of a decision of a kind specified in the direction.
(3)At the hearing of a proceeding before the Tribunal, unless the parties otherwise agree, evidence shall not be given, and statements shall not be made, concerning any words spoken or act done at a conference held in accordance with this section.
Mrs Zacek should not, without the agreement of Mr Batskos, have included in her submission any statement concerning words spoken by him at a conference held under s 34 of the AAT Act.
I have deleted from Mrs Zacek's submission all the attachments, except annexure A. I have also deleted the document headed Background History, and the second half of page 9, beginning with the words: "At a meeting" down to the bottom of the page. Further, Mr Batskos' submission, at paragraphs 2.14 and 2.15, that the matters stated in paragraphs 11.1 and 11.2 and 12 of Mrs Zacek's submission are not relevant to whether or not the documents in issue are exempt documents is clearly correct. However it is not necessary for those paragraphs to be deleted from the submission.
BACKGROUND FACTSIt is helpful to have some context in order to understand the discussion as to the issues for determination, namely whether or not certain documents are exempt documents under the Act. Because Mrs Zacek gave evidence only as to the issue of the admissibility of the document identified as "OO", there is no passage of evidence from which those facts may easily be taken. The respondent in its Statement of Facts and Contentions set out the Background Facts as follows:
1.1The applicant is a former employee of the Australian Postal Corporation ("Australia Post"). The applicant was at all material times until December 1996 employed by Australia Post as a Postal Services Officer at the Northcote Plaza Retail Shop of Australia Post or at the Northcote Delivery Centre.
1.2In November 1995, the applicant complained to Australia Post alleging that she had been subjected to harassment and discrimination by her co-workers at the Northcote Plaza Retail Shop which resulted in her suffering stress and anxiety ("first harassment complaint").
1.3A Joint management/Union investigation team was formed in December 1995 to investigate the first harassment complaint. In January 1996 the inquiry into the applicant's first harassment complaint found that complaint not proven. However the inquiry found that the majority of other concerns of a non-harassment nature to be in favour of the applicant. The applicant complained about the manner in which the investigation was carried out and about the findings. (emphasis added)
1.4In December 1995 and January 1996 the applicant also made some complaints to the Office of the Minister for Communications and the Arts, Hon Mr Michael Lee in relation to her first harassment complaint, its investigation and the tender processes followed at the Northcote Plaza Retail Shop for the awarding of a cleaning contract for those premises. There was a review conducted of the inquiry. The Deputy General Manager, Victoria and Tasmania, of Australia Post upheld the findings of the inquiry after that review of the inquiry but found even further instances of inappropriate management practices. (emphasis added)
1.5Between late 1995 and early May 1996 the applicant was absent from work. After an initial decision by Australia Post to refuse compensation payments, that decision was overturned on internal review and the applicant received workers' compensation payments for the full period (including back payments).
1.6In early May 1996 the applicant returned to work at the Northcote Delivery Centre, not the Northcote Plaza Retail Shop. Shortly after commencing the applicant made a complaint of harassment against three persons at the Northcote Delivery Centre. By a written formal complaint dated 29 May 1996 the matter was referred to the Australia Post State Discrimination Review Committee ("second harassment complaint").
1.7A joint management/Union inquiry was conducted on behalf of the State Discrimination Review Committee. In July 1996 the State Discrimination Review Committee found the allegations of harassment not substantiated.
1.8In about October 1996 the applicant lodged with the Equal Opportunity Commission of Victoria (as agent for the Human Rights and Equal Opportunity Commission) a complaint alleging sex discrimination in employment in relation to both the first and second harassment complaints referred to above.
1.9In December 1996 the applicant resigned from her employment with Australia Post.
1.10In April 1998 the Equal Opportunity Commission formed the opinion that the applicant's complaint lacked substance and decided not to continue to inquire into the complaint. The applicant sought no review of that decision.
That appears to be a fair summary of the events leading up to the lodging by Mrs Zacek of the requests under the Act which resulted in the decisions under review in these proceedings. It does however seem appropriate to add that prior to November 1995 Mrs Zacek had been an employee or agent of Australia Post for some years, and had worked in other Post Offices. So far as the evidence reveals her work had been satisfactory and she had not had any personal conflict with other managers. In fact, as the January 1996 report (A1 attachment E) reveals, "[T]here has been no inference whatsoever by anyone that her honesty and good record is in dispute. Rather, that she is held in high regard as a very good and effective counter officer".
Mr Batskos, quite correctly and properly, included in his statement of Background Facts, at paragraphs 1.3 and 1.4 the passages emphasised by the Tribunal. They show that although the investigations into Mrs Zacek's first complaint did not establish that she had suffered harassment and discrimination, they did confirm her allegations as to a number of instances of poor management practices at the Northcote Plaza Retail Shop where she worked. Ms Puri in her summary of that investigation report to Dr Mendelson (T docs attachment to T4) was less fair and accurate. She wrote of the report, "To be brief, except for one allegation, the others were found not to be proven". That does not give an accurate impression as to the result of the investigation of the first complaint. It is unfortunate that due to the characterisation of the complaint as one of harassment rather than as an industrial issue, as put by Mrs Zacek to Mr Rafferty, it was described as not proven. If it had been treated as an industrial complaint about poor management processes it would appear that it would, on the same evidence, have been found to be proven. The four page complaint (A1 Attachment R) instances many industrial issues. The characterisation of the complaint as a harassment complaint which was not proven would appear, from a reading of the documents in exhibit A1 to have been a major factor in Mrs Zacek's dissatisfaction with the first report (A1 Attachment E), even though it made many findings favourable to her.
One other factor which gave rise to her feeling of grievance when she read the first report seems to have been recommendation 4, to the effect that Mrs Zacek should be offered, "counselling services, at Australia Post's expense, to enable her to cope with her situation and assist in her return to work". However well intentioned that recommendation may have been, Mrs Zacek interpreted it as offensive. It was therefore counter productive. Other factors which added to Mrs Zacek's grievance were the difficulty she had getting statistics which, when they were obtained, did establish her accuracy on one issue. Another problem was the fact that it was not until a second report, by Mr Flynn on 23 April 1996, that it was acknowledged that Mrs Zacek's Postal Manager had altered entries in the Attendance Book "in an attempt to have documentary support for his defence against the claims against him" [A1 Attachment V]. Against that background there were significant delays in achieving a return to work for Mrs Zacek. When it finally took place, in May 1996, as set out by Mr Batskos, unfortunately it lasted only a matter of days before the situation broke down.
THE DOCUMENTS CLAIMED TO BE EXEMPTThe documents remaining in issue at the start of the hearing were set out in the Table dated 8 October 2001. The Table is as follows:
SUPPLEMENTARY FURTHER AMENDED
TABLE OF EXEMPT DOCUMENTS [as claimed by the respondent]
AS AT 8 OCTOBER 2001
NO. DATE AUTHOR ADDRESSEE DESCRIPTION PAGES IN DISPUTE EXEMPTIONS
A FILE NO. 0563-96 – COMPLAINT TO MINISTER
A1 30 June 1995 Personalised staff balance sheets. (7 pages) Signaturesnames and advance no. 41 Partial release
A7 1 February 1996 Warren Hahnel John Semmler Australia Post Memorandum informing the addressee about action taken in regard to Ms Zacek's harassment complaint. Includes 1 paragraph about action to be taken in respect of one other employee 1 paragraph 41 Partial release
A11 1 May 1996 Graham Flynn Gerry Ryan Letter detailing actions taken and principle conclusions of a review into Ms Zacek's harassment complaint. 2 paragraphs and half a line 36(1), 41 Partial release
A12 13 February 1996 and undated draft letter Gerry Ryan Graham Flynn Letter from G Ryan to G Flynn. (1 paragraph) A Draft letter to Ms Zacek outlining the results of a Review into her harassment complaint. (1 page) 1 full page, 1 paragraph 36(1), 41 Partial release
B FILE NO. 96-5541-1 INVESTIGATION BY INTERNAL DISCRIMINATION REVIEW COMMITTEE
B1 24 July 1996 Jane Layton & Cliff Michael State Discrimination Review Committee "Staff in Confidence" report on investigation into allegations by Mrs Zacek. (8 pages) 3 full pages and parts of 2 pages 36(1), 40(1)(c), 41 Partial release
C PERSONNEL FILE
C1 10 December 1996 John Semmler Michael Kelly Memorandum reporting the outline of a conversation with Ms Zacek regarding a letter sent to her discussing her employment status. Half a sentence 36(1), 40(1)(c) Partial release
D FILE NO.1597-97 HREOC COMPLAINT
D2 14 May 1996 Barry Neville John Semmler Letter discussing directions, opinions and recommendations of both the author and others in relation to Ms Zacek's return to work plan. Contains hand written annotations. 1 36(1), 40(1)(c), 41
D2.1 14 May 1996 Peter Richie John Semmler Letter responding to addressee's request for the author's account of events surrounding Ms Zacek's complaint. Contains hand written annotations. 1 36(1), 40(1)(c), 41
D5 26 June 1996 Jane Layton - Summary of interviews with five people about the events surrounding Ms Zacek's complaint. Appears to have been faxed on two occasions. 4 36(1), 40(1)(c), 41
D6 3 July 1996 Cliff Michael - Transcript of interview containing opinions about the events surrounding Ms Zacek's complaint. 2 36(1), 40(1)(c), 41
D7 3 July 1996 Cliff Michael - Transcript of interview containing opinions about the events surrounding Ms Zacek's complaint. 3 36(1), 40(1)(c), 41
D8 3 July 1996 Cliff Michael - Transcript of interview containing opinions about the events surrounding Ms Zacek's complaint. 1 36(1), 40(1)(c), 41
D9 3 July 1996 Cliff Michael - Transcript of interview containing opinions about the events surrounding Ms Zacek's complaint. 1 36(1), 40(1)(c), 41
D10 3 July 1996 Cliff Michael - Transcript of interview containing opinions about the events surrounding Ms Zacek's complaint. 2 36(1), 40(1)(c), 41
D12 26 February 1997 Rod McDonald Mary Tanner, Equal Opportunity Commission A paper headed "In Confidence", containing submissions by Australia Post to EOCV pertaining to Ms Zacek's allegations of discrimination. 6 40(1)(c), 41
D25 18 July 1997 Debra Dodgson - File note pertaining to courses of action taken in relation to Ms Zacek's allegations of discrimination. 2 36(1), 40(1)(c), 41
D26 From 18 July- 8 August 1997 Debra Dodgson - File notes pertaining to courses of action taken in relation to Ms Zacek's allegations of discrimination. 1 36(1), 40(1)(c), 41
D29 c.28/6/96? Cliff Michael Transcript of Interview with Ms Zacek relating to her allegations of discrimination. 4 36(1), 40(1)(c), 41
D30 Unknown Unknown Hand written document outlining events surrounding Ms Zacek's return to work program. 1 36(1), 40(1)(c), 41
D31 Unknown Debra Dodgson Hand written document outlining sequence events surrounding Ms Zacek's allegations of discrimination 7 36(1), 40(1)(c), 41
THE FRAMEWORK OF THE ACT
The Act provides, in s 15, for a request for access to documents to be made. Under s 26 written notice with written reasons shall be given in respect of any decision to refuse access. The Act provides in s 54 for internal review of decisions including decisions refusing to grant access to a document, or not granting access to all the documents to which a request relates. Review of decisions by the AAT is provided for in s 55. Such an application may only be made either where an internal review decision has been made, or where 30 days have elapsed since an agency received an application for internal review, and there has been no notification of the result of the review.
The Act applies to documents of an agency and imposes obligations on agencies. The term "agency" is defined in s 4(1) as follows:
"agency" means a Department, a prescribed authority or an eligible case manager;
It was not in issue that Australia Post, is a prescribed authority within the meaning of that term in s 4(1) of the Act. Under s 60 of the Act, the agency, rather than the decision-maker, is a party to proceedings before the Tribunal.
Before looking at the sections relied on by Australia Post as exempting certain documents from release under the Act, it is appropriate to refer to s 3 of the Act. Section 3(1) expressly states that the object of the Act is to make information available to the public and that discretions are to be exercised in such a way as to facilitate and promote the disclosure of information. Section 3 of the Act provides:
3 (1) The object of the Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by :
(a)making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(b)creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
(c)creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.
(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
There are other relevant general sections of the Act. Section 11 provides:
11 (1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person's right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency's or Minister's belief as to what are his or her reasons for seeking access.
Section 14 provides for the giving of information to the public by Ministers and agencies, even outside the scope of the Act. It reads:
14 Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.
However, that discretion cannot be exercised by this Tribunal. Section 18(2) of the Act provides:
18(2) An agency or Minister is not required by this Act to give access to a document at a time when the document is an exempt document.
The Tribunal does not have power to decide that access be given to an exempt document.
Section 61(1) of the Act deals with onus of proof. It provides:
61. (1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.
The desirability of giving wide access to documents is demonstrated by s 22 of the Act, which provides that where exempt information can be deleted, documents are to be released with deletions. It reads:
22(1) Where:
(a)an agency or Minister decides:
(i)not to grant a request for access to a document on the ground that it is an exempt document; or
(ii)that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b)it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i)would not be an exempt document; and
(ii)would not disclose such information; and
(c)it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
As explained by the Tribunal on numerous occasions, the Act in ss 27A and 59A(3) provides a procedure for informing people, whose personal information is contained in documents, of the application before the Tribunal. Once an application is made for review by the Tribunal of a decision under s 41(1) of the Act, s 59A(3) requires that action be taken to notify the person, in respect of whom the exemption is claimed, of the application. It provides:
59A(3) Where:
(a)on a request having been made for access to a document containing personal information about a person (including a deceased person), an agency or Minister decides not to grant access to the document; and
(b)an application is made to the Tribunal for a review of the decision; the agency or Minister must, as soon as practicable, take all reasonable steps to inform the person, or, if the person is deceased, the legal personal representative of the person, of the application.
People who object to disclosure of information concerning their personal affairs may write to the Agency or to the Tribunal expressing views on the matter. Alternatively they may decide to apply to be joined as a party to the proceeding as happened in Re Strang and Department of Immigration and Ethnic Affairs and Another (1994) 36 ALD 449.
In this matter Mr Batskos wrote s 59A(3) letters to 33 people in respect of whose personal information a s 41(1) exemption was claimed. He lodged, exhibit R8, a Table showing whether a response had been received and if so, whether the person consented or objected to the disclosure of personal information.
THE SUBMISSIONS OF AUSTRALIA POST AS TO RELEVANCEThe first submission of Australia Post was that the Tribunal's jurisdiction under s 55(1)(a) of the Act is to decide an application for review of a decision "refusing to grant access to a document in accordance with a request". Mrs Zacek by letter dated 15 May 2000 requested (T16):
documents under the FOI legislation pertaining to Sandra Zacek including medical reports
ALL DOCUMENTS
" TAPES
" EMAIL
" DATA BASE
" RECORDS
" FAXES
" COPIOUS NOTESALL OTHER DOCUMENTS THAT HAVE NOT BEEN LISTED FROM ALL DEPARTMENTS.
The respondent submitted that, to the extent that the disputed documents contain information not pertaining to Mrs Zacek, but pertaining only or predominantly to other individuals, such information could reasonably be regarded as irrelevant to the request. Mr Batskos submitted that the remaining parts of documents A1, A7 and part of A11 should be regarded as irrelevant to the request.
Document A1 is seven pages of personalised staff balance sheets. Those pages have been released to Mrs Zacek save for the signatures, names and advance numbers appearing on those documents. The documents are relevant to Mrs Zacek's request because one of the matters covered in her first complaint (A1 Attachment A) was the treatment of surpluses and deficiencies at the High Street, Northcote Post Office at the time of changeover to Northcote Plaza. That issue was acknowledged to be the first issue Mrs Zacek had raised, in the report of Mr Minnis and Mr Rafferty attached to Mr Hahnel's letter of 29 January 1996 (A1 Attachment E).
The respondent claimed that the paragraph of A7, which has been deleted, is not relevant as it refers to action to be taken in respect of another employee. That paragraph relates to action to be taken in respect of the other employee, because of conduct of that employee to which Mrs Zacek had referred in her letter of complaint (A1 Attachment A). I find that the material claimed to be irrelevant, is relevant to Mrs Zacek's request for all material pertaining to her. It pertains directly to her complaint as it details action taken in response to Mrs Zacek's complaint ( see para 1 of p6 of Exhibit A1, attachment E).
Mr Batskos also submitted that the paragraphs deleted from page 1 of document A11 are not relevant to Mrs Zacek's request, in that they do not pertain to her. In the two paragraphs on page 1, as to which an exemption is claimed, Mr Flynn, has set out certain matters about another individual and matters of a broader management concern. Immediately following those paragraphs he has written in a passage as to which no exemption is claimed:
In this work environment, I did not doubt Mrs Zacek's sincere belief that the Northcote Retail Shop was stressful for her.
That passage establishes that the passages claimed to be irrelevant do pertain to Mrs Zacek. They refer to matters which she claimed, and the writer acknowledged, were stressful for her. The other deletions on page 1 quote Mrs Zacek's opinion on an issue. That is also relevant to her request.
I find that the parts of documents A1, A7 and A11, page 1, as to which exemptions have been claimed do pertain to Mrs Zacek and thus are relevant to her request for access under the Act.
THE EXEMPTIONS RELIED ON BY THE RESPONDENTThe exemptions relied on by the respondent are ss 36(1), 40(1)(c)and 40(2) and 41(1). Those sections provide as follows:
36.(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a)would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.
40.(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
. . .(c)have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;
. . .
(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.
41.(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
The term "personal information" is defined in s 4(1) as follows
"personal information" means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion;
THE RESPONDENT'S SUBMISIONS AS TO THE CLAIMED EXEMPTIONS
Mr Batskos, in his very helpful written submissions and in his oral submissions, addressed s 41 first. He explained that he did so because that exemption has been claimed in respect of almost all of the documents as to which an exemption is claimed. Mr Batskos submitted that to grant access to those documents would involve the unreasonable disclosure of "personal information" under s 41(1). I have decided to deal with the exemptions in the order in which they appear in the Act. I will discuss the operation of each of the claimed exemptions before deciding as to each document whether or not it is an exempt document.
SECTION 36(1)That section as set out above provides:
36.(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a)would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.
. . .
(5) This section does not apply to a document by reason only of purely factual material contained in the document.Section 36(1) requires consideration of two concepts in particular. The first is the meaning of "deliberative processes involved in the functions of an agency". The second is "the public interest" as referred to in s 36(1)(b).
(i) deliberative processes involved in the functions of an agency
The first concept that requires consideration is the meaning of "the deliberative processes involved in the functions of an agency." Mr Batskos submitted that the term "deliberative processes" in s 36(1)(a) had been held to refer to "the thinking processes of the agency". That was the conclusion of the Tribunal in Re Waterford and Department of Treasury No 2 (1984) 5 ALD 588 at pp 606-607 where the Tribunal said:
58 As a matter of ordinary English the expression "deliberative processes" appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. "Deliberation" means "The action of deliberating: careful consideration with a view to decision": see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description. Only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does s 36 (1) (a) come into play.
59 It by no means follows, therefore, that every document on a departmental file will fall into this category. Section 36 (5) provides that the section does not apply to a document by reason only of purely factual material contained in the document (see, in this regard, the Full Court decision in Harris (1984) 51 ALR 581). See also s 36 (6) relating to reports and the like. Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36 (1) (a) applies.
60 It is documents containing opinion, advice, recommendations etc relating to the internal processes of deliberation that are potentially shielded from disclosure - documents that might, perhaps, have been more aptly described in the headnote as "Internal Thinking Documents". Out of that broad class of documents, exemption under s 36 only attaches to those documents the disclosure of which is "contrary to the public interest": s 36 (1) (b) of the FOI Act and cf ss 35, 36, 37 (1) (b) and 37 (2) of the Administrative Appeals Tribunal Act 1975.
61 In order to test the application of s 36 (1) (a) to particular documents, it is helpful, in our view, to endeavour to identify what are the "deliberative processes" involved in the functions of the particular agency or Minister or the Government of the Commonwealth to which the requested documents are said to relate. In the present case, Mr Roberts identified the "deliberative processes" involved in the functions of Treasury as the ongoing deliberative processes involved in dealing with Mr Waterford's request for access. This submission was not challenged by Mr Waterford and in the circumstances, given the very limited argument on the point, we think that we should accept it. Accordingly, in the present case, any document which would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that took place, in the course of or for the purposes of those deliberative processes is within the ambit of s 36 (1) (a).
(emphasis added)The decision in Re Waterford did not fully adopt what was said by Beaumont J in Harris v Australian Broadcasting Corporation and Others (1983) 50 ALR 551. His Honour there stated at p561:
. . .
It may be accepted that the question whether the services of a single officer or employee should be terminated does not, of itself, necessarily involve a policy matter the subject of deliberative process. However, in the present case, the terms of reference extend well beyond that question into fields of policy-making. The reports, although interim and, to some extent, factual in character, are within the terms of reference and accordingly derive their character from that wider context. In my opinion, the reports, viewed in that context, are in the nature of opinion, advice or recommendation prepared for the purposes of the deliberative processes involved in the functions of the Corporation within the meaning of s 36(1)(a).
The Tribunal, in Re Waterford, regarded the suggestion that "deliberative processes" are synonymous with "policy forming processes" as obiter, but suggested that Beaumont J should not be understood as saying that "deliberative processes" are limited to policy matters. It was on that basis that the Tribunal in Re Waterford gave the term the wider meaning of "thinking processes" involved in the functions of an agency.
The facts of this matter make it important to consider whether "deliberative processes involved in the functions of an agency" are restricted to deliberative processes about policy matters, or whether they also include "deliberation" as to personnel and employment issues affecting an individual employee. Surprisingly, I have not found a definitive answer in the authorities which Mr Batskos put before the Tribunal, nor as a result of further research. The most thorough consideration of the issue seems to be that of Sheppard J in Kavvadias v The Commonwealth Ombudsman (Nº 2) (1984) 6 ALD 198 at pp209-212. His Honour stated, at p211, that he would have leant towards a wider meaning than did Beaumont J in Harris. He considered that to be more in accord with the definitions of "deliberate" and "deliberation" in the Shorter Oxford Dictionary:
According to the Shorter Oxford English Dictionary the word "deliberative" means, "pertaining to deliberation; having the function of deliberating". The verb "deliberate" means, "to weigh in the mind, to consider carefully with a view to decision, to think over …; to use consideration with a view to decision; to think carefully; to take time for consideration …; to resolve, determine". The noun "deliberation" means "the action of deliberating; careful consideration with a view to decision; the consideration and discussion of the reasons for and against a measure by a number of councillors; a resolution or determination; deliberateness of action; absence of hurry; leisureliness". The adjective "deliberate" means "well weighed or considered; carefully thought out; done of set purpose; studied; not hasty or rash.
Sheppard J concluded that Beaumont J had not expressed a final view on the meaning of the expression "deliberative processes" and refrained from doing so himself, saying at p211, "I do not find it necessary to express such a view either." His Honour decided the case before him on the following basis, at p211:
Assuming the expression in question to have imported into it the notion that the deliberative processes referred to must be policy-forming processes, an assumption I make for the purpose of dealing with this part of the argument but do not necessarily accept, I am satisfied from a reading of the draft report that it was prepared at least partly for the purposes of the policy-forming processes involved in the functions, if not of the Ombudsman, then clearly of the Department of Social Security.
In Re Walton and Ministry of Education (1990) 4 VAR 119, the Administrative Appeals Tribunal of Victoria quoted the Tribunal decision in Re Waterford (Nº2) as authority for the view that the term "deliberative processes" is to be given a wide meaning. The Tribunal in Re Walton did not make any reference to the Federal Court decisions of Harris and Kavvadias. Similarly, in Re Bartl and Secretary, Department of Employment, Education, Training and Youth Affairs (1998) 28 AAR 140, this Tribunal, referring only to Re Waterford and Re Kavvadias, and not adverting to the view of Beaumont J in Harris, or to Sheppard J's recognition of that view, interpreted "deliberative processes" as covering any thinking processes of a department.
Mr Batskos, at paragraph 6.6 of his written submission, cited Re James and Australian National University (1984) 2 AAR 327 as authority for the view that "deliberative processes" is not confined to policy making, but should be given a wide interpretation. That decision of the Tribunal was consistent with the approach adopted in Re Waterford and rejected, at p335, an argument that the Tribunal there had not followed Beaumont J in Harris.
I accept that Ms Dodgson would prefer that there not be disclosure of material in the nature of preliminary working notes. They are rough and brief. But I cannot find that disclosure would be contrary to the public interest. I have decided that the final response to the EOCV, (Document D12) is not an exempt document. A person drafting a document in response to a complaint, as a management function, should be able to consider and summarise material and even advance ideas in preliminary notes without the expectation that they will be publicly disclosed, but that is a matter of convenience rather than a matter of public interest. I do not find that it would be contrary to the public interest to release this rough working draft. The s 36(1) exemption is not upheld.
In regard to s 40(1)(c) of the Act, Mr Batskos relied only on the assertion that interviews were conducted on a confidential basis. The document is basically a summary of earlier investigations and has very little in it as to individual responses. There is nothing particularly sensitive and the respondents to the second complaint have not objected to the release of personal information. I do not accept that the disclosure of the document would have a substantial adverse effect on the management of personnel.
As to s 41(1) of the Act, I am satisfied that there is no personal information in the document of a sensitive nature, such as to cause embarrassment or distress to the individuals named. I find that disclosure of the document would not involve the unreasonable disclosure of personal information about any person.
CONCLUSIONThe applicant is entitled to have access to those documents which are not exempt documents under the Act.
The exemptions upheld are as set out in the Table forming part of the decision in this matter.
I certify that the 181 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Joan Dwyer.
Signed: Grace Carney
AssociateDate/s of Hearing 8 and 9 October 2001
Date of Decision 18 June 2002
Counsel for the Applicant Nil
Solicitor for the Applicant Nil -Self
Counsel for the Respondent Nil
Solicitor for the Respondent Mr N Batskos, FOI Solutions
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