Sampak Export Pty Ltd and Anor and Secretary, Department of Agriculture, Fisheries and Forestry and Anor
[2004] AATA 1276
•1 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1276
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/221; W2003/282
GENERAL ADMINISTRATIVE DIVISION ) Re SAMPAK EXPORT PTY LTD Applicant
And
SECRETARY, DEPARTMENT OF AGRICULTURE, FISHERIES AND FORESTRY
Respondent
And
VETERINARY PRACTITIONERS REGISTRATION BOARD OF VICTORIA
Party Joined
Re
PAUL LESLIE MILLER
Applicant
And
SECRETARY, DEPARTMENT OF AGRICULTURE, FISHERIES AND FORESTRY
Respondent
And
VETERINARY PRACTITIONERS REGISTRATION BOARD OF VICTORIA
Party Joined
DECISION
Tribunal Associate Professor S D Hotop, Deputy President Date1 December 2004
PlacePerth
Decision · Application No W2003/221
The decision under review is affirmed.
· Application No W2003/282
The decision under review is affirmed.
...........(sgd S D Hotop).......................
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – “reverse freedom of information” – exempt documents – departmental submission and decision to cancel export licence – personal information – disclosure of documents would not involve unreasonable disclosure of personal information – disclosure of documents would not disclose information having a commercial value that could reasonably be expected to be destroyed or diminished if disclosed – disclosure of documents would not disclose information whose disclosure could reasonably be expected to unreasonably affect person or organisation adversely in respect of business, commercial or professional affairs – documents not exempt documents – decisions under review affirmed.
Acts Interpretation Act 1901 (Cth) s 22(1)
Freedom of Information Act 1982 (Cth) s 3, s 4(1), s 11, s 41(1), s 43(1), s 59(1), s 59A(1) and s 61
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Re Forrest and Department of Social Security and Wilks (1991) 23 ALD 131
Mitsubishi Motors Australia Ltd v Department of Transport (1986) 12 FCR 156
Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111
REASONS FOR DECISION
1 December 2004 Associate Professor S D Hotop, Deputy President
Introduction
1. The applicants, Sampak Export Pty Ltd (“Sampak”) and Paul Leslie Miller (“Dr Miller”), have applied to the Tribunal, pursuant to ss 59(1) and 59A(1) of the Freedom of Information Act 1982 (Cth) (“FOI Act”), for review of a decision of a delegate of the Secretary to the Department of Agriculture, Fisheries and Forestry (“the respondent”) dated 5 May 2003, that certain documents, access to which had been requested under the FOI Act by the Veterinary Practitioners Registration Board of Victoria (“the party joined”), are not exempt documents under s 36, s 37, s 41 or s 43 of the FOI Act.
2. At the hearing the applicants were represented by Dr Miller, the respondent was represented by Mr A Bradbury, solicitor, and the party joined was represented by Mr A Power of counsel. The Tribunal had before it the documents (“T documents”) lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and the following exhibits tendered in evidence by the respondent, namely:
·Media Release of the Hon Warren Truss MP, Minister for Agriculture, Fisheries and Forestry, dated 13 November 2002 (R1); and
·Australian Securities and Investments Commission historical company extract relating to Sampak Export Pty Ltd, dated 29 June 2004 (R2);
and by the party joined, namely:
·Australian Securities and Investments Commission historical personal extract relating to Paul Leslie Miller, dated 22 August 2003 (PJ1); and
·Certificate of Leigh Ross Coghlan, President, Veterinary Practitioners Registration Board of Victoria, under s 18 of the Veterinary Practice Act 1977 (Vic) relating to Paul Leslie Miller, dated 3 August 2004 (PJ2).
There was no oral evidence.
Background
3. The following background to the present applications for review appears from the T documents and Exhibit R1.
4. Following an incident on 26 and 27 September 2002 at Portland, Victoria, the Australian Quarantine and Inspection Service (“AQIS”) within the Department of Agriculture, Fisheries and Forestry (“the Department”) refused to grant a permit for the export by Sampak of a consignment of live cattle to China.
5. Sampak was subsequently required, by a delegate of the respondent, to show cause why its livestock export licence should not be dealt with under s 24(1) of the Australian Meat and Live-stock Industry Act 1997 (Cth).
6. Sampak provided a written response to the abovementioned show cause notice and a decision was subsequently made by an officer of AQIS, being a delegate of the respondent, to cancel Sampak’s livestock export licence.
7. By letter dated 16 January 2003 the party joined made a request to AQIS under the FOI Act for the following information:
“1.Details of the incident at Portland on 26 and 27 September 2002, which led to the cancellation of the Export Licence of SAMPAK P/L by the Australian Quarantine Inspection Service; and
2.Confirmation the (sic) Dr Paul Leslie Miller was the veterinarian involved in the incident.”
By letters dated 13 February 2003 the party joined “clarified” the abovementioned request to AQIS as follows:
“The Board is seeking a copy of the submission that was prepared for the decision maker, together with a copy of the letter to Sampak Pty Ltd informing them of the decision.
The Board also wishes to confirm that Dr Paul Leslie Miller was the veterinary practitioner associated with Sampack (sic) Pty Ltd.”
8. By letters dated 18 March 2003 an officer of the Department, pursuant to ss 27 and 27A of the FOI Act, invited Sampak and Dr Miller to make submissions in support of the contention that the documents, access to which had been requested by the party joined, are exempt documents under s 41 or s 43 of the FOI Act.
9. By letter dated 24 April 2003 to the Department, the applicants’ solicitors made submissions objecting to the disclosure of the abovementioned documents on the grounds that they are exempt documents under s 36, s 37, s 41 and/or s 43 of the FOI Act.
10. By letter dated 5 May 2003 a delegate of the respondent informed the applicants’ solicitors that she had decided that the abovementioned documents are not exempt documents under s 36, s 37, s 41 or s 43 of the FOI Act, but that she proposed to make deletions from one of those documents pursuant to s 22 of the FOI Act.
11. An application for review of the delegate’s decision of 5 May 2003 was subsequently lodged with the Tribunal by each of Sampak and Dr Miller.
The Scope of the Tribunal’s Review
“Reverse Freedom of Information” – ss 59 and 59A of the FOI Act
12. Sections 59 and 59A of the FOI Act, which confer a so-called “reverse freedom of information” jurisdiction on the Tribunal, relevantly provide:
“59 Review of certain decisions in respect of documents relating to business affairs etc.
(1)Where, on a request having been made for access to a document containing information concerning:
(a)a person’s business or professional affairs; or
(b)the business, commercial or financial affairs of an organisation or undertaking;
an agency or Minister decides that the document to which the request relates, or an edited copy of the document, is not an exempt document under section 43, the person or organisation, or the proprietor of the undertaking, may apply to the Tribunal for a review of the decision.
…
59AReview of certain decisions in respect of documents containing personal information
(1)Where, 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 that the document to which the request relates, or an edited copy of the document, is not an exempt document under section 41, the person, or, if the person is deceased, the legal personal representative of the person, may apply to the Tribunal for a review of the decision.
…”
13. The scope of the Tribunal’s review pursuant to an application made to it under s 59(1) of the FOI Act is limited to a review of a decision that a document is not an exempt document under s 43 of the FOI Act: Mitsubishi Motors Australia Ltd v Department of Transport (1986) 12 FCR 156. Likewise, the scope of the Tribunal’s review pursuant to an application made to it under s 59A(1) of the FOI Act is limited to a review of a decision that a document is not an exempt document under s 41 of the FOI Act: Re Forrest and Department of Social Security and Wilks (1991) 23 ALD 131.
14. Accordingly, the scope of the Tribunal’s review pursuant to the present applications is confined to the question whether the relevant documents (described in paragraph 16 below) are exempt documents under s 41 or s 43 of the FOI Act, and does not extend to the question whether those documents are exempt documents under (relevantly) s 36 or s 37 of the FOI Act.
The Relevant Legislation
15. The FOI Act relevantly provides:
“3 Object
(1)The object of this 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) … ;
(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)… .
(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.
…
11 Right of access
(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.
…
41 Documents affecting personal privacy
(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).
…
43 Documents relating to business affairs etc.
(1) A document is an exempt document if its disclosure under this Act would disclose:
(a) trade secrets;
(b)any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or
(c)information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:
(i)the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or
…
61 Onus
(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.
(2)In proceedings under section 58F, 59 or 59A, the party to the proceedings that opposes access being given to a document in accordance with a request has the onus of establishing that a decision refusing the request is justified or that the Tribunal should give a decision adverse to the applicant.”
Section 4(1) of the FOI Act contains the following relevant definition:
“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.”
Section 22 of the Acts Interpretation Act 1901 (Cth) relevantly provides:
“(1) In any Act, unless the contrary intention appears:
(a)expressions used to denote persons generally (such as ‘person’, ‘party’, ‘someone’, ‘anyone’, ‘no-one’, ‘one’, ‘another’, and ‘whoever’), include a body politic or corporate as well as an individual;
(aa) individual means a natural person;
…”
The Relevant Documents
16. The documents, which are the subject of the present applications for review, are as follows:
·copy of a document headed “Consideration of Show Cause Response from Sampak Export Pty Limited” comprising a submission to Dr A McDonald, Delegate of the Secretary to the Department of Agriculture, Fisheries and Forestry, from an officer of the Department, dated 12 November 2002 (with certain deletions) (“Document 1”);
·copy of a letter from Dr A McDonald to the Managing Director, Sampak Export Pty Ltd, dated 12 November 2002, giving notice of cancellation of Sampak’s export licence under s 24 of the Australian Meat and Live-stock Industry Act 1997 (“Document 2”).
Consideration and Findings
Is either Document 1 or Document 2 an exempt document under s 41(1) of the FOI Act?
17. The phrase “personal information” (as defined in s 4(1) of the FOI Act), which appears in s 41(1) of the FOI Act, refers only to information about an “individual” – that is, a natural person (see s 22(1)(aa) of the Acts Interpretation Act 1901 (Cth) – and does not include information about a corporation or any entity other than a natural person. Accordingly, any information about Sampak alone, either in Document 1 or Document 2, does not constitute “personal information” for the purposes of s 41(1) of the FOI Act, and the ground of exemption contained in s 41(1) of the FOI Act is, to that extent, inapplicable.
18. As regards Dr Miller, the Tribunal, having perused the relevant documents, notes that Document 1 refers to Dr Miller by name on several occasions and contains some information about him which constitutes “personal information” for the purposes of s 41(1) of the FOI Act. Document 2 refers to Dr Miller by name on only one occasion and contains no personal information about him.
19. The question then arises whether disclosure of Document 1 under the FOI Act would involve the “unreasonable” disclosure of the personal information about Dr Miller contained therein, for the purposes of s 41(1) of the FOI Act.
20. The proper approach to the issue of the reasonableness or unreasonableness of the disclosure of personal information, for the purposes of s 41(1) of the FOI Act, has been explained in some well known dicta of the Tribunal and the Federal Court. In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 the Tribunal (Deputy President Hall) said (at p N259):
“…[I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. Whether a disclosure is ‘unreasonable’ requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.
However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognised by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document”. (original emphasis)
In Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 Lockhart J said (at p 438):
“What is ‘unreasonable’ disclosure of information for purposes of s 41(1) must have, as its core, public interest considerations. The exemptions necessary for the protection of ‘personal affairs’ (s 41) and ‘business or professional affairs’ (s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights; rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access, provided the other conditions mentioned in ss 41 and 43 are satisfied. An examination of the other provisions of Pt IV of the Act concerning exempt documents confirms this approach.”
Heerey J said (at p 441):
“Turning to the criterion of unreasonableness prescribed by the s 41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would inure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.”
21. The personal information about Dr Miller which is contained in Document 1 comprises merely statements that he is the “Managing Director” of Sampak, and the “principal of the exporter” (namely, Sampak), and a statement that he “has substantial experience in the livestock export industry”. Having regard to the considerations referred to in the authorities specified in paragraph 20 above – and, in particular, to the fact that it is a matter of public record that Dr Miller has been, since 20 June 2001, the sole Director, and the Secretary, of Sampak (see Exhibit R2), and that Sampak’s livestock export licence was cancelled in November 2002 (see Exhibit R1) – the Tribunal finds that the disclosure of Document 1 under the FOI Act would not involve the “unreasonable disclosure of personal information” about Dr Miller, within the meaning, and for the purposes, of s 41(1) of the FOI Act. The Tribunal finds, therefore, that Document 1 is not an exempt document under s 41(1) of the FOI Act.
22. The Tribunal likewise finds that the disclosure of Document 2 under the FOI Act would not involve the “unreasonable disclosure of personal information” about Dr Miller, within the meaning, and for the purposes, of s 41(1) of the FOI Act. Accordingly, the Tribunal also finds that Document 2 is not an exempt document under s 41(1) of the FOI Act.
Is either Document 1 or Document 2 an exempt document under s 43(1) of the FOI Act?
23. The question for determination in relation to s 43(1)(b) of the FOI Act is whether disclosure of either of the relevant documents would disclose information (other than trade secrets, which are the subject of para (a)) having “a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed”.
24. In Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 the Federal Court of Australia (Full Court) said (at p 123):
“In the application of s 43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed or diminished if the information were disclosed. It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable.
… the question under s 43(1)(b) is not whether there is a reasonable basis for a claim for exemption but whether the commercial value of the information could reasonably be expected to be destroyed or diminished if it were disclosed. These two questions are different. The decision-maker is concerned, not with the reasonableness of the claimant’s behaviour, but with the effect of disclosure …”
25. Dr Miller, on behalf of Sampak, submitted that information contained in the relevant documents regarding:
·the medical condition of the cattle
·the number of affected cattle
·the estimated financial loss due to the rejected cattle, and
·the recommendation to cancel the export licence of Sampak
comprises “information which, in the marketplace, has a commercial value” to Sampak that “would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed”, within the meaning of s 43(1)(b) of the FOI Act.
26. The respondent has conceded that the information contained in Document 1 in relation to the estimated financial loss to Sampak by reason of the rejection of a quantity of cattle for export is exempt under s 43(1)(b) and has accordingly deleted that information from Document 1. Mr Bradbury (for the respondent) submitted, however, that none of the other abovementioned categories of information referred to by Dr Miller has any “commercial value”, within the meaning, and for the purposes, of s 43(1)(b) of the FOI Act.
27. There is no material before the Tribunal which indicates that the information regarding the medical condition of the cattle, and the number of affected cattle, that were included in Sampak’s proposed shipment to China in September 2002 has any commercial value. Dr Miller, in his submissions, merely asserted that that information has a commercial value to Sampak in the marketplace. It is not apparent to the Tribunal, however, that that information itself has any commercial value, and, in the absence of material indicating the contrary, the Tribunal is not satisfied that that information has any “commercial value” within the meaning, and for the purposes, of s 43(1)(b) of the FOI Act. Likewise, the Tribunal is unable to see how an official recommendation by an officer of the Department, dated 12 November 2002, that Sampak’s export licence be cancelled constitutes “information having a commercial value”, within the meaning of s 43(1)(b) of the FOI Act, especially having regard to the fact that it became a matter of public record, by reason of the Minister’s Media Release (Exhibit R1) on 13 November 2002, that Sampak’s export licence had been cancelled.
28. In short, the Tribunal, on the material before it, is not satisfied that either Document 1 or Document 2 is an exempt document under s 43(1)(b) of the FOI Act.
29. As regards s 43(1)(c)(i) of the FOI Act, Dr Miller submitted that the adverse findings regarding Sampak set out in Document 1 “reflect poorly” on himself as Sampak’s Managing Director and that disclosure for that document has “the real potential to unreasonably (and unfairly) impact upon his carrying out his profession as a veterinarian and thereby potentially remove (or at least reduce) his ability to earn an income from the exercise of that profession”. He further submitted that disclosure of that document would “severely limit” Sampak and himself in trading stock and would result in the loss of contracts and a loss of his “standing in the industry”. He added that it would also lead to “very significant damage” to himself by reason of cancellation or suspension of his registration to practise as a veterinarian by a relevant registration body such as the party joined.
30. In Searle (above) the Full Federal Court, referring to s 43(1)(c)(i) of the FOI Act, said (36 FCR at p 125):
”… the test is not whether it is reasonable for a person to claim exemption but whether, in the opinion of the decision-maker, having regard to the information before the decision-maker: ‘… the disclosure … would, or could reasonably be expected to, unreasonably affect that person adversely’.
…
… the word ‘unreasonably’ should be given its ordinary meaning. Section 43(1)(c)(i) poses the issue whether disclosure of the information would unreasonably affect a person adversely. The issue is not whether ‘the effect is of substance rather than incidental or trivial’ …
If it be in the public interest that certain information be disclosed, that would be a factor to be taken into account in deciding whether a person would be unreasonably affected by the disclosure; the effect, though great, may be reasonable under the circumstances. To give two examples: if the relevant information showed that a business practice or product posed a threat to public safety or involved serious criminality, a judgment might be made that it was not unreasonable to inflict that result though the effect on the person concerned would be serious. Of course, the extent and nature of the effect will always be relevant, often decisive. Whether the effect of the disclosure is unreasonable cannot be assessed without taking into account all relevant factors: see Colakovski v Australian Telecommunications Corp (1991) 29 FCR 429 at 438, 441.” (original emphasis)
31. Again, there is no material before the Tribunal which indicates that the disclosure of Document 1 would disclose information concerning Sampak’s business, commercial or financial affairs, the disclosure of which information could reasonably be expected to unreasonably affect Sampak in respect of its business, commercial or financial affairs. As has already been mentioned, the fact that Sampak’s export licence was cancelled in November 2002 following the incident described in Document 1 has been in the public domain since the Minister’s Media Release of 13 November 2002 (Exhibit R1). In these circumstances, even if the disclosure of Document 1 could reasonably be expected to adversely affect Sampak’s business, commercial or financial affairs, any such adverse effect would not, in the Tribunal’s opinion, be unreasonable. Likewise, there is no material before the Tribunal which indicates that the disclosure of Document 1 would disclose information concerning Dr Miller’s business or professional affairs, the disclosure of which information could reasonably be expected to unreasonably affect Dr Miller in respect of his business or professional affairs.
32. In short, the Tribunal, on the material before it, is not satisfied that either Document 1 or Document 2 is an exempt document under s 43(1)(c)(i) of the FOI Act.
Conclusion
33. The Tribunal’s ultimate findings are as follows:
·Document 1 (as already edited by the deletion of exempt material) is not an exempt document under either s 41(1) or s 43(1) of the FOI Act;
·Document 2 is not an exempt document under either s 41(1) or s 43(1) of the FOI Act.
Decision
34. For the above reasons the Tribunal decides as follows:
·Application No W2003/221
The decision under review is affirmed;
·Application No W2003/282
The decision under review is affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Signed: .......(sgd V Wong)........................................
AssociateDate of Hearing 4 August 2004
Date of Decision 1 December 2004
Counsel for the Applicants Dr P Miller
Counsel for the Respondent Mr A Bradbury
Solicitor for the Respondent Minter Ellison
Counsel for the Party Joined Mr A Power
Solicitor for the Party Joined Aitken Walker & Strachan
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