SCATTERGOOD & TERRITORY AND MUNICIPAL SERVICES & COMMISSIONER FOR PUBLIC ADMINISTRATION (Administrative Review)
[2011] ACAT 44
•11 July 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SCATTERGOOD & TERRITORY AND MUNICIPAL SERVICES & COMMISSIONER FOR PUBLIC ADMINISTRATION (Administrative Review) [2011] ACAT 44
AT 107 of 2010
Catchwords: ADMINISTRATIVE REVIEW - Freedom of Information Act 1989, sections 36 and 38 – are reports the disclosure of which is sought exempt documents? – public interest disclosure – treatment of reference to documents as “draft” or “interim” - confidentiality pursuant to the Public Interest Disclosure Act 1994 – are the Price Reports the product of applied science? –issue of costs
List of legislation: ACT Civil and Administrative Tribunal Act 2008, s 26.
Freedom of Information Act 1989,ss 36, 38 and 76.
Public Interest Disclosure Act 1994, ss 23 and 33.
List of cases: Harris v Australian Broadcasting Corporation and Others (1983) 50 ALR 567
Harinder Kharbanda v Federal Police [2009] AATA 514
Tribunal: Ms L. Donohoe SC, Member
Date of Orders: 11 July 2011
Date of Reasons for Decision: 11 July 2011
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 107 of 2010
RE:DEBBIE SCATTERGOOD
Applicant
AND:TERRITORY & MUNICIPAL SERVICES
1st Respondent
AND: COMMISSIONER FOR PUBLIC ADMINISTRATION
2nd Respondent
TRIBUNAL: Ms L. Donohoe SC, Member
DATE: 11 July 2011
ORDER
The Tribunal Notes that:
The material redacted from the Price Reports dated 20 April 2011 and
23 June 2011 (the “Price Reports”), as produced to the applicant on
2 May 2011, is not, subject to Order 2 below, exempt from disclosure, by virtue of the following provisions of the Freedom of Information Act 1989:
(a) section 36, and/or;
(b) section 38.
For the purposes of these Orders, a reference to material disclosed in the internal and external reports relating to the administration of the contract, the subject of the public interest disclosures and this application, and the internal grievance report, the subject of the public interest disclosures and this application, are references to those reports filed in the Tribunal and referred to in footnote 1 below.
For the purposes of these Orders, a reference to “that individual” or “that person” is a reference to an individual or a person, against whom the public interest disclosure which is the subject of this application has been made.
ORDERS:
Subject to Order 2, the respondents are to provide the applicant within 7 days of the date of this order the Price Reports in unredacted form.
The respondents will redact from the Price Reports only that information relating to the identity, occupation and whereabouts of a person against whom this public interest disclosure has been made and the information contained in this public interest disclosure or concerning that individual’s affairs or that may cause detriment to that person if that information has not previously been disclosed in the internal, external or grievance reports.
………………………………..
Ms L. Donohoe SC
Member
REASONS FOR DECISION
On 8 November 2010, the applicant filed an application for review by the Tribunal of the decisions of the first respondent, Territory and Municipal Services (“TaMS”), and the second respondent, Chief Minister’s Department (“CMD”). The decisions were received by the applicant on 19 August 2010,
14 and 21 October 2010, respectively.
The decisions related to the Freedom of Information Act 1989 (ACT) (“FOI Act”) requests made by the applicant to the respondents on or about
20 August 2010 for the release of copies of documents in relation to an external investigation carried out by Mr Henry Price, a psychologist of Mind Path, Corporate and Personal Psychology. His qualifications will be dealt with in due course. Mr Price, who was retained by the second respondent, did in fact produce two reports (the “Price Reports”). The applicant’s request included other documents.
Mr Luke McAlary, Director, Public Management Group, made the first internal decision on 17 September 2010 regarding the applicant’s request in which he determined that some documents would be released but that, relevantly, the Price Reports were exempt and would not be released. Mr McAlary’s decision was liable to review. It was reviewed. The second decision made on
15 October 2010 was a review of Mr McAlary’s decision. Ms Rowena Barrell, Acting Director, Public Management Group, made the decision affirming the original decision of Mr McAlary, and adding another ground for refusal. The applicant made a second request pursuant to the FOI Act to the Office of the Chief Executive, TaMS, requesting the release of the Price Reports and other material. In respect of that request, the decision maker was Ms Morrell, Deputy Chief Executive, who made her decision on 20 September 2010. Ms Morrell determined that some documents would be released but that, relevantly, the Price Reports were exempt and would not be released. Ms Morrell’s decision was similarly liable to review. It was reviewed on 10 October 2010 by Ms Divorty, who affirmed Ms Morrell’s decision. The Tribunal will return in due course to the reasons given by the decision makers.
Background
At all relevant times, the first respondent employed the applicant. The applicant’s duties involved the management of various assets within the ACT and the drafting of maintenance contracts for work to be carried out within the ACT.
In or about June 2007, the applicant disclosed her views to her supervisor that a particular maintenance contract was being mal-administered by employees of the first respondent.
The applicant’s disclosure led to an internal audit and then an external audit.
Ms Carder, Manager of City Places and Open Space, conducted an internal audit on 5 December 2007. The external review, which was undated, was conducted by Walter Turnbull, Contract Management. Both audits produced reports in which the alleged mal-administration was confirmed. Both the internal audit and the external audit have been disclosed to the Tribunal.
The applicant alleged that, as a consequence of making her disclosure in relation to the alleged mal-administration of the contracts, she suffered harassment and discrimination in the workplace, and thereby suffered psychiatric illness. She lodged a grievance in relation to her alleged treatment, and alleged sequelae in which the applicant claimed that she had been the subject of unlawful reprisals as a consequence of her disclosure. The applicant’s grievances were dealt with by investigation and reporting internally. Mr Brosolo, a Senior Advisor of Shared Services, conducted the investigation and he was the author of the resulting internal grievance report dated 18 September 2008 (the “internal grievance report”).
The internal grievance report has been disclosed to the Tribunal. The internal, external and internal grievance reports are substantial and detailed reports. They not only identify purely factual material, the nature of the public interest disclosures, but also identify a number of persons against whom the public interest disclosures were made.
The applicant was unhappy with the outcome of the internal grievance report and alleged that she had been denied natural justice. The first and second respondents resolved to conduct a joint investigation into the applicant’s allegations pursuant to the Public Interest Disclosure Act 1994 (the “PID Act”) to be undertaken by an external body, Mr Henry Price, of Mind Path, Corporate and Personal Psychology, commencing on 24 November 2009 (the “Price Investigation”). Mr Price produced the reports.
On 19 August 2010, the applicant was provided with a report on, or summary of, the Price Investigation, and an outline of the action proposed to be taken pursuant to the PID Act in the form of two letters, the first dated
16 August 2010 and the second dated 18 August 2010 from the first and second respondents, respectively.
On 28 March 2011, the applicant, through her solicitor, filed her statement of facts and contentions. On 8 April 2011, the respondents, through their solicitor, filed their statement of facts and contentions. At paragraph 12 of the respondents’ document, the respondents offered copies of the Price Reports in redacted form. On 4 may 2011, the Tribunal’s General President made the following orders by consent and noted the following matters:
1.The hearing listed for 5 May 2011 was vacated.
2.The application would be heard on the papers.
3.
The second respondent was to file redacted copies of the reports of
Mr Henry Price dated 20 April 2011 and 23 June 2010 (the Price Reports)
to the Tribunal by 3:00 pm on 5 May 2011.
4.The second respondent was to produce full copies of the Price Reports to the Tribunal by 3:00 pm on 5 May 2011. This order was made under section 74(1) of the Freedom of Information Act 1989.
5.
The respondents were to file written submissions by close of business on
6 May 2011.
6.The applicant was to file any written submission in reply by close of business on 13 May 2011.
The Tribunal noted:
(i)the following documents would be before the Tribunal for the purpose of the hearing on the papers:
a)
Tribunal documents filed by the first respondent on
9 December 2010;
b) Tribunal documents filed by the second respondent on 2 March 2011;
c) additional Tribunal documents filed by the respondents on 27 April
2011;[1]
[1] Included internal review on contract management, external report (Walter Turnbull Investigation Report) and internal grievance report.
d)
amended statement of reasons filed by the first respondent on
17 December 2010;
e)
statement of facts and contentions filed by the applicant on
28 March 2011;
f)
statement of facts and contentions filed by the respondents on
8 April 2011;
g) the applicant’s reply filed on 4 May 2011;
h) redacted copies of the Price Reports;
i) full copies of the Price Reports produced under section 74(1) of the Freedom of Information Act 1989.
j) the respondents’ written submissions;
k) any submission in reply filed by the applicant.
The parties agreed that the question for consideration by the Tribunal should be described as follows:
“Whether the material redacted from the Price reports dated 20 April 2011 and 23 June 2011, (as produced to the applicant on 2 May 2011) is exempt from disclosure under the Freedom of Information Act 1989, by virtue of the following provisions of the Freedom of Information Act 1989:
a)section 36, and/or;
b)section 38.”
.
Sections 36 and 38 of the FOI Act relevantly provide:
Internal working documents – section 36
(1) Subject to this section, a document is an exempt document if its disclosure 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 Territory; and
(b) would be contrary to the public interest.
(2) In the case of a document of the kind referred to in section 8 (1),
the matter referred to in subsection (1) (a) of this section does not include matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8 (1).
(3) This section does not apply to a document only because of
purely factual material contained in the document.
(4) This section does not apply to —
(a) reports (including reports concerning the results of studies,
surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters; or
(b) reports of a prescribed body or organisation established within an
agency; or
(c) the record of, or a formal statement of the reasons for, a finaldecision given in the exercise of a power or of an adjudicative function.
(5) Where a decision is made under part 3 that an applicant is not
entitled to access to a document because of this section, the notice under section 25 shall state the ground of public interest on which the decision is based.
38Documents to which secrecy provisions of enactments apply
A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.
(emphasis added)
Written submissions were filed on behalf of the respondents and the applicant in accordance with the orders. The submissions were comprehensive and of assistance to the Tribunal.
The only questions therefore to be determined by the Tribunal are the questions framed by the parties and set out above. However, before the Tribunal addresses the questions agreed upon by the parties for determination by the tribunal, the Tribunal regards an examination of some ancillary issues, pertaining to the circumstances of this case, is helpful, but not decisive of the questions for review.
A Relevant but not Decisive Issue
The first examination involves the PID Act and the prima facie right of a person who has made a public interest disclosure to be provided with a progress and/or a final report of any investigation. A thorough reading of the unredacted versions of the Price Reports leaves the Tribunal in no doubt that Mr Price undertook an exhaustive investigation and made detailed and substantial findings and recommendations based on those investigations.
Pausing, whether or not the applicant’s views and/or complaints were or were not in fact relate to public interest disclosures pursuant to the Act, is not relevant. It is unclear whether or not the parties regarded them at the time as being such, because subsequently the allegations have been regarded thus. In other words, it appears to be common ground that provisions of the PID Act are applicable. A threshold issue which the Tribunal does not have to decide but will, nonetheless, address in a preliminary, and perhaps tentative, manner is this: was the applicant entitled to the Price Reports pursuant to the progress reports provision of the PID Act?
PUBLIC INTEREST DISCLOSURE ACT 1994 - SECT 23
23Progress report
(1)A person who makes a public interest disclosure, or a proper authority that refers a disclosure to another proper authority, may request the proper authority to which the disclosure was made or referred to provide a progress report.
(2)If a request is made under subsection (1), the proper authority to which it is made shall provide a progress report to the person or authority who requested it—
(a) as soon as practicable after receipt of the request; and
(b) if the proper authority takes further action with respect to the disclosure after providing a progress report under paragraph (a)—
(i)while the authority is taking action—at least once in every 90 day period commencing on the date of provision of the report under paragraph (a); and
(ii)on completion of the action.
(3)A progress report provided under subsection (2) shall contain the following particulars with respect to the proper authority that provides the report:
(a) if the authority has declined to act on the public interest disclosure under section 17—that it has declined to act and the ground on which it so declined;
(b) if the authority has referred the public interest disclosure to another proper authority—that it has referred the disclosure to another authority and the name of the authority to which the disclosure has been referred;
(c) if the authority has accepted the public interest disclosure for investigation—the current status of the investigation;
(d) if the authority has accepted the public interest disclosure for investigation and the investigation is complete—its findings and any action it has taken or proposes to take as a result of its findings.
(4)Nothing in this section prevents the proper authority from providing a progress report in accordance with subsection (3) to a person who may make a request under subsection (1).
(emphasis added)
It is the Tribunal’s view that sub-sections 3 (c) and (d) of section 23 above encompass drafts. However, even if that view be wrong, it is difficult indeed, having read both the Price Reports in unredacted form, the first being some 169 pages long and entitled “Draft Report…”, and the second report entitled “Supplementary Report: Interim Findings and Recommendations…”, being some 25 pages in length, to give any credence to the description of the titles to the Price report, when in fact both are neither draft nor interim in their nature or substance. Whether or not the title or gratuitous references in the body of the document to terms such as “draft” or “interim” and the like truly or accurately reflect the nature and content of the document, is to be determined by the nature and content of the document itself. Merely entitling a report of this nature “draft” or “interim” does not make it so. Although the Tribunal has not been asked to address that question, it is the Tribunal’s preliminary view, subject to the confidentiality provisions of the PID Act, that an argument by the applicant that she was entitled to the Price Reports in unredacted form pursuant to the Progress Report provisions of the PID Act, based upon the above analysis, would have been compelling.
The question of whether or not the redacted material from the Price Reports is exempt from disclosure pursuant to section 38 of the FOI Act, depends upon an application of section 33 of the PID Act to the facts and circumstances of this case. That requires a determination of whether or not the redacted material from the Price Reports was subject to any of the confidential provisions of the PID Act. Section 33 of the PID Act provides:
Confidentiality
(1)A public official shall not, without reasonable excuse, make a
record of, or wilfully disclose to another person, confidential information gained through the public official's involvement in the administration of this Act.
Maximum penalty: 50 penalty units.
(2)Subsection (1) does not apply to a public official who makes a
record of, or discloses, confidential information—
(a) to another person for this Act; or
(b) to another person, if expressly authorised under another
Territory law; or
(c) for the purposes of a proceeding in a court or tribunal.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act 2001 , s 104).
(3) In this section:
"confidential information" means—
(a)information about the identity, occupation or
whereabouts of a person who has made a public interest disclosure or against whom a public interest disclosure has been made; or
(b) information contained in a public interest
disclosure; or
(c) information concerning an individual's personal
affairs; or
(d) information that, if disclosed, may cause detriment to a person.
(emphasis added)
The Tribunal finds that much of what was investigated and reported upon in the Price Reports would have been caught by the confidentiality provisions of the PID Act sub-section 33(3)), had it not been for the considerable disclosures of purely material facts, the identity of persons involved in the public interest disclosures and the information contained in the public interest disclosures disclosed to the Tribunal by the respondents,[2] and presumably, others in the internal, external and grievance reports, all, or a substantial amount of which were duplicated in the unredacted Price Reports.
The Decision Makers’ Reasons
[2] See footnote 1 above
Because the parties have determined that the only questions for determination by the Tribunal are as set out above, it is unnecessary to deal with much of the decision makers’ reasoning.
Before the Tribunal deals with the question of whether the redacted parts of the Price Reports are exempt within the meaning of section 36 (1) (a) and or (b) of the FOI Act, or secondly, whether the redacted parts are not exempt by reason of section 36 (3) and or (4) of the FOI Act, it may be helpful to comment upon the content of the decision makers’ reasons as they relate to the public interest provision of section 36 of the FOI Act.
The first observation that the Tribunal makes is that the reasons are, for the most part, unsatisfactory. The facts, circumstances, and evidence in Harris v Australian Broadcasting Corporation and Others[3] and Harinder Kharbanda v Federal Police,[4] are so distinctly different as to be properly distinguishable from the circumstances of this case.
[3] (1983) 50 ALR 567
[4] [2009] AATA 514
This case stands or falls on its own facts and circumstances. In Harris, considerable evidence was led in relation to explaining that the particular public interest prohibition contained in section 36 was said to be a cogent reason for not releasing the documents sought under the FOI Act. The Court accepted that evidence. In Kharbanda, the report sought for release pursuant to the Act was not only described as being so incomplete in draft form as to be in its infancy, but also being so many years old that it could be quite fairly said to be potentially misleading.
Subject to one comment which the Tribunal will make shortly in relation to confidentiality pursuant to the PID Act, nothing of the sort could fairly be said of the unredacted Price Reports. Rather than focussing on any legitimate public interest ground and evidence of that ground that in fact related to the release of these reports and the circumstances in which they had come into existence, the decision makers resorted to unhelpful formulaic language, the best example of which came from Mr McAlary:
“…I consider that the public interest is not served by the release of tentative and partially considered advice or drafting which may mislead the public and encourage ill-informed speculation…’
This “reasoning” might be compared with the comments of the New South Wales AATA in Kharbanda in which Senior Member Isenberg said:
“…..premature release of preliminary, tentative and partially considered matters may mislead and encourage ill-informed speculation (Harris v Australian Broadcasting [Corporation] (1983) 50 ALR 567).”
This comment was made in relation to a submission based upon evidence which the AAT accepted. The Senior Member’s conclusion, as set out above, was drawn from the evidence in that case.
As the Tribunal has emphasised above, the circumstances of this case are quite different. The unredacted Price Reports upon which Mr McAlary based his decision could, in the Tribunal’s view, in no fairly objective sense, be described as draft, interim, preliminary, tentative or partially considered. If they were not so, as the Tribunal has determined, one asks rhetorically, how they could possibly have been considered and described by Mr McAlary, with whom
Ms Barrell agreed, as potentially misleading to the public or capable of encouraging ill-informed speculation. To dwell further upon this reason to refuse release of the Price Reports would be unhelpful.
Ms Morrell was another decision maker. Her decision focussed upon her assertion that the prohibition contained in section 38 of the FOI Act made the Price Reports exempt because section 33 (1) of the PID Act was a secrecy provision. That assertion may have been correct, had it not been for the significant disclosure to the Tribunal and to other persons of the internal, external and grievance reports,[5] the contents of which were significantly reproduced in the unredacted price Reports. Moreover, it is the view of the Tribunal that the unredacted Price Reports contained a substantial amount of purely factual material[6].
[5] See footnote 1 above and section 33(2) (a) and (c) of the PID Act.
[6] See section 36 (3) of the FOI Act.
Nor does the Tribunal take the view that the Price Reports were in fact created in the course of, or for the purposes of, the deliberative processes of either respondent. Mr Price was asked to investigate and make recommendations. He did so in a comprehensive manner. Section 36 (4) of the FOI Act provides an exception to the exempt document provisions of the FOI Act. It is reproduced above with added emphasis. The exempt provisions do not apply to reports of technical experts including reports expressing the opinions of such experts on scientific or technical matters. In Harris, Beaumont J said of the exception:
Finally, in my view, the reports do not fall within the exception contained in s 36(6)(a), since they cannot properly be treated as reports of a “scientific or technical” expert of the type there described. ……….the reference, in s36(6)(a) to “technical expert” is, I think, intended to describe experts in the mechanical arts and applied sciences generally.
(emphasis added)The Tribunal may inform itself in any way it considers appropriate in the circumstances[7]. Mr Henry Price was the author of the Price Reports. His formal qualifications are listed on Mind Path’s website as being a Consulting Psychologist having the following formal qualifications. He is a Master of Arts, a Bachelor of Science, a holder of a Diploma of Applied Psychology and a Member of the Australian Psychological Society. The discipline of psychology is defined in the Oxford English Dictionary as being:
The scientific study of the nature, functioning, and development of the human mind, including the faculties of reason, emotion, perception, communication, etc.; the branch of science that deals with the (human or animal) mind as an entity and in its relationship to the body and to the environmental or social context, based on observation of the behaviour of individuals or groups of individuals in particular (ordinary or experimentally controlled) circumstances.
[7] Section 26, ACT Civil and Administrative Tribunal Act 2008.
In the Tribunal’s view, an applied science is merely a science put to practical use. This is precisely what the Price Reports did. The application of a science, applied science or art to a set of facts would lead the scientist or expert to one inevitable conclusion. A deliberative process, however, is one in which one or more people will ponder over a range of facts, beliefs, desires, political ideology, interests and possibilities of public perceptions, among other things, so that the ultimate decision is by no means foregone or inevitable. With that distinction in mind, it is easy to see why the legislature granted the possibility of exemption for the latter and not the former.
It is the Tribunal’s view, therefore, that the redacted material from the Price reports are not exempt within the meaning of section 36 (1) (a) of the FOI Act. The Tribunal therefore determines that the applicant is entitled to the unredacted Price Reports save only for the condition that the following information will be redacted from the Price Report so that there be no confusion, namely,
(a) any information relating to the identity, occupation or whereabouts ofan individual or a person against whom this public interest disclosure, was made or
(b) information contained in this public interest disclosures,
(c) information concerning that individual’s affairs, and
(d) information that may cause detriment to that person that has not
previously been disclosed in the internal, external or grievance reports[8].[8] See footnote 1 above.
A reference here to “that person” is a reference to a person against whom a public interest disclosure has been made. A reference to the internal, external or grievance reports is a reference to those documents filed with the Tribunal and referred to in footnote 1 above.
Costs
The applicant has sought payment of her costs by the respondents. Section 76 of the FOI Act deals with this question. The provision is headed, “ACAT may make recommendation that costs be available in certain cases”.
The provision is set out in full below.
(1)Where—
(a)a person makes application to the ACAT under section 60 for review of a decision constituting the action to which the complaint relates; and
(b)the person is successful, or substantially successful, in the
application for review;
the ACAT may, in its discretion, recommend to the Minister that the costs of the applicant in relation to the proceedings be paid by the Territory.
(2)Without limiting the matters to which the ACAT may have regard in deciding whether to make a recommendation under subsection (1), the ACAT shall have regard to—
(a)the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant; and
(b)the question whether the decision of the ACAT on review will
be of benefit to the general public; and
(c)the question whether the decision of the ACAT on review will
be of commercial benefit to the person making the application
to the ACAT; and
(d)the reasonableness of the decision reviewed by the ACAT.
(3)The Minister may, under a recommendation of the ACAT under subsection (1), authorise the payment of costs to an applicant.
The applicant submitted first, that her application had been substantially successful. That is true. Secondly, she submitted that the applicant would suffer financial hardship if her costs were not met. That assertion was made in a submission, not in sworn evidence to the Tribunal. The assertion may or may not be true, but one might expect to have seen sworn evidence from the applicant herself in support of the submission. None was provided.
The Tribunal rejects the applicant’s submission that the Tribunal’s decision on the applicant’s review of the respondents’ decision will be of benefit to the general public. The question of alleged maladministration and other alleged breaches of the Public Sector Management Act 1994 (PSMA) were not disclosed or established as submitted and, in any event, any such question of alleged mal-administration or alleged breaches of the PSMA did not form part of the questions agreed by the parties to be dealt with by the Tribunal.
The Tribunal therefore declines to exercise its discretion in relation recommending that the applicant’s costs or any part of them be met by the Minister.
………………………………..
Ms .L Donohoe SC
Member
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