SRGGG and Department of Defence
[2001] AATA 1029
•18 December 2001
DECISION AND REASONS FOR DECISION [2001] AATA 1029
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/121
GENERAL ADMINISTRATIVE DIVISION )
Re SRGGG
Applicant
And DEPARTMENT OF DEFENCE
Respondent
DECISION
Tribunal MS N BELL
Date 18 December 2001
PlaceSydney
Decision The decision under review is affirmed.
[sgd] Ms N Bell
Member
CATCHWORDS
Freedom of Information - request for disclosure of parts of document relating to Applicant –whether document exempt – public interest – internal working documents - deliberative processes - confidentiality – alternative dispute resolution – material obtained in confidence
Freedom of Information Act 1982 sections 6, 36, 40, 45, 61, 63
Re Chapman and Anor and Minister for Aboriginal and Torres Strait Islander Affairs (1995) 43 ALD 139
Subramanian v Refugee Review Tribunal (1994) 44 ALD 435
Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588
Harris v Australian Broadcasting Corporation (1983) 5 ALD 545
Kamminga and Australian National University (1992) 15 AAR 297
Re Fewster and Department of Prime Minister and Cabinet (No 1) (1986) 11 ALN N266
Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] 1 QAR 60
Re Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659
Re Huttner and Department of Immigration and Ethnic Affairs (1995) 38 ALD 781
Re VXF and HREOC (1989) 17 ALD 491
Re Corr and Department of Prime Minister and Cabinet (1994) 35 ALD 141
Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626
Re Swiss Aluminium and Department of Trade (1985) 9 ALD 243
Re Peters and Department of the Prime Minister and Cabinet (1983) 5 ALD 187
Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N 257
Re Burns and Australian National University (1985) 7 ALD 425
Re Lianos and Secretary to Department of Social Security (AAT N83/893, 19 February 1985)
REASONS FOR DECISION
MS N BELL
This is an application by SRGGG ("the Applicant") for review of the decision of 23 November 2000 by the Department of Defence ("the Respondent") to refuse access to parts, relating to herself, of a document authored by Lieutenant Commander Michael Slattery QC, (Royal Australian Naval Reserve). The document was described by the Respondent as forming part of a "Naval Training Command management initiative" that concerned two other officers and the Applicant. In the Schedule of Exempt Documents provided to the Tribunal by the Respondent, the document is described as follows:
"Confidential report prepared by the LCDR MJ Slattery, dated 15 December 1998, as part of a Naval Training Command management initiative, setting out in general terms a history of issues relating to the applicant and two other parties, information received from those parties and suggested proposals for action."
The document numbers 18 pages and has three attachments, including a letter from the Applicant dated 2 December 1998.
A copy of the document was produced to the Tribunal, subject to a confidentiality order pursuant to subsection 35 (2) of the Administrative Appeals Tribunal Act 1975 and subsection 63 (1) of the Freedom of Information Act 1982 ("the Act")
The Applicant was represented by her husband and the Respondent was represented by Ms Nansen of the Australian Government Solicitor's Office. Oral evidence was given to the Tribunal by the Applicant and by Mr Slattery. The following documents were in evidence:
Exhibit No Description Date
T1-T11 pp 1-36 Documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act1975
A1 Letter from Commander KJ Scarce to Applicant 16/06/98
A2 Letter from Naval Training Commander to Applicant 2/9/98
A3 Letter from Naval Training Commander to Applicant 21/9/98
A4 Letter from Applicant to M Slattery QC 2/12/98
A5 Admiral's Commendation 19/9/94
A6 Board of Inquiry Instrument 23/4/97
A7 Submission to Military Justice Inquiry 18/2/98
A8 Submission to Military Justice Inquiry 23/7/98
A9 Letter from Commander Helyer to Applicant 26/8/99
A10 Defence Legal Officer's Letter to Applicant 29/9/99
A11 The National Alternative Dispute Resolution Advisory Council definition of Alternative Dispute Resolution March 1997
A12 Statement of Applicant 7/9/01
A13 Applicant's Written Outline of Submissions 9/9/01
R1 Affidavit of Respondent- Angela Nanson 30/8/01
R2 Statement of MJ Slattery 3/9/01
R3 Statement of RG Coldrey 7/9/01
R4 Affidavit of Respondent –Angela Nanson 31/8/01
R5 Respondent's written outline of submissions 6/9/01
R6 Letter from Col JA Harvey to Applicant 21/10/98
background
It is common ground that in September 1998 LCDR MJ Slattery QC (RANR) was appointed to assist in the resolution of a protracted dispute between the Applicant, two other parties and the Royal Australian Navy ("RAN"). In December 1998 a conference was held between the Applicant and LCDR Slattery, in preparation for which the Applicant prepared a statement of her specific grievances (Exhibit A4). Following those discussions with the Applicant, some issues were identified and conveyed to the RAN in the form of a report dated 15 December 1998 ("the Slattery Report"). Subsequently the RAN wrote to the Applicant on 10 February 1999 (Exhibit R1, annexure A), identifying issues raised by the Applicant with LCDR Slattery and outlining its response.
On 12 June 2000, the Applicant requested access under the Act to those parts of the Slattery report which related only to her (T3). On 10 October 2000 the Director General of Navy Training and Personnel considered that request and recommended that access not be granted either to the document in its entirety or with certain parts deleted (T5). On 18 October 2000, the Applicant was notified of that decision (T6) and on 24 October 2000, the Applicant sought internal review of that decision (T7). On 23 November 2000, the Deputy Chief of Navy affirmed the decision (T8).
exemptions claimed by the respondent
The Respondent's claim for exemption of the Slattery Report is based on the following provisions of the Act:
section 36 -- Internal working documents;
section 40 -- Documents concerning certain operations of agencies; and
section 45 -- Documents containing material obtained in confidence.Consideration of the abovementioned provisions of the Act cannot be undertaken without regard to section 3 and subsection 61(1) of the Act. Section 3 provides in part:
"3. (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) 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."
Subsection 61(1) 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."
Section 22 of the Act permits a document to be released with deletions. The Tribunal has studied the document the subject of this application and, for reasons outlined below, does not consider that section 22 is generally applicable in this matter.
Section 36
Section 36 of the Act provides relevantly:
"36 Internal working documents
(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.
(6) 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;
(b) reports of a prescribed body or organization established within an agency; or
(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function."
deliberative processes - s 36(1)(a)
It was submitted by the Respondent, in relation to subsection 36(1)(a) of the Act, that the Slattery Report comprises an advice and a number of recommendations prepared for the Respondent in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency. The Respondent referred to the evidence in Mr Slattery's statement that he was commissioned to provide the Respondent with an independent source of advice and recommendations for its consideration.
The Respondent referred the Tribunal to its decisions in Re Chapman and Anor and Minister for Aboriginal and Torres Strait Islander Affairs (1995) 43 ALD 139 at 148, Subramanian and Refugee Review Tribunal (1997) 44 ALD 435 at 440, and Waterford and Department of Treasury (No. 2) (1984) 5 ALD 588 at 606 and the Federal Court's decision in Harris v Australian Broadcasting Corporation (1983) 5 ALD 545 at 554.
In Re Chapman and Anor and Minister for Aboriginal and Torres Strait Islander Affairs (supra) the meaning of the words "deliberative processes" was considered at p 148:
"In reaching a decision to characterise a document as being part of a deliberative process the tribunal may seek guidance, but not be bound, by the wording used in the document itself. The determination should be based on a fair reading of the whole of the document and not a disjunctive reading of selected passages. Additionally, the characterisation should be determined not only by having regard to the wording used in the document, but also by reference to the surrounding circumstances and the matters deposed to in any evidence supporting the maintenance of the exemption."
In Re Waterford and Department of the Treasury (supra) pp 606-607 the Tribunal considered the meaning of the term "deliberative processes" and the way in which subsection 36(1)(a) may be applied to particular documents:
"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… 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)."
The Applicant referred the Tribunal to its decision in VXF and HREOC (1989) 17 ALD 491. In that case the Tribunal held that a file note containing an opinion concerning the state of a complainant's mental health was not an opinion that was prepared for the purpose of the deliberative processes of the Human Rights and Equal Opportunity Commission in inquiring into and deliberating on her complaint to the Commission. It was, instead, regarded by the Tribunal as part of an administrative function of the Commission that was incidental to, but not part of, the deliberative process involved in the functions of the Commission.
The Applicant also referred the Tribunal to the decisions in Harris and Chapman (supra).
Turning to the document the subject of this application, the report begins with an outline of action taken to the date of writing by Mr Slattery and then outlines the objective of the report. That objective is stated to be an explanation of the reasons in favour of a particular proposed course of action, an explanation of what may be achieved by that course of action, and the steps necessary to reach that outcome. The document then provides an analysis or interpretation of the range of interests and concerns involved in the dispute, and makes a number of recommendations for future action in accordance with that analysis. The report is discursive, with recommendations for steps to be taken interspersed with interpretation of concerns in a way that relates the concerns of each individual to those of the others. The report, in terms of the concerns of the parties, is interpretive rather than descriptive, and recounts not only what was conveyed to Mr Slattery but also inferences drawn by him and impressions he gained. The style in which the report is written is one of interconnectedness with each part making reference to material contained in another.
It is this interconnectedness or intertwindedness that renders the document unamenable to the application of section 22 of the Act.
The document appears in the nature of an advice or an opinion, making recommendations for future action based on a particular interpretation of information obtained from various sources including the Applicant.
Adopting the approach suggested in Waterford (supra) of endeavouring 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", it appears that the process in question is the process of deliberation over what steps should be taken by the RAN management to resolve a dispute that had arisen between a number of officers with each other and with the RAN. The Tribunal does not consider this to be merely incidental to the functions of the RAN which has the task, among others, of ensuring its efficient administration and the management of its workforce. The opinions, advice and recommendations in the Slattery Report go directly to that process of deliberation.
The Tribunal is satisfied that the document is of a kind contemplated by the provisions of subsection 36(1)(a) of the Act.
factual material- s 36(5)
Before moving to the issue of the public interest (subsection 36(1)(b)), it is necessary to consider whether the document contains wholly or in part purely factual material (subsection 36(5) of the Act). In Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626 the then President of the Tribunal referred to the definition of the word "factual" in the Shorter Oxford Dictionary and to the Federal Court's consideration of the provision in Harris v Australian Broadcasting Corporation:
"The Shorter Oxford English Dictionary defines "factual" as "concerned with facts; of the nature of fact, actual, real". The dictionary defines "fact" as, inter alia "3. Something that has really occurred or is the case; hence, a datum of experience, as dist. from conclusions 1632". In my opinion, the subject documents do not contain purely factual material. Estimates as to what will happen if certain changes are made to the taxation laws and rates involve elements of judgment or assumption. They are concerned with the future, not with facts…
Moreover, as Beaumont J said in Harris v Australian Broadcasting Corp (No 2) (1983) 50 ALR 567 at 569: "… a distinction is to be drawn for present purposes between purely factual material, which is of an investigative character, on the one hand and opinion, advice or recommendation, which is part of the policy-forming or deliberative processes on the other hand …" This approach was affirmed on appeal at (1984) 51 ALR 581."In relation to the question whether there is purely factual material in the document, the Respondent submitted that the report is entirely devoted to the presentation of issues and opinions regarding a dispute, from the perspective of the parties involved, in addition to the recommendations then proposed.
The only part of the report that could be argued to be purely factual is part of a short introductory section that outlines action taken by Mr Slattery and others to the date of the report. This part also pertains to other individuals besides the Applicant and describes submissions made by legal representatives, and requests made by parties to the dispute. It is essentially a short historical account. While it appears to be severable from the remainder of the document, which is interpretive and incorporates recommendations and opinion, it reflects the course of negotiations and could serve to disclose aspects of the deliberative process. In Re Swiss Aluminium and Department of Trade (1985) 9 ALD 243, the Tribunal said at pp 248-249:
"We have considered the desirability that Austraswiss should be aware of all the factual matters that the Minister has taken into account so that if there be any error therein, Austraswiss may correct it. However, we are satisfied that there is not in the unreleased material any "purely factual material", within the meaning of s 36 (5), other than confidential information relating to other companies. During the hearing of the proceedings before the Tribunal, additional extracts from the relevant documents were released to Austraswiss. The material released was material of a factual nature of the type which s 36 does not seek to exempt. We have examined the remainder of the subject documents with care. Some of the information contained is of a purely factual nature but, in each case, it seems to us that such information is information relating to the activities of competitors of Austraswiss and is information which has been conveyed in confidence to the respondent by the companies to which the information relates. The documents contain other information of a factual nature, but it is not information of a "purely factual" nature. That material would reveal deliberation that has taken place in the course of the deliberative processes involved in the functions of the respondent. As was said in Re MacDonald Pty Ltd and Department of Territories and Local Government (1985) 9 ALD 236:
"The material omitted from this document is of a factual nature but s 36 (5), which restricts the ambit of the exemption, uses the expression 'by reason only'. The sub-section does not require factual material to be disclosed if that material has a quality relevant to the FOI Act, such as confidentiality, which would make its disclosure contrary to the public interest."
We are satisfied that there is no further part of the documents in dispute which ought to be separated out and released to Austraswiss as being purely factual material. Moreover, the remaining matters of a factual nature in the documents, other than confidential material, are so intertwined with matters of opinion and advice that we think that any benefit to be gained by the release of this material is outweighed by the other public interest factors we have mentioned above."
It appears to the Tribunal that similar considerations apply in this case to the particular material mentioned above and to items of fact or factual reporting that appear elsewhere in the document but are "intertwined with matters of opinion and advice". For these reasons, the Tribunal concludes that these parts of the report do not constitute purely factual material within the meaning of subsection 36(5).
scientific or technical reports – s 36(6)(a)
Nor does the Tribunal consider that the report amounts to a scientific or technical report within the meaning of subsection 36(6)(a) of the Act. This question was considered by Beaumont J in Harris (supra):
"…the reference, in s.36(6)(a) to 'technical experts' is, I think, intended to describe experts in the mechanical arts and applied sciences generally."
It could not be said that Mr Slattery's report was of a technical or scientific nature. It follows that subsection 36(6)(a) does not apply.
nature of the deliberations – alternative dispute resolution
The Respondent submitted that the document was prepared at its request as part of a "management initiative" intended to resolve a dispute between the Applicant and other parties, and as such presented a summary of the concerns of the parties to the dispute and a number of recommendations. It was also submitted that the document deals with the expediency of certain proposals and is not simply a recitation of complaints.
Mr Slattery's oral evidence was:
"To the best of my recollection the request of me was to see what I could do to either assist the parties in resolving the issues that existed between them or if that was not possible to do whatever I could to accommodate the interests of each of the parties…I was engaged and paid by the Navy but I did not regard myself as acting in the Navy's interests and I said so to every party who was involved in the discussions with me including this applicant."
The issues in question were described neatly by Mr Slattery as follows:
"It was a history of problems which had emerged from the administration of the Balmoral Naval Hospital at HMAS Penguin, particularly in its nursing service and the way that the command had handled the interaction of the Applicant and the other nursing staff who were part of – certainly a failure to agree among themselves about how the hospital should be managed and which had in turn led to a degree of bitterness between them and some attempts to resolve that through a mediation which in turn had created its own problems which then led to a Board of Inquiry from recollection which had not satisfied anyone which in turn had led to at least one party … going public with a submission to a Parliamentary Inquiry into the military justice system and a series of other allegations and counter allegations in correspondence which was about where it had got to, I think, when I became involved."
Mr Slattery described his role in the process he engaged in as follows:
"I didn't describe it as that alone but the concepts that are commonly understood as the roles of a mediator was probably the way I presented myself. In fact, it was the way I presented myself, not probably. I clearly made it known that I wasn't acting for any party or indeed, the Navy. I said and I used the words something like "go between" or something like that."
The final paragraph of Mr Slattery's statement is as follows:
"In the course of a fairly detailed introduction of the applicant to the nature of the exercise I was undertaking I recall saying to the Applicant early in that conference words to the following effect:
I said: 'I am here appointed by Navy to try and reach a management resolution to the current dispute and to achieve for you as much of what you want as is possible at this stage.
'I am appointed by Navy to talk to all parties but I am not acting for Navy in the sense that I am engaged to look after its interests. Nor am I acting for any particular party to this dispute. You are free to rely on your own legal advice about this dispute and about this management resolution. Whilst I would prefer to speak to you directly, as I believe that will aid the process, I am also happy to speak with any lawyer you engage.
'Because of my appointment I believe I am in a special position to assist in conveying your concerns and your suggestions about resolving this dispute to senior personnel in the Navy. Everything you say will be treated in confidence. I will also be talking to Leut Monmouth and Leut Lord. Nothing you tell me will be disclosed to them without your consent. I will say this to all the parties to the dispute. What they say will also be treated confidentially." (Exhibit R2)The Applicant gave evidence that her understanding of the purpose of her conference with Mr Slattery and the role to be played by him was to present her "issues" to the Navy as she had presented them to him. She stated that she considered those issues to involve only her concerns with the Navy and not with other individuals, and objected to the characterisation of her issues as a "dispute" with those individuals. She also expressed her view that if she had known that the process undertaken by Mr Slattery was regarded by the Respondent as a mediation, or something akin to a mediation, then she would not have taken part in it.
In cross examination, the Applicant conceded that Mr Slattery made it clear to her that he had spoken to two other individuals and gave her an assurance that anything she said to him would be treated in confidence.
It was the Applicant's submission that she was either misled as to the purpose of her discussions with Mr Slattery or that there was some misunderstanding between them as to the purpose of the process engaged in by Mr Slattery. The significance of this, according to the Applicant, was that the process in which the Applicant was involved was not one of mediation or alternative dispute resolution and for that reason no issues of confidentiality or issues relating to alternative dispute resolution arise. It was also submitted that, since, in her view, the process involved only the Applicant's "issues" then, because she wanted access to only those parts of the report that pertained to her issues, that access should be granted. She also referred to Mr Slattery's oral evidence to the Tribunal that the process he engaged in was not one of "traditional" or "formal" mediation but, instead, was something akin to it.
The Applicant's submission that the process concerned only her "issues" with the Navy and did not amount to any kind of dispute resolution process is not borne out by the terms of the document itself. It deals with not only the Applicant's concerns, or an interpretation of them by Mr Slattery, but also the concerns of other individuals and the relationship between them. While the Applicant may be concerned that there was a failure of understanding between her and Mr Slattery as to the purpose of his work, the Tribunal accepts Mr Slattery's evidence of that purpose, namely that it was to assist the parties, including the RAN, in resolving the issues or the dispute that existed between them.
public interest – s 36(1)(b)
The Tribunal must now determine whether, as required for the exemption to succeed under subsection 36(1)(b), disclosure of the report would be contrary to the public interest.
In relation to subsection 36(1)(b) of the Act, the Respondent submitted that to provide access to the report would be contrary to the public interest because the Slattery Report represents the preliminary opinions and recommendations of a neutral "third party" to the dispute, for the consideration of the decision maker and do not represent the final opinion of the Respondent. The document itself contains a strong warning to the Command Legal Officer, the recipient of the report, to the effect that the report contains information which is highly sensitive so far as the negotiations between the parties are concerned and that most of the information contained in the report has been given to him on the basis that it would not be disclosed to any one of the parties during or after resolution is achieved. It also contains a warning to the effect that disclosure of the report to any one of the parties has the capacity to prevent settlement or to cause a concluded settlement to be reopened.
It was submitted by the Respondent that the Slattery Report contains highly confidential and personal detail concerning the three individuals whose participation in the process might have been significantly hindered had it been thought that the information subsequently given might be released. It was also submitted that the release of the Slattery Report might serve to protract the dispute it sought to address, leading to debate about its contents rather than the making and implementation of decisions by the decision maker, which may or may not have followed the recommendations of Mr Slattery. The Respondent also submitted that to provide access to the report would undermine the process of alternative dispute resolution by affecting the willingness of participants to communicate with candour to a mediator.
On the question of whether disclosure of the report would be contrary to the public interest, the Applicant argued that, given that one of the individuals concerned had made a submission dealing with the same subject matter to the Parliamentary Inquiry then the information in the Slattery Report was already in the public arena and could not be characterised as confidential or as requiring protection. Its release could therefore not be contrary to the public interest.
The Applicant also argued that the submission made to the Parliamentary Inquiry called into question the Applicant's professional and personal integrity and that it is against the public interest for such allegations to remain unanswered. It is, according to the Applicant, in the public interest for the "respondent's assessed perspective of the applicant to be available so as to balance what could well be false assertions by one of the parties to the dispute". The Applicant also submitted that there is a public interest in all private citizens having access to documents going to their personal circumstances.
The Applicant referred the Tribunal to the following decisions:
Kamminga and ANU (1992) 15 AAR 297 at 300;
Re Fewster and Department of Prime Minister and Cabinet (No.1) (1986) 11 ALN N266 at 271;
Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] 1 QAR 60 at 119;
Re Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659;
Re Huttner and Department of Immigration and Ethnic Affairs (1995) 38 ALD 781;
Re VXF and HREOC (1989) 17 ALD 491 at 504; and
Re Corr and Department of Prime Minister and Cabinet (1994) 35 ALD 141 at 148 – 149.
The Tribunal notes that the decision in Corr and Department of Prime Minister and Cabinet (supra) relates rather to the operation of section 45 of the Act. The Tribunal further notes that in Re Huttner and Department of Immigration and Ethnic Affairs the Tribunal concluded that it would be contrary to the public interest for documents detailing interviewers' comments on interviewees for a tribunal membership to be released, given the greater public interest in encouraging candour and frankness in the selection process.
In Re Howard and Treasurer of Commonwealth of Australia (supra) pp 634-635 the then President of the Tribunal, after considering a number of the Tribunal's decisions, including Re Peters and Department of the Prime Minister and Cabinet (1983) 5 ALN No 218,; Re Waterford and Department of Treasury, supra,; Re Murtagh and Commissioner of Taxation, (1984) 6 ALD 112; Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257,; Re Burns and Australian National University (1985) 7 ALD 425 and; Re Lianos and Secretary to Department of Social Security AAT N 83/893,19 February 1985, said: "… it is possible to postulate that in each case the whole of the circumstances must be examined including any public benefit perceived in the disclosure of the documents sought but that:
(a) the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed;
(b) disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest;
(c) disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest;
(d) disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest;
(e) disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process."
The Respondent has submitted that the last three of the above criteria are met by the document and documents of its type.
The decision in Re Howard and Treasurer of Commonwealth of Australia has been the subject of substantial comment by the Tribunal in later decisions. In Kamminga and ANU (supra) pp 588-589 the President of the Tribunal said :
"(12) For para (b) to apply it is necessary for the tribunal to find that disclosure would be contrary to the public interest. It is not the case that the tribunal has to be satisfied that disclosure is in the public interest: see Re Burns and Australian National University (1984) 6 ALD 193;; 1 AAR 456 at 458. Deciding whether disclosure is contrary to the public interest requires a balancing of competing interests including the public interest in the applicant's right to know (; Re Peters and Department of Prime Minister and Cabinet (No 2) (1984) 5 ALN N306; Re Burns and Australian National University (1984) 6 ALD 193;; 1 AAR 456), which is a different thing to the applicant's personal interest in knowing. The tribunal must balance this against any adverse effect disclosure might have on the proper working of government or its agencies:; Harris v Australian Broadcasting Tribunal (1983) 50 ALR 551 unsuccessfully appealed on other grounds at (1983) 51 ALR 581. The cases discuss a number of ways in which such an adverse effect might arise. However, it is necessary to consider the circumstances of each case. In the case of the university the public interest includes the maintenance of a high standard of scholarship. Considerations which apply to documents created for the purpose of policy making at a high level are not applicable in the present case.
(13) There may be a public interest in maintaining the confidentiality of documents. Section 45 of the FOI Act, as amended, which is discussed below, provides protection for documents to which the equitable doctrine of confidentiality applies. In Re Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659 at 662–3;; 7 AAR 355 at 359 the tribunal said:
Under the FOI Act confidentially [sic] was made the subject of express provision under s 45. While not closing the door on s 36 public interest claims made on the footing of confidentiality (see for instance Re Lianos at 524) it seems to me that, notwithstanding the provisions of s 32 of the FOI Act, it should take special circumstances for it to be found that there are reasonable grounds for a s 36 claim in such circumstances: see; Re Downie and Department of Territories (1985) 4 AAR 168 at 178, where it was said that 'to allow this as a consideration would be to counteract the limiting effect of s 45 (2) '. The FOI Act has set out clearly expressed grounds of exemption in these two areas, and indeed in relation to 'in-house' governmental communications s 45 was amended for the apparent purpose of tightening the criteria therein laid down.
The tribunal in that case was concerned with the use of s 36 as a "back door" means of issuing a conclusive certificate based on confidentiality. (Hence the reference to "reasonable grounds".) And in Re Downie and Department of Territories (1985) 4 AAR 168 the tribunal was concerned with "in-house" communications, which are expressly mentioned in s 45 (2). The documents in the present case are not covered by s 45 (2). It is none the less the case that parliament has provided elsewhere in the Act for an exemption on the grounds of confidentiality. In the Freedom of Information Amendment Act 1991 parliament recently gave legislative voice to a narrow construction of the exemption (see below). In; Re Reith and Minister for Aboriginal Affairs (1988) 16 ALD 709 the then president of the tribunal, Hartigan J, considered whether a briefing note from the secretary of a department to the minister attracted the exemption in s 36. In deciding that it did, his Honour considered the need for confidentiality in communications between the minister and the secretary. A reading of the reasons shows, however, that it was not the breach of confidentiality itself that was significant; it was the fact that the advice related to formulation of and changes to government policy in a sensitive area. Confidentiality in this sense is synonymous with non-disclosure and is to be distinguished from confidentiality arising from an understanding between an agency and an outside person that a document is "confidential". The tribunal considers that in the absence of special circumstances a document is only exempt under the Act on the grounds of confidentiality in this latter sense if it is exempt under s 45. Accordingly, this is not a factor to be taken into account when assessing the public interest under s 36 (1) (b)."
See also Re Fewster and Department of Prime Minister and Cabinet (No 1) (supra); Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (supra) at 119.
In Re Lianos and Secretary to the Department of Social Security (supra) pp 495-497 the Tribunal considered the issue of what may be contrary to the public interest:
"What the Tribunal is concerned with under s.36 of the FOI Act is balancing the public interest in disclosure recognised by the Act with the public interest in ensuring the proper functioning of Government - itself a multi-faceted concept.
75. Thus, although the decision in Sankey may not be definitive on the public interest issues that arise under the FOI Act, it provides, in my view, the most authoritative guidance available to this Tribunal as to how public interest issues are to be resolved and as to the considerations that are likely to be relevant for that purpose.
76. The candour and frankness issue was extensively canvassed in Sankey. In the very special circumstances of that case, it was rejected as providing a sufficient ground for the claim of privilege from production made by the Crown (see per Gibbs ACJ at 41; Stephen J at 63; Mason J at 97).
77. However, I do not understand their Honours as doubting that candour and frankness in the expression of opinions, advice and recommendations is a precept of good government. What has been questioned is whether the fears traditionally expressed by administrators about the future impact of disclosure if a claim of Crown privilege is rejected, are well founded. Indeed, in Sankey, Mason J said at 97:-"I should have thought that the possibility of future publicity would act as a deterrent against advice which is specious or expedient."
78. The question that arises for the purposes of the FOI Act, as it seem to me, is the extent to which (if at all), the more pervasive requirements of that Act as to disclosure of documents may throw any new light upon the candour and frankness argument. As the Senate Committee observed, judicial decisions requiring disclosure of particular documents, because they occur only spasmodically, "may result at most in a negligible (albeit significant) degree of disclosure". Disclosures under the FOI Act, by contrast, are likely to occur on "a much more frequent basis". If it is found that there is discernible prejudice to the quality of the deliberative process as a result of disclosures that are made under the Act, evidence to substantiate that claim should be adduced. But as previous decisions of this Tribunal have made clear (see Re Murtagh at 124; Re Chandra at 70,206; cf. Re James) the Tribunal has not regarded claims of anticipated prejudice to the deliberative process, that are based on no more than subjective opinions and unsubstantiated fears, as carrying much weight.
79. Nevertheless, given that there is, to my mind, a recognised need for candour and frankness in the expression of opinions, advice and recommendations, there may well be cases where, having regard to the subject matter of a particular document and the circumstances in which it was created, the candour and frankness with which views were expressed will be a relevant consideration as to whether disclosure would be contrary to the public interest. I propose to evaluate the subject documents in that light.
80. Useful guidance may also be gained from the judgments in Sankey as to the place in public interest claims of arguments based on confidentiality. That confidentiality is a relevant consideration is not doubted. However, it is not itself a ground for immunity from disclosure. As Gibbs ACJ said at 42-3:-
"... State papers are not protected from disclosure because they are confidential or because the Minister has taken an oath not to reveal them. The question is whether the disclosure of the documents would be contrary to the public interest. Confidentiality is not a separate head of privilege, but may be a material consideration to bear in mind when privilege is claimed on the ground of public interest: Alfred Crompton Amusement Machines Ltd. V Customs and Excise Commissioners (No2) [1974] AC 405, at p 433." (cf. Commonwealth of Australia v John Fairfax Sons Ltd (1980) 147 CLR 39 at 52 per Mason J.).
81. Finally, a consideration of the judgments in Sankey (see per Gibbs ACJ at 42-3, 46-7; per Stephen J at 56-7, 62; per Mason J. at 99-100) provides useful guidance as to at least some of the factors that need to be considered in evaluating a public interest issue. Relevant considerations include matters such as the age of the documents; the importance of the issues discussed; the continuing relevance of those issues in relation to matters still under consideration; the extent to which premature disclosure may reveal sensitive information that may be "misunderstood or misapplied by an ill-informed public"; the extent to which the subject matter of the documents is already within the public knowledge; the status of the persons between whom and the circumstances in which the communications passed; the need to preserve confidentiality having regard to the subject matter of the communication and the circumstances in which it was made. Underlying all these factors is the need to consider the extent to which disclosure of the documents would be likely to impede or have an adverse effect upon the efficient administration of the agency concerned (cf. Re Murtagh at 125)."
The Tribunal notes that in this case, no certification under subsection 36(3) has been made and so, to some extent, the concerns expressed by the Tribunal in Re Bartlett (supra) do not arise. The Tribunal also notes that it is arguable, and was argued by the Applicant, in relation to the operation of section 45 of the Act, that the Slattery report constitutes an intergovernmental communication. This would, if the Tribunal so concluded, render the document excluded from the operation of subsection 45(1) of the Act by operation of subsection 45(2). This would serve to raise different considerations to those considered by the President of the Tribunal in Kamminga (supra). The Tribunal also considers that, while the Respondent's argument that disclosure of the document would be contrary to the public interest rests to a great extent on the confidentiality of the material contained in it, that confidentiality takes on a particular importance having arisen in the course of the particular process undertaken by the Respondent, that is, attempted dispute resolution. It is argued by the Respondent that the viability of that process depends on the protection, as confidential, of information gained by the Respondent in the process.
alternative dispute resolution and confidentiality
Exhibit A11 is a document which appears to have been downloaded from the website of the National Alternative Dispute Resolution Advisory Council ("NADRAC") and is entitled "Alternative Dispute Resolution Definitions". The document begins as follows:
"Background
Alternative dispute resolution (ADR) procedures have the potential to reduce significantly the costs and delays associated with traditional court proceedings.
As Australians seek less formal means of resolution and governments attempt to contain the costs of the formal court system, the size of the ADR sector is increasing significantly and will continue to do so. ADR procedures are already being used by a wide range of Federal courts and tribunals and other organisations operating in the Federal arena. At the State level, ADR is also being used increasingly frequently.
In response to the growing use of ADR in this country, NADRAC was established in October 1995 to provide independent policy advice to the Federal Attorne- General on the development of high quality economic and efficient ways of resolving disputes before they come before the Federal courts for adjudication.Rationale for the Paper
With the expansion of the range of ADR processes available, there has been a corresponding growth in the range of definitions to describe those processes. As a result, there is currently considerable uncertainty as to the precise ingredients of the ADR procedures intended to be described by various definitions. This situation is compounded by the fact that ADR processes may often have different connotations for different groups within our society. The way in which Australians define ADR services may also differ from the way those services are defined overseas.
This uncertainty is not confined to more recently developed forms of ADR. There is currently, for example, wide variation in the types of services referred to as 'arbitration', 'mediation' or 'counselling'. Mediation in particular is used to cover a wide range of activities from negotiated settlements to conciliation."
The significance of the above is that it shows the public interest in proceedings for resolution of disputes that are an alternative to formal and traditional proceedings. It also shows the wide variation in the types of services referred to as 'arbitration', 'mediation' or 'counselling' and lends support to the Respondent's contention that the process engaged in by Mr Slattery was one of "alternative dispute resolution". Finally, it supports the view that alternative dispute resolution, as a process which has "the potential to reduce significantly the costs and delays associated with traditional court proceedings", is, in most circumstances, in the public interest.
In F Crosbie, Confidentiality in Mediation in Australasian Dispute Resolution, S Duncombe and J Heap Eds., the significance of confidentiality to the process of mediation is examined:
"It has often been asserted by mediators and commentators that confidentiality is one of the fundamental tenets of mediation and other ADR processes. It is submitted that the range of justifications for confidentiality articulated by writers is encapsulated in the following two propositions:
Confidentiality increases the parties' willingness to engage in an ADR process;
Confidentiality enhances the effectiveness of the process…
The willingness of disputants to embark upon an ADR process is often attributed to its confidentiality. There are two principal aspects to this. First, information imparted during the process is not to be disclosed to the world at large by the neutral party or any party present. This is an important and valued factor if the information is commercially sensitive or, as an American commentator has cynically but perhaps realistically stated, where there is a desire to avoid regulatory curiosity: see James J restivo, in Alternatives: 1987. Secondly, disputants may be comforted to know thatthere are limitations on the extent to which information imparted during the process, if unsuccessful, can be used against them in ensuing litigation. An aspect which frequently features in the American literature is the importance of restricting the parties' ability to obtain from the mediator information acquired in the course of the mediation. It has been suggested that inadequate protection of confidentiality in this respect will adversely affect the public perception of mediators' neutrality: see Feedman and Prigoff, Commentary (1987) 2 Ohio St J Dis Res 39…
It is not easy to identify with precision the criteria by which the effectiveness of mediation and other processes may be measured. Suffice it to say that an assessment would have regard to the frequency of settlements and any enhanced appreciation by a disputant of the others' positions or interests. Confidentiality can also be seen as essential to the dynamic of the process in that it encourages the candid flow of information, which in turn makes it more likely that the real positions and interests of the parties will be ascertained.
A member of the American judiciary has argued that openness of communication is essential to rationality in negotiations: see W Brazil, "Protecting the Confidentiality of Settlement Negotiations" (1988) 39 The Hastings Law Journal 307. Such rationality may increase the probability that parties will understand the basis for the proposals that are made, which in turn may promote settlement. The New South Wales Law Reform Commission has supported this argument, commenting in its 1991 report that it is almost a truism that the effectiveness of mediation depends on participation with openness and candour: see New South Wales Law Reform Commission, Alternative Dispute Resolution – Training and Accreditation of Mediators, report No. 67, 1991, p 63."
On this basis, the Tribunal concludes that confidentiality is important to the success and viability of alternative dispute resolution processes. The Tribunal also concludes that the process undertaken by the Respondent, and which produced the Slattery Report, was one of alternative dispute resolution.
the present case
Exhibit R3 is the statement of Mr Ross Coldrey concerning the establishment in 2001 of a Directorate of Alternative Dispute Resolution and Conflict Management within the Department of Defence. Annexed to the statement is a document described as representing current policy in the Australian Defence Force, (Annexure 'A') and another document described as setting out the principles and phases for the processes for the development of a pilot and mature alternative dispute resolution and conflict management program (Annexure 'B'). The documents show an attempt to devise a program for the use of alternative dispute resolution, comprised mainly of mediation and conciliation processes, as an alternative to traditional methods of resolution such as investigation or formal inquiry. The annexed documents also make it clear that confidentiality is an integral feature of the processes proposed to be adopted.
The Tribunal notes that the above program was implemented in 2001 while the process undertaken by Mr Slattery took place in 1998. There is no evidence before the Tribunal to establish that the process undertaken in 1998 was a part of the program formally implemented in 2001. However, it may be inferred that Mr Slattery's work was an early attempt on the part of the Respondent to resolve a dispute within the Defence Forces using a set of processes of the kind later established and more formally recognised in 2001.
It was the Applicant's submission that the process engaged in by Mr Slattery was not one of alternative dispute resolution and so these considerations of confidentiality do not arise. Her view was that she was not involved in any kind of dispute or dispute resolution process. As noted above, this interpretation of events is not borne out by the terms of the document itself and the Tribunal has accepted Mr Slattery's evidence that the purpose of his work was to assist the parties, including the RAN, in resolving the issues that existed between them. This attempt followed a more formal process (the Board of Inquiry) which, in Mr Slattery's words "had not satisfied anyone".
The Applicant's submission that the substance of the dispute has already been made public through one person's submission to the Parliamentary Inquiry, assumes that the description and analysis of the dispute contained in the Slattery Report is identical or at least similar to the submission made to the Inquiry. This is not so. While the contents of the submission to the Parliamentary Inquiry pertain to some aspects of the dispute, largely in terms of background, they offer the perspective of one individual directly from that individual. The Slattery Report, on the other hand, is a distillation and interpretation of that individual's perspective, together with that of the other individuals involved, interspersed throughout with the opinion and recommendations of the author. The concerns discussed in the Slattery Report are also broader than those dealt with in the submission to the Inquiry.
The evidence before the Tribunal points to there having been a protracted dispute involving three people, one of whom was the Applicant, with each other and with the RAN, and that some aspects of the dispute were intensely personal. There is also evidence that the dispute had not been resolved by recourse to formal or traditional methods. The Tribunal concludes that in these circumstances there was a significant public interest in having the dispute resolved efficiently and inexpensively through alternative methods, and that this interest is collateral to the public interest in the efficient administration of the agency.
The Tribunal further concludes that confidentiality or non disclosure was a significant feature of the process engaged in by Mr Slattery and that disclosure of the information, opinions, advice and recommendations in his report could serve to undermine that process in a number of ways. These include:
disclosure may give rise to the reopening of the dispute;
future disputants may be reluctant to engage in alternative dispute resolution if they consider that information arising out of that process may be disclosed;
disclosure may inhibit the success and effectiveness of the program described in Exhibit R3.
The Tribunal considers it is likely that, in a process of attempted resolution of a dispute, disclosure, and the prospect of disclosure in similar processes in the future, will inhibit the kind of effective communication that is generally necessary to alternative forms of dispute resolution. There is a public interest in having disputes within and with agencies resolved as quickly and effectively as possible. It follows that it would be contrary to that public interest to inhibit the process of dispute resolution by failing to protect communications in that process. The Tribunal is satisfied that in the process conducted by Mr Slattery, the information obtained and the opinions, impressions and recommendations that arose out of it did require such protection from disclosure. The Tribunal stresses that its conclusion applies to the circumstances of this application. There may well be instances where, within the context of dispute resolution, the exercise of weighing the public interest in disclosure against the public interest in the protection of information arising in alternative dispute resolution, yields a different conclusion.
The Tribunal is conscious of the lapse in time since the Slattery Report was created in 1998. However, two matters influence the Tribunal in concluding that this lapse in time does not serve to diminish any adverse effect that disclosure would have on the public interest.
The first is that the Applicant has exhibited a preparedness to pursue her issues further. Her evidence was that in a meeting with Commander Scarce prior to her meeting with Mr Slattery, she mentioned her intention to take her concerns to the media. In addition the letter she wrote to Mr Slattery prior to her conference with him was headed "Written in Anticipation of Litigation Without Prejudice" (Exhibit A4). Her evidence was that this was done on the basis of legal advice.
Although the Applicant denies any interest in the matter now, she exhibited and gave evidence of ongoing concern with the issues involved. This is apparent in the extent to which she has sought access to the Slattery Report, an interim document, despite some having already received advice of the RAN's decided action in response to her concerns some time ago. The Tribunal concludes that this indicates a currency of significance of the process undertaken in 1998 and the potential for a reopening of the dispute.
The second basis on which the Tribunal considers that the elapsed time does not impact on the potentially adverse effect of disclosure is that processes of, and a program for, alternative dispute resolution have now been formalised by the Respondent. The disclosure of a report of an, albeit earlier and less structured, alternative dispute resolution process would have a retarding effect on the Respondent's newly established program and procedures. This, on the basis of the reasoning outlined above, would be contrary to the public interest.
Given the Tribunal's conclusion that section 36 of the Act operates to exempt the Slattery Report from disclosure under the Act, it is not necessary for the Tribunal to consider the other provisions of the Act (sections 40 and 45) which, the Respondent has argued, operate to exempt the document.
Determination
The decision under review is affirmed.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL
Signed: R. Savage .....................................................................................
AssociateDate/s of Hearing 11 September 2001
Date of Decision 18 December 2001
The Applicant was represented by her husband
Solicitor for the Respondent Ms Nansen
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