"SRTTT" and Department of Defence
[2004] AATA 1175
•9 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1175
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/90
GENERAL ADMINISTRATIVE DIVISION ) Re “SRTTT” Applicant
And
DEPARTMENT OF DEFENCE
Respondent
DECISION
Tribunal Senior Member M D Allen RFD.
Mr I R Way, MemberDate9 November 2004
PlaceSydney
Decision The decision under review being the Deemed Refusal to release documents pursuant to the Freedom of Information Act 1982 is set aside and the Tribunal substitutes in lieu thereof its decision namely that:
1. The documents contained in the Annexure to Exhibit R1 (Schedule 2) be released to the Applicant either totally or in part in accordance with the Tribunal’s reasons for decision.
2. The documents contained in the Annexure to Exhibit R2 (Schedule 3) are exempt from release to the Applicant with the exception:
(a) the following documents numbered 40, 41, 50, 56, 75, 76, 77, 78, 94, 103, 104, 110, 114, 123, 160, 175, 179, 202, 207, 211, 214, 215, 216 and 217 which are to be released to the Applicant either in whole or in part as indicated in Schedule 3; and
(b) documents numbered 1, 14, 17, 44, 45, 52, 81, 84, 89, 90, 113, 121, 132, 154, 157, 159, 176, 182, 190, 197, 198, 201, 205, 206, 209, 212 and 213 which are to be released either in whole or with deletions in accordance with the Tribunal’s reasons for decision.
3. The documents listed in Exhibit R3 are to be released to the Applicant as indicated in that exhibit with the exception of the documents numbered 11, 12, 13, 14 and 17 which are to be released to the Applicant either in whole or with partial exemptions as per the Tribunal’s reasons for decision.
4. The documents listed in Exhibit R4 are exempt from release under the Freedom of Information Act 1982.
5. For the purposes of section 66 of the Freedom of Information Act 1982 the Tribunal finds that the Applicant has been substantially successful in her application for review and recommends to the Attorney General that the costs of the Applicant’s relation to these proceedings be paid by the Commonwealth.
6. The decision of the Tribunal is not to take effect until 1000 hrs on the 11th day of November 2004.
7. Liberty to apply to either party upon 48 hours notice to the other party.
(Sgd) M D Allen
.............................................
Presiding Member
CATCHWORDS
FREEDOM OF INFORMATION –deemed refusal by Department of Defence pursuant to s 56 FOI Act – Respondent must demonstrate documents are exempt from disclosure – documents concerned events at Balmoral Naval Hospital and findings of a Board of Inquiry – Respondent’s claims for exemptions made pursuant to ss 36(1), 38(1), s 41 and 42 of FOI Act – Applicant substantially successful.
Re Windsor and Australian Postal Commission (1991) 22 ALD 401
Dwyer and Department of Finance (& Superannuation Fund Investment Trust) (1985) 8 ALD 474
Dunn and Department of Defence [2004] AATA 1040
Re Kamminga and Australian National University (1992) 26 ALD 585
Right to Life Association (NSW) INC v Secretary, Department of Human Services and Health and Another (1995) 128 ALR 238
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606
Vance v Air Marshall McCormack and ANOR [2004] ACTSC 78
Freedom of Information Act 1982 – s 4, 36, 38, 41, 42, 56, 64, 66
Defence (Inquiry) Regulations 1985 – regulation 63
REASONS FOR DECISION
9 November 2004 Senior Member M D Allen
Mr I R Way, Member1. By letter dated 26 November 2001 the Applicant requested access, pursuant to the Freedom of Information Act 1982 (“the FOI Act”), to “all RAN and Department of Defence documents relevant to myself particularly during the period 1991 to the present time”. The letter of request then set out a list of 20 specific items regarding which the Applicant was seeking access.
2. As the Applicant’s request was not actioned within 30 days of its receipt by the Respondent, it became a deemed refusal pursuant to s 56 FOI Act and an application was lodged with the Administrative Appeals Tribunal (“the AAT”) on 21 January 2002.
3. On 16 January 2002 a Lieutenant Commander Ritchie stated that to attend to the Applicant’s request would “substantially and unreasonably divert the resources of the agency from its other operations“, referring to s 24 FOI Act. No reasons were given for this opinion.
4. After hearing evidence adduced on behalf of the Respondent, the Tribunal on 15 October 2003 directed that further investigations be taken by the Navy to identify the documents sought.
5. Following further and better investigation by the Royal Australian Navy (“RAN”) on behalf of the Respondent and a refining of her request by the Applicant, the matter came on for hearing before this Tribunal on 18, 19 and 22 October 2004.
6. Prior to the hearing, the Tribunal was provided with copies of the documents regarding which either whole or partial exemption from disclosure was claimed. These documents were handed to the Tribunal pursuant to s 64 FOI Act. As such they were not made available to the Applicant or her representative but each and every document has been examined by the Tribunal.
7. The Tribunal acknowledges that there may be some inconsistencies in its rulings in that some documents originally claimed as exempt have on further examination by the Respondent been released to the Applicant. We have not sought to cross reference documents but have applied our minds solely to the individual documents in the Volumes provided to us by Respondent and the claimed reason(s) for exemption from disclosure.
8. At the outset, it is proper to acknowledge that the documents sought have their genesis in events that occurred at Balmoral Naval Hospital in the years 1996 to 1997 and beyond. On 23 April 1997, a Board of Inquiry was appointed to examine certain events at Balmoral Naval Hospital and that Board of Inquiry made certain recommendations in its report. The Applicant was at the relevant time serving at Balmoral Naval Hospital. Whereas it was quite apparent that some of the material and names not disclosed to the Applicant would have been known to her, what must be kept in mind is that disclosure under the FOI Act is disclosure not solely to the parties in the present proceedings, with consequent restrictions upon further use and disclosure (see eg Re Windsor and Australian Postal Commission (1991) 22 ALD 401 at 405) but is an unrestricted disclosure “to the public at large” see Dwyer and Department of Finance (& Superannuation Fund Investment Trust) (1985) 8 ALD 474 at 482.
9. A more complete understanding of events can be ascertained from a perusal of confidential Exhibit C1 in these proceedings which is the Report of the Board of Inquiry concerning Balmoral Naval Hospital during the period 21 May 1996 to 24 April 1997. That report sets out evidence, findings and recommendations.
10. The Board of Inquiry was constituted pursuant to the Defence (Inquiry) Regulations 1985 (Statutory Rule No 114 of 1985 as amended). Regulation 63 of the said Regulations states inter alia:
(1) In this regulation:
Person to whom this regulation applies means a person employed by the Commonwealth and includes a member of the Defence Force.
Records, in relation to a Court of Inquiry, means:
(a) The transcript or other record of any oral evidence taken;
(b) Any documents received by the Court and accepted as evidence; and
(c) Any statement made under regulation 52 and received by the Court, whether or not accepted as evidence; during the course of the inquiry by the Court.
Report, means a report of a Court of Inquiry and;
(1) In the case of a General Court of Inquiry, includes a statement of an assessor made under sub regulation 19(2).
(2) A person to whom this regulation applies is guilty of an offence if:
(a) The person either:
(i) discloses to a person, or makes available to the public generally, information contained in the records or report of a Court of Inquiry; or
(ii) copies a document, or part of a document, forming part of the records or report of a Court of Inquiry; or
(iii) discloses to a person, or makes available to the public generally, a document, part of a document, or a copy of all or part of a document, forming part of the records or report of a Court of Inquiry; and
(b) The information or document referred to in paragraph (a) came to the knowledge, or into the possession, of the person in the cause of his/her employment.
…”
Sub regulation 3(1) defines a Court of Inquiry as meaning a General Court of Inquiry or a Board of Inquiry.
11. Subsection 38(1) FOI Act provides:
“(1) Subject to subsection (1A), a document is an exempt document if:
(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and
(b) either:
(i) that provision is specified in Schedule 3; or
(ii) …”
Schedule 3 to the FOI Act specifies subregulation 63(2) of the Defence (Inquiry) Regulations.
12. The practical effect of this exemption is that any document or part thereof contained in the volumes of documents disclosed to the Tribunal that refers to a matter before the Board of Inquiry in a manner that reveals that it was before the Board of Inquiry is exempt from disclosure.
13. Exhibit R1 in these proceedings contains a schedule of documents (Schedule 2) in respect of which a partial exemption from disclosure was claimed and the sections of the FOI Act pursuant to which the exemption was claimed. Exhibit R2 contained a schedule of documents namely Schedule 3 in respect of which total exemption was claimed and the sections of the FOI Act referable to the claim for total exemption.
14. During the course of the hearing, further documents were obtained by the Respondent and claims for exemption were made in respect to some of those documents. The documents were referred to as being contained in file NTC 1/19/19(3). The documents for which partial exemption was claimed were contained in a document that became Exhibit R3, and the claims for total exemption were contained in Exhibit R4.
15. We do not regard it as practical to discuss in these reasons the claim(s) for exemption either in full or partial, in respect of each document in the schedules. Instead we intend to discuss the grounds for exemption claimed and our understanding of the applicable law and then to note those documents where we have not affirmed the claim for exemption and our reasons therefor.
16. Claims for exemption were made pursuant to ss 36(1), 38(1), and s 41 and 42 FOI Act.
17. At the outset, the Tribunal acknowledges that s 61 FOI Act places upon the Respondent the onus to demonstrate that any particular document or part thereof is exempt from disclosure under the FOI Act.
18. Subsection 36(1) FOI Act reads:
“ (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. “
19. So far as concerns the documents for which exemption is claimed pursuant to ss 36(1) are concerned it is clear upon examination of them that they are documents produced as part of the deliberative process in divisions of the Royal Australian Navy. The real question is whether their release would be contrary to the public interest.
20. Just what constitutes the public interest for the purposes of ss 36(1) was extensively discussed by the Tribunal in Re Dunn and Department of Defence [2004] AATA 1040 see at paragraphs 75 to 79 inclusive and paragraphs 131 to 134 inclusive.
21. In Re Kamminga and Australian National University (1992) 26 ALD 585 at 588 the Tribunal ( O’Connor J President; Attwood and H Julian, Members) said:
“For paragraph (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. 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, 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. 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…
(Authorities omitted)
cf Lockhart J in Right to Life Association (NSW) INC v Secretary, Department of Human Services and Health and Another (1995) 128 ALR 238 at 245:
“The public interest is a concept of wide meaning and not readily delimited by precise boundaries. Opinions have differed, do differ and doubtless always will differ as to what is or is not in the public interest…”
22. Or, as was put by the Tribunal in Re Dunn (supra) at paragraph 134:
“ It is clear that the notion of public interest is not static…”
23. We can do no more than to say that in respect of each document for which exemption was claimed pursuant to ss 36(1) we have examined the document and made our decision as to whether in our opinion release would be contrary to the public interest, keeping in mind the meaning of the word “contrary” for example, in the Shorter Oxford English Dictionary 3rd Edition:
meaning 2: the opposite, the other (of two things) and
meaning 4: prejudicial, untoward
24. It is not contrary to public interest that some public servant or high ranking Defence Force Officer may be embarrassed by a documents release and having his or her opinions exposed.
25. Subsection 38(1) FOI Act has been referred to above. Subregulation 63(2) of the Defence (Inquiry) Regulations must however be given a restrictive interpretation as it subtracts from the principles behind FOI legislation.
26. Indeed it is difficult to see why reports of Military Boards of Inquiry should be exempt from the FOI Act. Any document affecting national security defence or international relations is exempt from disclosure pursuant to s 33 FOI Act.
27. Section 41 FOI Act states inter alia:
“ (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). “
Whereas “Personal Information” is defined in ss 4(1) FOI Act as:
“…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.”
28. Although the Full Court or the Federal Court in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 was concerned with the phrase “personal affairs of any person” the judgments in that case still provide guidance as to how the subsection should be applied.
29. The FOI Act 1991 amended s 41 to substitute the phrase “personal information” for the words “personal affairs”. Unfortunately the second reading speeches to the amending act do not disclose why the amendment to ss 41(1) was made. It can be argued that the term “personal information about any person” is more restrictive in its concept than the repealed term “personal affairs”. Thus although The NSW Court of Appeal decided in Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 that where the disclosure of the names of an agency’s employees reveals no more than the fact that they were performing their public duties was not disclosure of their personal affairs and thus disclosure of the names of police officers in the preparation of reports was not prevented as being disclosure of their personal affairs, the disclosure of the names of officers of the Commonwealth may require closer consideration. We do not agree however that the mere mention of an officer’s name and his position involves the unreasonable disclosure of personal information about that officer.
30. In Colakovski (supra) Lockhart J at p 438 said :
“ This is not an appropriate case in which to examine definitively the circumstances that may constitute ‘the unreasonable disclosure of information’ relating to a person’s ‘personal affairs’ because the argument before us proceeded on the limited basis outlined previously. It is sufficient for present purposes to say that ‘every person’ has a ‘legally enforceable right to obtain access’ to documents under the FOI Act: s11. There is no requirement that the person seeking access have proprietary or any other interest in documents or the information contained in them. The object of the Act, as expressed by s 3, is to give the ‘Australian community’ the right of access to information in the possession of the Australian Government. What is ‘unreasonable’ disclosure of information for the 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.
…s3 (FOI Act) itself recognises, there are limitations upon these rights of the Australian community which are expressed as being ‘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.’
…”
While at p 441 Heerey J said:
“…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 weight 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.”
31. A question in this matter was whether the dates of postings of certain naval officers could be disclosed to the Applicant. We accept that at one time the Navy Lists, which are publicly available documents, did disclose the posting history of naval officers. The evidence before us was that that information no longer appears in the current Navy Lists for reasons of economy not privacy. Nevertheless we find that the disclosure of the posting history of any particular naval officer is an unreasonable disclosure of personal information about that officer. This is so even though given time and the volumes of the Navy Lists for a period of years this information might be gleaned by any interested person.
32. Claims for exemption were made regardless some documents in reliance upon s 42 FOI Act which states:
“ (1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2) …”
33. The Respondent accepted for the purposes of these proceedings that the decision of Crispin J in Vance v Air Marshall McCormack and ANOR [2004] ACTSC 78 was persuasive authority for this Tribunal. However other documents were clearly raised by reserve legal officers who were in actual practice and thus what in the FOI Act is still termed Legal Professional Privilege applied.
34. Where we have upheld the grounds for exemption, the decision will simply refer to the relevant numbered documents in their particular schedules. However we set forth below those documents we find should be released in whole or in part contrary to the Respondent’s claims and our reasons therefor.
schedule 2 to exhibit r1
35. Referring first of all to the documents listed in the schedule to Exhibit R1 (the 2nd Schedule) being documents to be released in part we affirm the decisions in respect of the documents numbered 1, 3, 6, 7, 10 to 16 inclusive, 18 to 22, 24, 25 and 26. We note that documents numbered 7, 16, 19 and 25 are to be or have been released to the Applicant.
36. Document No.2 of Schedule 2: Paragraph 2 of this document should be released to the Applicant. No question of public interest arises and no individual is named. Otherwise the exemptions claimed are affirmed pursuant to ss 36 and 41 FOI Act. We note pages 2 and 3 of this document refer to matters separate and apart from the FOI request by the Applicant.
37. Document No.4: The excised part of paragraph 10 is to be released to the Applicant. An internal working document, it would not be contrary to the public interest to release paragraph 10 in its entirety. As a service legal officer s 42 cannot apply.
38. Document No.5: The decision regarding paragraphs 20 and 21 of this document is set aside. These paragraphs should not be released to the Applicant as they contain information regarding the personnel affairs of other persons and its disclosure would be unreasonable: see s 41 FOI Act. Otherwise the decision respecting this document is affirmed.
39. Document No.8: Is to be released in its entirety. It does not contain any legal advice (s 42) nor does it refer to the personal affairs of any persons (s 41).
40. Document No.9: To be released. The names of the officers without more is not the unreasonable disclosure of personal information about them. cf Commissioner of Police v District Court NSW (supra).
41. Document No.17: The decision in regard to this document is set aside to the extent that the words “and have nothing to do with the management issues would not be disclosed” where occurring in subparagraphs c and d are to be included in the material disclosed. Likewise the whole of subparagraph e is to be disclosed.
file ntc 1/19/19(3) partial release
42. Of the documents in Exhibit R3 we affirm the decisions regarding documents numbered 1 to 10 inclusive, 15, 16, 18, 19, 21 and 22 for the reasons claimed in Exhibit C2.
43. The decisions regarding documents 12, 13, 14 and 17 are varied in that the name of the reserve legal officer can be released.
44. The decision regarding document 11 is varied in that the second paragraph of that document is to be released.
file ntc 1/19/19(3) total exemption claimed
45. Exhibit R4 sets out the recently produced documents for which total exemption was claimed. Having examined these documents we affirm the decisions under review for the reasons stated in Exhibit R4 namely that they are either internal working documents the release of which would not be to the public benefit or that they are outside the terms of the original FOI request. Documents 32, 38, 41, 42 and 52 are concerned with legal advice obtained from a practising Member of the Sydney Bar and hence s 42 FOI Act exemption applies.
schedule 3 to exhibit r2
46. Exhibit R2 lists documents for which total exemption from production was claimed. As stated above, we have individually examined every document and considered the claimed grounds for non disclosure. Of the documents in Exhibit R2 Schedule 3 we affirm the decision to exempt from either total or partial release the following: Documents 2, 3, 5 to 13 inclusive, 15, 16, 18, 19, 20, 25 to 39 inclusive, 43, 46 to 49 inclusive, 51, 53, 54, 55, 57 to 74 inclusive, 79, 80, 82, 83, 85 to 102 inclusive, 105 to 109 inclusive, 111, 112, 115 to 120 inclusive, 122, 124 to 131 inclusive, 133 to 153 inclusive, 155, 156, 158, 161 to 174 inclusive, 177 to 181 inclusive, 183 to 189 inclusive, 183 to 189 inclusive, 191 to 196 inclusive, 199, 200, 203, 204, 208, 210.
47. We also affirm the decision to release to the Applicant the following documents namely 1, 14, 17, 44, 45, 52, 81, 84, 89, 90, 113, 121, 132, 154, 157, 159, 176, 182, 190, 197, 198, 201, 205, 206, 209, 212, 213.
48. Dealing with the documents in Exhibit R2 Schedule 3 which we find should be released either in whole or in part we determine as follows.
49. Document No.1: Is to be released in part. Although it has the status of an internal working document partial release of its contents would not be contrary to the public interest. It is to be released without paragraph 1 and in paragraph 2 without all the words in the first line up to and including “Board”. In paragraph 4 all of the words up to and including “Report” are to be omitted from the disclosed document.
50. Document No.14: Is to be released after deleting the name of the officer concerned. Again although an internal working document its release would not be contrary to the public interest. It does refer to a legal principle but this is unexceptional and legal professional opinion is not involved.
51. Document No.17: Exemption from disclosure was claimed pursuant to sections 36, 41 and 42 FOI Act. We do not regard these exemption provisions as having any application to paragraphs 3, 4 and 5a, so that our substituted decision is that the document is to be released so as to disclose those specific paragraphs and subparagraph to the Applicant.
52. Documents No. 22, 23 and 24: The Tribunal is unable to rule on these documents as the documents before the Tribunal are not in context and incapable of comprehension.
53. Documents No.44 and 45: Both these documents are to be released. Document No. 45 does not reveal the contents of the Board of Inquiry so that s 38 FOI Act does not apply and although internal working documents their release would not be contrary to the public interest.
54. Document No52: Is the same as document No.1.
55. Document No.52: A s 42 claim was made in respect of this document. Legal Professional Privilege does not attach to this document as it emanates from a service legal officer. Although an internal working document, its release would not be contrary to the public interest.
56. Document No.81: This document is to be released. The s 37 claim cannot be sustained and although within paragraph 36(1)(a) FOI Act its release would not be contrary to the public interest.
57. Document No.84: Similar reasoning to that applying to Document No.81 above applies and this document is to be released.
58. Documents No.89 and 90: These documents concern an investigation into a possible offence against the Defence (Inquiry) Regulations. A claim for exemption was made pursuant to paragraph 37(1)(b) FOI Act but that claim was not maintained at the hearing a decision with which we agree. There are no provisions of the FOI Act which exempt these documents from disclosure.
59. Document No.113: This document is within paragraph 36(1)(a) FOI Act but its release would not be contrary to the public interest it being no more then a statement of fact.
60. Document No.121: This is a record of a conversation and is in reality unexceptional and its release would not be contrary to the public interest.
61. Document No.132: A claim for exemption was made under grounds of legal professional privilege and it being an internal working document. These claims cannot be affirmed. The document’s author is a service legal officer. The release of the document would not be contrary to the public interest.
62. Document No.154: Whereas portions of this document would unreasonably disclose personal information about other persons other parts do not and it would not be contrary to the public interest to disclose those parts of the said document. The claim for exemption from disclosure therefore is set aside and we substitute our decision which is that paragraphs 5 and 15 to 17 inclusive of the said document are to be released to the Applicant.
63. Document No.157: The reference to the names of other RAN officers should be exempted from disclosure pursuant to s 41 FOI Act otherwise disclosure of the document would not be contrary to the public interest and thus the document is to be released in part.
64. Document No.159: This is a public document a copy of which could be obtained from the nominated Local Court. We do not regard its release to the Applicant as constituting unreasonable disclosure of personal information regarding the persons named and it is to be released.
65. Document No.176: This document is to be released in part namely by release of paragraphs 1, 2, 3 and 6. The exemptions claimed being pursuant to sections 36, 38 and 41 are affirmed as regards to rest of the said document.
66. Document No.182: This document is to be released with the names of other RAN officers deleted pursuant to s 41 FOI Act. Otherwise the release of the said document would not be contrary to the public interest.
67. Document No.190: We cannot see how the release of this document could be contrary to the public interest therefore the decision to exempt it from release is set aside and we direct that it be released.
68. Documents No.197 and 198: These documents do not disclose the contents of the Report of the Board of Inquiry nor would their release be contrary to the public interest. The decisions to exempt them from release are therefore set aside.
69. Document 201: The claimed ground for exemption is s 36 FOI Act. We do not regard the release of this document as being contrary to the public interest.
70. Documents No.205, 206, 209 and 212: All of these documents were claimed to be exempt from release pursuant to s 36 FOI Act. Having perused these documents we cannot ascertain how their release would be contrary to the public interest, so that the claims for exemption in respect of these documents are set aside and they are to be released to the Applicant.
71. Document No.213: The claim for exemption was made regarding this document pursuant to sections 36 and 42 FOI Act. The status of the officer giving the advice is not disclosed in the document but document No. 212 reveals him to be a serving officer therefore legal professional privilege would not attach to his advices see Vance v McCormack (supra). To release the document would not be contrary to the public interest therefore the decision claiming exemption is set aside.
72. As is inevitable in Freedom of Information matters where a large number of documents are sought, the actual machinery of making documents available is not always straightforward. In addition, it is proper that the Respondent be given a chance to consider its position as to whether it wishes to challenge all or part of the Tribunal’s decision. We therefore direct that the Tribunal’s decision is not to take effect until the expiration of 48 hours from the time it is handed down and that liberty to apply is given to both parties.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Mr I R Way, Member
Signed: (E.Pope) .....................................................................................
AssociateDates of Hearing 18, 19 and 22 October 2004
Date of Decision 9 November 2004
Representative for the Applicant Mr C Maxworthy
Counsel for the Respondent Mr J Smith
Solicitor for the Respondent Australian Government Solicitor
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