Taylor v Chief Inspector, RSPCA
[1999] NSWADT 23
•19 April 1999
CITATION: Taylor - v- Chief Inspector, RSPCA [1999] NSWADT 23 DIVISION: General APPLICANT: Allan Thomas Taylor RESPONDENT: Chief Inspector, RSPCA FILE NUMBER: 993025 HEARING DATES: 30/03/99 SUBMISSIONS CLOSED: 30/03/99 DATE OF DECISION: 19 April 1999 BEFORE:
M A Robinson Presiding Judicial MemberPRIMARY LEGISLATION: Freedom of Information Act 1989 APPLICATION: Review of refusal to grant access to documents - MATTER FOR DECISION: Principal matter REPRESENTATION: Applicant:
Respondent:
In person
P Rowe of counsel instructed by Smythe & MallamORDERS: 1. The reviewable decision is set aside.
2. Those parts of the two documents which fall within the scope of applicant's FOI application and which identify the name, address or phone number of the informant are exempt matter within the meaning of section 6(1) of the FOI Act and clause 4(2)(a)(v) of Schedule 1 of the FOI Act.
3. Pursuant to section 25(4) of the FOI Act, the exempt matter is to be deleted from the two documents and a copy of the documents with the exempt matter so deleted is to be provided to the applicant.
4. The two documents that comprise the confidential exhibits in these proceedings be returned to respondent after the expiration of 28 days from today.
1 In late December 1998, the applicant made a request for access to certain documents of the respondent in a written application made under section 17 of the Freedom of Information Act 1989 (NSW) ("the FOI Act"). Section 16 of the FOI Act provides for a legally enforceable right to a person to be given access to an agency's documents in accordance with the Act. The documents sought in the application were described in the following terms:
"The complaint lodged against me by one of my neighbours regarding pigeons that caused Inspector Lisa McLean to attend my premises on 25/11/98".
2 The application was considered by Mr Steven Coleman, Chief Inspector of the Royal Society for the Prevention of Cruelty to Animals New South Wales Inc ("the RSPCA") and refused in a letter to the applicant dated 21 December 1998. The letter acknowledged receipt of the application and simply stated the following:
"Please be advised that documents relating to law enforcement are exempt under the provisions of an exempted schedule within that [FOI] Act. Therefore, I am unable to provide you with the documents that you are seeking."
3 It must be said at the outset that the above quoted letter was all that the applicant received by way of a statement of the decision and the reasons for the decision by the decision-maker here. It was plainly deficient in a number of significant respects. In summary:
(a) On the finding of the respondent that the documents sought were considered by him to be exempt documents (presumably within the meaning of clause 4 of Schedule 1 of the FOI Act) the respondent failed to apply the public interest test contained in clause 4(2)(b) of the Act and failed to exercise the discretion contained in section 25(1) of the FOI Act as to whether or not to release the documents sought, notwithstanding that they were considered exempt;
(b) No consideration was apparently given to whether access should be granted to the alleged exempt documents in a form which deleted any exempt matter from the face of the documents (if that is what the applicant would wish) as required by section 25(4) of the Act and as permitted by section 28(2)(c) of the Act;
(c) Reasons for refusal and the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings were based were not provided as required by section 28(2)(e) of the FOI Act; and,
(d) The decision was not accompanied by a statement of the respondent setting out the rights of internal review and appeal to this Tribunal, and the rights of complaint to the Ombudsman, conferred by this Act and the Ombudsman Act 1974 in relation to the determination, and the procedures to be followed for the purpose of exercising those rights as required by section 28(2)(g) of the FOI Act.
Internal FOI Review
4 The applicant applied to the respondent on 12 January 1999 for internal review of the adverse decision as provided for in section 34 of the FOI Act. Such applications should comply with the terms of that section, and in particular, should be in writing. No written application seeking such internal review was tendered in evidence before me and the respondent said nothing on the issue at the hearing. I am satisfied that the applicant did apply for internal review prior to the commencement of these proceedings. The applicant's application for a review of a decision was filed on 28 January 1999.5 The RSPCA did not determine the internal review application. By virtue of section 34(6) of the FOI Act, after 14 days from the date of the making of the internal review application, the respondent agency is deemed to have made a determination under section 24 refusing access to the documents to which the application relates.
6 I am satisfied that the Tribunal has jurisdiction to hear the matter under section 53 of the FOI Act and section 55 of the Administrative Decisions Tribunal Act 1997 (NSW) ["ADT Act"].
The Hearing
7 The matter came on for hearing in the Tribunal on 30 March 1999. The applicant appeared in person. The respondent was represented by a solicitor and a barrister.8 The applicant is an 84 year old man who lives in Sydney. He informed the Tribunal that for a long time he has cared for a number of pigeons in the backyard of his home. He loves his pigeons and would never do anything to harm them. For some time he has been involved in a dispute with one of his neighbours. In late November 1998, a person telephoned the RSPCA and lodged a complaint to effect that the applicant was not looking after his pigeons and that some of them had died.
9 On 24 November 1998 Inspector Lisa McLean, of the RSPCA, attended the applicant's premises and inspected the 2 aviaries. Eight pigeons and one dove were found to be in good condition with water and seed provided. The complaint was considered by the RSPCA to have been unfounded or frivolous and was made in the context of a neighbour dispute. All of this was made known to the applicant at his premises on that date.
10 However, the applicant wishes to uncover from the respondent, by means of FOI, the identity of the complainant. It seems to me that the applicant can already deduce as a matter of plain logic that one of his neighbours made the complaint. In his original FOI application he sought a copy of the complaint lodged against him by one of his neighbours and the letter from the respondent dated 21 December 1998 refusing FOI release identified exempt "documents" which fell within the scope of the applicant's application. So, the applicant can be satisfied that a neighbour did make a complaint in relation to him to the RSPCA.
11 I say this about the applicant's above intentions merely because it has been raised before me by the parties and it is not contested. Strictly, the motives of an applicant and, in most cases, the identity of an applicant, in seeking access to documents under the FOI Act, is not a relevant matter for the Tribunal or an original decision-maker to take into account when determining an application.
The Proper Respondent
12 For a reason that was not made apparent to me, the original named respondent to these proceedings was styled "The Chief Executive Officer, RSPCA". At the hearing, the respondent's counsel made an application that the RSPCA was not a "public authority" within the meaning of that expression in section 7 of the FOI Act and was therefore not an "agency". That provision sets out a detailed mechanism for determining whether a body may properly be considered a public authority and, therefore an "agency" as defined in section 6(1) of the Act, defined as follows:"agency means a Government Department, public authority, local authority or public office, but does not include a body or office that is, by virtue of section 9, exempt from the operation of this Act in relation to all of its functions."
13 The documents sought these proceedings are those of an "agency" under sections 16 (which creates the right to access) and 17 (which sets out the means by which FOI applications must be made) of the FOI Act.
14 A company search of the RSPCA was tendered from the records of the Australian Securities and Investments Commission dated 30 March 1999. The RSPCA is a company limited by guarantee, bound by a constitution and was incorporated in 1895 in New South Wales. I was informed that there was no "legislative instrument" within the meaning of that expression in section 6(1) of the FOI Act which was concerned in the creation or establishment of the RSPCA.
15 I accept this evidence and agree that the RSPCA is not a "public authority" under section 7 of the FOI Act.
16 However, it seems to me that the FOI decision-maker here was Mr Steven Coleman, Chief Inspector of the RSPCA, in his capacity as the holder of a "public office" within the meaning of that expression in section 8 of the FOI Act. Section 8 provides:
"8 Public offices
(1) In this Act, a reference to a public office is a reference to:
(b) an office declared by the regulations to be a public office, being an office to which an appointment is made by the Governor or by a Minister otherwise than by or under the provisions of a legislative instrument.
(a) an office established for a public purpose by or under the provisions of a legislative instrument, other than an office that, under subsection (2), is not to be taken to be a public office, or(3) A person shall not be taken to be the holder of a public office:
(2) The regulations may declare that a specified office is not to be taken to be a separate public office but is to be taken to be included in a specified agency.
(a) by virtue of the person's holding office as:
(i) Governor, Lieutenant-Governor or Administrator of the State, or(ii) a member of the Legislative Council or the Legislative Assembly or of a committee of either or both of those bodies, or
(iii) President of the Legislative Council or Speaker of the Legislative Assembly or chairman of a committee of either or both of those bodies, or
(iv) a Minister of the Crown, or
(v) a Parliamentary Secretary, or
(vi) a member of the Executive Council, or
(b) by virtue of the person's holding:
(i) an office the duties of which the person performs as an officer of an agency, or(ii) an office of member of an agency, or
(iii) an office established by or under the provisions of a legislative instrument for the purposes of an agency, or
(iv) an office established by or under the provisions of a legislative instrument for the purposes of a body referred to in section 7 (1) (a) (i)-(v)."
17 Section 7 (1) (a) (i)-(v) of the Act provides:"7 Public authorities
(1) In this Act, a reference to a public authority is a reference to:
(a) a body (whether incorporated or unincorporated) established for a public purpose by or under the provisions of a legislative instrument, other than:
(i) an incorporated company or association, or(ii) a body that, under subsection (2) or (3), is not to be taken to be a public authority, or
(iii) the Legislative Council or the Legislative Assembly or a committee of either or both of those bodies, or
(iv) a Royal Commission or a Special Commission of Inquiry, or
(v) a local authority, ..."
18 There is nothing set out in regulations that relates to the RSPCA or its officers.19 The respondent's counsel argued that the RSPCA officer was not public officer due to the combined operation of section 8(3)(b)(iv) and section 7(1)(a)(i) of the FOI Act. In narrative form, and putting the 2 provisions together for this purpose, it was argued that the RSPCA officer should not be taken to be the holder of a public office because the officer held an office established by or under the provisions of a legislative instrument for the purposes of a section 7(1)(a)(i) body - the RSPCA.
20 While I accept and have decided that the RSPCA is properly considered a section 7(1)(a)(i) body - and accordingly it is not a public authority under the FOI Act, I do not accept that the RSPCA officers concerned here hold office for the purposes of the RSPCA. They hold office for the purposes of administering their respective duties under their instruments of appointment.
21 Stephen Coleman and Lisa McLean are both inspectors of the RSPCA. They are each appointed as "special constables" under section 101(1A) of the Police Offences Act 1901 (NSW) in their capacity as RSPCA officers.
22 The RSPCA is named as a "charitable organisation" within the meaning of that expression in section 4(1) of the Prevention of Cruelty to Animals Act 1979 (NSW). Inspectors of the RSPCA are each "officers" within the meaning of that same section. Officers are defined to mean:
"(a) a member of the police force or an inspector within the meaning of the Animal Research Act 1985,
(b) an officer of an approved charitable organisation who is a special constable within the meaning of the Police Offences Act 1901, or
(c) a public servant who is appointed by the Minister as an officer for the purposes of this Act. "
23 Accordingly, RSPCA inspectors who are officers of the RSPCA and who are special constables hold office for the purposes of administering, inter alia, the Prevention of Cruelty to Animals Act 1979 ["PCA Act"]. Officers under that Act who have prescribed authority under that Act have significant powers in relation to entry and inspection of certain places (section 25, PCA Act) and power to take possession of animals (section 26, PCA Act) and seizure (section 26A, PCA Act). Other significant powers exist to investigate and prosecute breaches of the PCA Act. These powers are properly characterised as "law enforcement" powers (see for example, section 34B of the PCA Act).
24 The public nature of these law enforcement powers is recognised by the NSW Parliament in the 1996 amendments made to the costs provisions of the Justices Act 1902 (NSW) in sections 41A(2C), 81(6) and 125(5). These provisions make it clear that RSPCA informant officers are "not acting in a private capacity" when they bring proceedings in Court as the informant or complainant under the PCA Act.
25 Accordingly, at the hearing of the matter on my own motion under section 67(4) of the ADT Act, and after hearing argument on the matter, I substituted the Chief Inspector, RSPCA, as the named respondent in these proceedings.
26 In relation to the meaning of public office in the FOI context, similar or related provisions may be found at section 4(1) in the definition of "prescribed authority" and section 4(3) of the Freedom of Information Act 1982(Cth)("Commonwealth FOI Act"). In Kavvadias v Commonwealth Ombudsman (No2) (1984) 2 FCR 64 at 205 (Sheppard J) the Federal Court held that the Commonwealth Ombudsman was a prescribed authority.
27 In Victoria, the position is very similar to that of the Commonwealth. Section 5(1) of the Freedom of Information Act 1982 (Vic) ("Victorian FOI Act") sets out the same definition on prescribed authority as appears in the Commonwealth legislation. It must be read with section 5(3) of the Victorian FOI Act. These Commonwealth and Victorian sections are not easy to understand, as was remarked by Member KR Howie in the then Administrative Appeals Tribunal of Victoria in Re Clarkson and Office of Corrections (1989) 4 Victorian Administrative Reports 1 at 5. In that case, the Victorian AAT considered that it was not necessary to find express words in an Act stating specifically that a public office has been established. That approach is "unnecessarily inflexible". An office established by an Act is one that is "set up or brought into being by that Act" (at page 5). The Tribunal also considered that the public office provisions in Victoria were intended to substantially limit the circumstances in which a person, as compared to a body (corporate or unincorporate) may be a prescribed authority (ibid).
28 In Clarkson's Case the Tribunal held that the Secretary to the Adult Parole Board was a public office and the person held and performed the duties of an office established by an Act and therefore was a prescribed authority. In that case, the Tribunal decided that the subject documents caught in the FOI request were not in the "possession" of the Secretary - they were held as a matter of fact to be in the possession of the Adult Parole Board itself, a body which was not a prescribed authority. Accordingly, access to the documents was refused.
29 It should be noted that the NSW FOI provisions are expressed in different terms from the above Victorian and Commonwealth provisions. They are less difficult to understand.
30 In the present case, the respondent admitted that he had access to and possession of the documents caught within the scope of the applicant's FOI request here. Indeed, I consider it necessary for the officers to have access to the said documents so as to enable the officers to perform their statutory functions and duties. The respondent brought the 2 documents to the Tribunal hearing and they were tendered and admitted as confidential exhibits.
Claimed Exempt Documents - Schedule 1, FOI Act
31 The respondent argued at the hearing that the 2 documents sought here were exempt documents within the meaning of the following paragraphs of Schedule 1 of the FOI Act - Clause 4(1)(a),(b),(c), and, (e). Reliance on clause 4(1)(c) (which relates to endangerment of life or physical safety of any person) was not pressed and I shall not consider it.32 The relevant clauses provide:
"4 Documents affecting law enforcement and public safety
(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
(a) to prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, or(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, or ...
(e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law) ..."
33 Oral evidence was given at the Tribunal hearing by the respondent officer. His evidence, which was given in open session and which I accept, was in summary, as follows:(a) The RSPCA's principal method of discovering alleged breaches of the PCA Act is by a person or persons making a complaint to them. The subject complaint was taken by telephone and recorded on computer by a Duty Officer of the RSPCA (who is not a special constable). An inspector is appointed to investigate the complaint (who is a special constable) and investigates the complaint. The results of the inspection are recorded onto the computer.
(b) The RSPCA has a policy of confidentiality. It will not divulge the identity of an informant or complainant to the person the subject of the complaint. To any person who specifically requests that their name not be disclosed, or in cases where there appears to be an issue or a fear on the part of the complainant, the RSPCA officer or employee will explain the policy, which is applied in all cases, irrespective of any specific request by the informant. It is not known if a specific request for anonymity was made in the present case. In the Chief Inspector's estimation, in about 50% of complaints made to the RSPCA concerning allegations of cruelty to animals, the complainant requests that the identity of the complainant be kept confidential.
(c) In the present case, the officer does not wish to disclose the disputed documents because of:- the said policy; safety considerations regarding the complainant; and that the complainant and other potential complainants might not seek to complain in the future both generally, or in respect of the applicant in what might turn out to be appropriate cases for investigation and action by officers of the RSPCA.
(d) There are about 17,000 complaints made to the RSPCA in NSW each year. About 10% and made by letter and about 90% by telephone. About 50% to 60% of all these complaints turn out upon investigation by RSPCA officers to be unfounded or frivolous and these relate primarily to neighbour disputes (as in the present case). He said that the RSPCA "is often used as a last tool to create some form of hostility between the two parties".
34 At one point during the taking of this oral evidence, the respondent's counsel made an application to close the Tribunal hearing to both the public and the applicant himself under section 55(b) of the FOI Act. It was said that the respondent wished to adduce evidence of the disputed exempt documents and permit the Tribunal to receive them into evidence on a confidential basis and to ask questions on the documents. I decided in favour of the application, and, for a short time, I heard certain evidence going to the said documents and they were then tendered confidentially.
35 Having heard the evidence given by the respondent, I am satisfied that the documents contain "exempt matter" within the meaning of that expression in section 6(1) of the FOI Act. Exempt matter is defined in that section to mean "matter by virtue of which a document is an exempt document". The documents in the form in which they presently exist, containing the exempt matter, are therefore exempt documents within the meaning of clause 4(1)(b) of Schedule 1 of the FOI Act (relating to confidential sources of information in the enforcement of law).
36 In making this finding, I rely primarily on the evidence given by the respondent in open session and my consideration of the nature of the documents concerned. Nothing that was said in the brief closed session persuaded me one way or the other in my determination on this question.
37 I have had careful regard to the evidence and submissions of the respondent, the applicant's stated position, and the relevant policy of the RSPCA. The respondent's evidence was unchallenged by the applicant in relevant respects.
38 In Department of Health v Jephcott (1985) 8 FCR 85 (Forster, Keely and Davies JJ) the Full Court of the Federal Court of Australia held that in respect of the Commonwealth equivalent of the NSW clause, namely, section 37(1)(b) of the Commonwealth FOI Act, a "confidential source" is one where the information provided from that source was given with an express or implied pledge of confidentiality - see: Forster J at 89 and Keely J at 90. I am satisfied here that the information provided by the informant was clearly confidential having regard to the nature of the information, the primary method of the RSPCA of receiving complaints, and, the practice and policy of confidentiality implemented by the officers of the RSPCA in dealing with complaints.
39 I have had regard to what the Federal Court said in McKenzie v Department of Social Security (1986) 65 ALR 645 (Muirhead J). That case concerned a confidential source exemption under section 37(1)(b) of the Commonwealth FOI Act. The Court held (at 649) that deliberately false information which came into the hands of the Department, which did not at the time of receipt know whether it was true or false, was at the time fairly labelled as "information" within the meaning of the section. Once the Department had concluded that the said information had no truth or validity, it was still properly classified as information in the hands of the Department. The Court said at 649:
"Information prompting administrative inquiry is still properly classified as information in the hands of the Department, be it true of false. The Department in the exercise of its responsibilities must and does regularly review the eligibility of recipients of public moneys. Some information may prove of value, some of no value. ...
[The cited cases] emphasise that the confidentiality traditionally given to informers may operate to the advantage of the untruthful or malicious but nevertheless immunity may be necessary when balanced by the public advantage.
Be that as it may, it is not I think necessary to go beyond the Act itself in deciding this appeal."
40 His Honour's reasons were cited and adopted by Mansfield J in Hayes v Department of Social Security (1996) 43 ALD 783 [See also: Anne Cossins, Annotated Freedom of Information Act New South Wales, 1997, LBC Information Services, Sydney at pp 269-270].
The Public Interest
"(2) A document is not an exempt document by virtue of subclause (1):
41 Having found that the subject documents contain exempt matter within the FOI Act, I must further consider whether the public interest test applies which is contained in clause 4(2)(b) of Schedule 1 of the FOI Act. That subclause provides:
(a) if it merely consists of:
(i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or(ii) a document containing a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
(iii) a report on the degree of success achieved in any programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
(iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or
(v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and(b) if disclosure of the document would, on balance, be in the public interest."
42 Of the five kinds of documents listed there, only clause 4(2)(a)(v) applies. The subject documents here contain (in addition to the confidential details which may identify the identity of the complainant) a report on a law enforcement investigation that has already been disclosed to the person the subject of the investigation, the applicant. That is not in dispute.
43 Accordingly, the Tribunal must consider whether it would, on balance, be in the public interest to release that part of the documents which "merely" consists of the said report and whether that matter is exempt matter under the FOI Act. During the course of the hearing, it became apparent to me that the respondent and the investigating officer of the RSPCA had already disclosed to the applicant significant details of the complaint, the investigation and the results of that investigation conducted under the PCA Act. The allegation against him was considered by the RSPCA to be unfounded, frivolous and, possibly, vexatious.
44 The public interest test set out in this clause of the FOI Act is different in terms to public interest tests contained in other provisions of the FOI Act - see for example, the tests contained in clauses 5, 9 and 13 of Schedule 1. The test is specific to documents affecting law enforcement and public safety in clause 4. It creates a presumption that documents covered by this section are to be considered exempt unless the disclosure would be in the public interest. Such a presumption runs counter to other public interests tests contained in the Act which suggest that documents are not exempt unless their disclosure is considered to be in the public interest [see, generally the useful discussion of these public interest tests and relevant cases in Anne Cossins, Annotated Freedom of Information Act New South Wales, 1997, LBC Information Services, Sydney, at pp 228, and 43-51; see also the NSW Ombudsman's FOI Policies and Guidelines, second edition, 1997, at pages 55 to 58.]. In determining the public interest regard must be had to section 59A of the FOI Act which provides that certain matters are irrelevant, such as, the fact that the release of the documents may cause embarrassment to the Government.
45 In the circumstances, I consider that it would be in the public interest to disclose those parts of the subject documents to the applicant which do not disclose the identity of the complainant and which relate to only clause 4(2)(a)(v). In the present case, those parts relate to an unjustified criminal complaint against him and it serves his interests and therefore the public interest to view the details of such a complaint as are caught in the subject documents. Accordingly, those parts of the said documents do not contain exempt matter under clause 4 of the Schedule.
Duty to Consider Deletion of Exempt Material
47 Section 25(4) of the FOI Act provides:
46 In all FOI applications the decision-maker is required to consider whether access should be granted to exempt documents in a form by which exempt matter is deleted from the face of the documents (if that is practicable and that is what the applicant would wish) as required by section 25(4) of the FOI Act and as permitted by section 28(2)(c) of that Act.
" An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):
(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and
(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy."
48 In the present case, it is clearly practicable for the respondent to remove the confidential information from the face of the documents. Although this issue was not raised at the hearing of the matter, having heard the applicant, I am satisfied that the applicant would wish to be provided with a copy of the remaining details of the complaint set forth in the documents.The Tribunal's Powers in FOI Matters
49 Having found the documents contain exempt matter, there is a question whether the Tribunal can and should in the circumstances exercise the power in section 25(4) of the FOI Act. I did not have the benefit of receiving submissions on this point. However, the following matters are considered relevant.50 The FOI Act was substantially amended with effect from 6 October 1998 by the commencement of Schedule 5, Item 5.16 of the Administrative Decisions Legislation Amendment Act 1997(NSW) (Act No 77). It provided for the repeal of those provisions of the FOI Act which related to the review of FOI decisions by the District Court of New South Wales and created new appeal rights to this Tribunal.
51 Before it was repealed, section 55 of the FOI Act set out the powers of the District Court in relation to FOI appeals generally. A hearing de novo was provided for. The Court was specifically prevented by the legislature from determining that access to exempt documents was to be given. Section 55(5) then provided:
"This section does not operate so as to enable the District Court to determine that access to an exempt document is to be given."
52 The former section 55(5) is not reproduced in the amended FOI Act in that form. A related power to the former provision is found in section 58(2) of the Commonwealth FOI Act, where it is stated in plain terms that the Commonwealth Administrative Appeals Tribunal "does not have the power" to grant access to exempt documents under that Act. The position is different in Victoria where section 50(4) of the Victorian FOI Act provides that the Victorian Civil and Administrative Tribunal may release certain exempt documents "where the Tribunal is of the opinion that the public interest requires that access to the document should be granted" under that Act.
53 The Tribunal's powers in relation to FOI appeals are set out in sections 63 to 66 of the ADT Act and sections 52 to 58 of the FOI Act (as amended). Section 63(2) provides that for the purpose of determining an application for a review of as reviewable decision, the Tribunal may exercise all of the "functions" that are conferred or imposed by any relevant enactment on the administrator who made the decision. The word "function" is defined in section 4(1) of the ADT Act to include a power, authority or duty.
54 As the original decision-maker here possessed a discretion to release exempt documents under section 25(1) of the FOI Act, one would expect that the Tribunal would also possesses the same power, particularly having regard to the repeal of section 55(5) of the FOI Act. However, section 124(1) and (2) of the ADT Act provide:
" 124 Application of Act to exempt documents under Freedom of Information Act 1989
(1) General rule
Except as provided by this section, nothing in this Act requires or authorises any person or body to disclose any exempt document to another person or body.(2) Disclosure to person or body other than Tribunal
The provisions of the Freedom of Information Act 1989 continue to apply to the disclosure of exempt documents to any person or body other than to the Tribunal as if this Act had not been enacted."55 Section 124(5) sets out a number of definitions for the purposes of section 124, including:
""disclosure" of a document includes the following:
(a) the provision of copies of the document,(b) the granting of access to the document,
(c) the disclosure of the contents of the document.
"document" includes a part of a document."56 Section 124(3) goes on to deal with disclosure of exempt documents to the Tribunal itself and subsection (4) deals with cabinet documents.
57 I further note section 55 of the FOI Act provides:
" 55 Procedure for dealing with exempt matter
In determining a review application, the Tribunal:
(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative."
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and
58 These provisions seem to me to be capable of a number of differing constructions. However, I consider that section 124 of the ADT Act has no application once a decision is taken by the Tribunal under section 25(4) of the FOI Act to delete exempt matter in accordance with the provisions of that section. I say this because once exempt matter has been deleted from a document it cannot be characterised as an exempt document for the purposes of section 124 of the ADT Act. I note that this approach is consistent with that which has been adopted in the past by the District Court in the context of FOI review at a time when the former section 55(5) of the FOI Act precluded the Court from determining that access to an exempt document could be given- see, Wilson v Department of Education, unreported, Judge Smyth, 21 December 1989.59 Similar provisions to section 25(4) of the FOI Act may be found in sections 25 and 56(1) of the Victorian FOI Act and in section 22 of the Commonwealth FOI Act. In Day v Collector of Customs (1995) 57 FCR 176 at 180 (Einfeld J) the Federal Court held that the Commonwealth Administrative Appeals Tribunal had a duty under section 22 of the Commonwealth FOI Act to consider deletions in order to render any documents exempt and that the section:
"...constitutes an integral part of the scheme of the Act and is both an important adjunct to the right of access under section 11[section 6, NSW FOI Act], and a qualification to the various exemption provisions".
Costs
60 The Tribunal has power to award costs in all cases involving review of reviewable decisions if the Tribunal is satisfied that there are "special circumstances" warranting an award of costs - section 88 of the ADT Act. Section 56(3) of the FOI Act also gives the Tribunal limited powers to award costs in cases where, for example, in the case of a "deemed" refusal to make a determination under section 36(6) the agency later seeks further time within which to make the decision.61 No application was made by either party in these proceedings for costs and so I make no determination on the issue.
Decision and Orders
62 I make the following determination:(1) The reviewable decision is set aside;
(2) Those parts of the two documents which fall within the scope of applicant's FOI application and which identify the name, address or phone number of the informant are exempt matter within the meaning of section 6(1) of the FOI Act and clause 4(2)(a)(v) of Schedule 1 of the FOI Act;
(3) Pursuant to section 25(4) of the FOI Act, the exempt matter is to be deleted from the two documents and a copy of the documents with the exempt matter so deleted is to be provided to the applicant; and,
(4) The two documents that comprise the confidential exhibits in these proceedings be returned to respondent after the expiration of 28 days from today.
I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.
REGISTRAR / ASSOCIATE
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