Ward v Family Care Meeting Convenor & Ors

Ward v Courts Administration Authority
[2003] SADC 18
Civil
Judge David Smith
Introduction

In this matter Martin Gregory Ward appeals pursuant to s40 of the Freedom of Information Act 1991 (SA) (“the FOI Act”) against a determination made by the Courts Administration Authority (“the Authority”), to deny him access to certain documents prepared for a Family Care Meeting which was convened on the 7^th May 1998 under the provisions of the Children’s Protection Act 1993 (SA) (“the CP Act”) for securing the care and protection of four of his children.
Parameters for the conduct of the appeal
The appeal comes before this Court sitting in its Administrative and Disciplinary Division and is conducted pursuant to s42E of the District Court Act 1991 (SA) which provides:
“42e(1) The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)The Court, on an appeal -
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reason.”
In my view, that provision casts on the appellant an onus of satisfying the appeal court that there is cogent reason to depart from the decision appealed from. However, s48 of the FOI Act provides:
“In any proceedings concerning a determination made under this Act by an agency, the burden of establishing that the determination is justified lies on the agency.”
Though not defined, “any proceedings” would include appeals pursuant to s40.
So on the face of it there is tension, if not inconsistency, between s42E(3) of the District Court Act and s48 of the FOI Act. Statutory construction precepts, such as that the later enactment should take precedence over the earlier and that the specific should prevail over the general (ie generalia specialibus non derogant), do not resolve this conflict (see Statutory Interpretation in Australia 4^th Ed. by Pearce & Geddes paras 7.9 – 7.18). Both provisions are quite specific. As to whether the later s42E(3) of the District Court Act, which came into operation on 1^st June 2000, takes precedence over the earlier s48 of the FOI Act, which came into operation on 1^stJanuary 1992, the following comments of Gaudron J at 204 in Saraswati v R (1991) 100 ALR 193 are applicable:
“It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.”
(the italics are mine)
In my view, the provisions can live together. The tension between them is more apparent than real. An examination of the operation of the key provisions of the FOI Act demonstrates the way in which these provisions can operate together.
Section 12 of the FOI Act confers a legally enforceable right of access to documents, subject to a number of statutory exemptions and exclusions which are found by and large in subsections (a) (b) (c) (d) and (e) of s20. Section 20 provides as follows:
“20. (1)    An agency may refuse access to a document –
                  (a)     if it is an exempt document; or
(b)if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge; or
(c)if it is a document that is usually and currently available for purchase; or
(d)if it is a document that
(i)was not created or collated by the agency itself; and
(ii)genuinely forms part of library material held by the agency; or
(e)if it is a document that came into existence before 1 January 1987.
(2)    Subsection (1)(e) does not permit an agency to refuse access to -
(a)a document that contains information concerning the personal affairs of the applicant; or
(b)a document that is reasonably necessary to enable some other document (being a document to which the agency has given access under this Act) to be understood; or
(c)a document if 20 years have passed since the end of the calendar year in which the document came into existence.
(3)    Subject to subsection (4), an agency must refuse access to a restricted document that is the subject of a Ministerial certificate.
(4)    If -
(a)it is practicable to give access to a copy of a document from which the exempt matter has been deleted; and
(b)it appears to the relevant agency (either 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, the agency must not refuse to give access to the document to that limited extent (even though the exempt document may be a restricted document subject to a Ministerial certificate).”
(the italics are mine)
First of all the agency has a statutory discretion. The exercise of the discretion is controlled by not only the parameters spelled out in s20 itself, but also by the scope, intent and the purpose of the legislation (see O’Sullivan v Farrer (1989) 168 CLR 210 at 216). It can be seen that the legislature has used the discretionary word may in connection with refusing access to documents generally, but the mandatory or imperative word must in connection with refusing access to “restricted documents”. Such a scheme indicates that in respect of documents other than “restricted documents” the legislature intended that, though a document may be, for instance, “an exempt document”, it does not follow that access must be refused. The agency may refuse access to such documents. So in appropriate circumstances access can be given to documents which are correctly characterised as exempt or excluded within the terms of s20. On the other hand, a necessary precondition to any refusal is that the document is properly exempt or excluded. In Moore v The Registrar of the Medical Board of South Australia (2001) 2001 LSJS 133, notwithstanding that the transcript of the hearing before the Board was properly characterised as an “exempt document”, this Court held that, in the particular circumstances of that case, the Registrar ought to have allowed access. So where there is an appeal against a refusal, the agency must at the threshold be able to justify the determination by establishing the precondition of, for instance, exempt status. In the case of other than restricted documents, that will not necessarily answer the question of whether the refusal will stand.
With that background in mind, I turn to the question of who bears what onus.
An appellant, in order to succeed, bears an overall or general onus of establishing that there is cogent reason to depart from the agency’s decision to refuse access (s42E of District Court Act). The agency bears the specific onus of establishing that the determination is justified (s48 of FOI Act). If the agency fails to justify the determination then almost inevitably the appellant will succeed. If on the other hand the agency does justify the determination then in the case of other than “restricted documents” that will not necessarily be the end of the matter. That may still leave alive between the parties the issue, on which the appellant bears the overall onus, namely whether there is cogent reason to depart from the decision.
In the circumstances of this case, the justification of the agency’s determination may well be the end of the matter because once it is established that the withheld information falls within s58 of the CP Act then disclosing it, in the exercise of the residual discretion, may amount to the commission of an offence. In such circumstances it is inconceivable that the appellant could establish any cogent reason to depart from the agency’s determination.
This notion of multiple onuses is not uncommon (see Purkess v Crittenden (1965) 114 CLR 164 at 168).
I now turn, first of all, to the background circumstances.
Background circumstances
The appellant represented himself and was ably assisted by his step-mother, Ms Pam Ward. The respondents were represented by crown counsel, Mr D. Mackintosh.
There is no material conflict about the following factual background, which I have drawn from the affidavits of John Neil Wright and Elizabeth Mary Flynn, both of which were sworn on the 18^th September 2001.
The appellant is the father of the four children, who are the focus of these proceedings. His wife, Colleen Highfold, is now deceased. For many years the family lived at Koonibba on the far-west coast of South Australia. There were 10 children of the marriage, one of whom died tragically in a house fire at Koonibba in 1984. This matter relates to the following four children:
·Martina, aged 15, born 6 March 1987;
·Monique Elizabeth, aged 14, born 26 January 1989;
·Myles Furla, aged 12, born 2 October 1990; and
·Martin Myal, aged 11, born 11 January 1992.
In the 1990’s the family moved to Henley Beach. Three of the above named children were enrolled at the Fulham Gardens Primary School. Apparently, all was not well between the appellant and his late wife and whilst the family lived at 440 Seaview Road, Henley Beach, Colleen Highfold left home from time to time. At the time of the convening of the Family Care Meeting on the 7^th May 1998, the appellant cared for the children alone at the Henley Beach home.
The family and in particular the children, to use a neutral bureaucratic term were “known” to various welfare organizations.
With that brief background in mind, I now turn to the Family Care Meeting which was convened as I said under the provisions of the Children’s Protection Act. The objects of the said Act are set out in sub-paragraphs 1 and 2 of s3 in the following terms:
“(1) The object of this Act is to provide for the care and protection of children and to do so in a manner that maximises a child’s opportunity to grow up in a safe and stable environment and to reach his or her full potential.
(2) The administration of this Act is to be founded on the principles that the primary responsibility for a child’s care and protection lies with the child’s family and that a high priority should therefore be accorded to supporting and assisting the family to carry out that responsibility.”
Part 5 Division 1 deals with Family Care Meetings. Pursuant to s27(1) if the Minister “is of the opinion that a child is at risk and that arrangements should be made to secure the child’s care and protection, the Minister should cause a Family Care Meeting to be convened in respect of the child” (s27(1) of CP Act). The expressed purpose of the meeting is to provide an opportunity for the family to make suitable arrangements in conjunction with a court official, called the Care and Protection Coordinator, for the care and protection of a child before the Minister makes the more drastic application to the Youth Court for either custody orders or guardianship in respect of that child (see ss 27, 28 and 29 of the CP Act).
In this case, the Minister caused a Family Care Meeting to be convened in respect of the said four children. Elizabeth Mary Flynn, who was employed in the Care and Protection Unit of the Authority, was the Care and Protection Coordinator, inter alia, for the purposes of the meeting. In her capacity as the Coordinator, she obtained the documents which make up the Authority’s file which is marked “CPREG-98-73 (74-75-76)”. Ms Flynn convened and conducted the Family Care Meeting in respect of the four Highfold children on the 7^th May 1998 (see affidavit of Elizabeth Mary Flynn sworn herein on the 18^th September 2001).
The appellant and some of his children attended the meeting as did a number of other family members and “welfare” officers. There was no outcome.
As at the time of hearing this appeal, the appellant’s children were not in his custody. As I understand it, the children are now in the care of the wider family members.
The Freedom of Information Act applications
On about the 18^th June 1998 the Authority received an application made pursuant to s12 of the FOI Act in the following terms:
“re: file no CPREG-98-73 (74 75 –76)
I request under the Freedom of Information Act copies of the documents, records and paper work concerning the application and processing also final outcomes and reccomendation (sic) (if any of the like) of a Family Care Meeting 7/5/98
Yours Faithfully
MG Ward”
In response the Authority determined that the appellant should not be given access to the documents. It refused access pursuant to s20 on the basis that the documents were exempt documents by virtue of s4 and clause 12 of Schedule 1 of the FOI Act because disclosure would constitute an offence against s58 of the CP Act which provides as follows:
“58.(1)    A person engaged in the administration of this Act who, in the course of that administration, obtains personal information relating to a child, a child’s guardians or other family members or any person alleged to have abused, neglected or threatened a child, must not divulge that information.
Maximum penalty:      $10 000.
(2) A person who attends a family conference (not being the child, a guardian of the child or any other member of the child’s family) must not divulge any personal information obtained at the conference relating to any of those persons.
Maximum penalty:      $10 000.
(3) This section does not prevent -
(a)a person from divulging information if authorised or required to do so by law; or
(b)a person from divulging statistical or other data that could not reasonably be expected to lead to the identification of any person to whom it relates; or
(c)a person engaged in the administration of this Act from divulging information if authorised or required to do so by his or her employer.”
On the 16^th July 1998 the appellant made application for an internal review of the determination pursuant to s38 of the FOI Act. The internal review confirmed the original determination.
On about the 21^st September 1998 the appellant sought an external review of the Authority’s determination pursuant to s39 of the FOI Act. As a result of the external review which was conducted by the Ombudsman, the Authority revised its original determination, and on the 21^st October 1999, granted the appellant access to a number of documents and portions of documents from the file CPREG-98-73 (74-75-76). Copies of the documents were provided to the appellant.
Still unsatisfied, the appellant, by notice dated the 13^th December 2000, appealed to this Court pursuant to s40 of the FOI Act.
Conduct of Appeal
On the appeal I received two detailed affidavits - one from John Noel Wright of the Authority sworn on the 18^th September 2001 and the other from Elizabeth Mary Flynn of the Authority which was also sworn also on the 18^th September 2001. The subject file documents were described in a schedule and numbered 1-28 (see Exhibit JNW6 to affidavit of Wright). Following the revised determination of the 21^st October 1999, the Authority provided the appellant with complete copies of the documents which it accepted were not exempt, namely documents 1,2, 5, 7, 11, 12, 14, 16, 22, 23, 23.1 and 27 (see Exhibit JNW7), and further, provided the appellant with copies of documents from which exempt matter had been deleted namely documents 3, 4, 6, 15, 17, 18, 19, 20, 21, 23.2, 23.3, 26, 28.1, 28.2, 28.3 and 28.4 (see Exhibit JNW8). This process of deletion is acknowledged in the FOI Act as a method of giving access (see s20(4)).
Finally, I was provided with a sealed envelope containing:
·copies of the documents which were withheld from the appellant, namely documents numbered 8, 9, 10, 13, 24 and 25; and
·copies of the documents from which allegedly exempt matter had been deleted, but in which the exempt matter was included but highlighted (see Exhibit JNW8).
Also enclosed in this envelope was correspondence between the Ombudsman and the Authority which, inter alia, debated the issue of access and in places disclosed information in purportedly “exempt” documents. This is an appropriate method of dealing with the issue despite the fact that, whilst the appellant knows the nature of the document by reason of its description he is deprived of the ability to argue about it by reference to its actual contents (see Ipex Information Technology Group Pty Ltd v Department of Information Technology Services SA (1997) 192 LSJS 54 at 58; Bray v Workers Rehabilitation & Compensation Corporation (1994) 62 SASR 218 at 224). This approach is a time-honoured way of dealing with subpoenaed documents in respect of which there are claims of various forms of privilege.
I now turn to the appeal itself.
Notice of appeal – Defects - Contentions
The notice reads as follows:
“Between
Martin Gregory Ward  Appellant(s)
Family Care Meeting; Convenor, Youth Court   1^st Respondent
Courts Administration Authority   2^nd Respondent
..........................................................................................................................................
NOTICE OF APPEAL
I, Martin Gregory Ward of 440 Seaview Road, Henley Beach, SA 5022 HEREBY APPEAL against the determination of the Ombudsman made on 16/10/2000 under Section 40 of the Freedom of Information Act 1991.
1.    The decision being appealed (a brief statement):
That exempted documents be disclosed or discovered. That deletions from documents be revealed so that the documents can be understood if people do not want their named revealed it is not absolutely necessary. The names may be my own childrens and have they be asked to waive rights of non-disclosure?
2.    The grounds of appeal are:
1)No reasons are given for having a Family Care Meeting without “reasons” appealing even understanding is impossible and good clear significant grounds for appeal.
2)Has a request been made to those who made allegations of abuse that they waive right of non-disclosure
3)Have my children been asked if they want to see or have a father to care for them?
4)Without transparent and accountable Social Work mistakes are likely and unjust results allowed to prevail and so compromise childrens development.
5)No consideration of the difficulties the family had at the time. Nor at the present or of the future.
3.    The orders sought by the appellant:
Full disclosure and explanation contact with the children leading to Residence.
Further interaction with welfare of FAYS to be done through an Independent body.
Dated the 13^th day of December 2000.”
There are a number of inconsequential procedural defects in the appeal notice. First of all, the notice of appeal is directed to both the Family Care Meeting Convenor – Youth Court and to the Courts Administration Authority. The correct and only respondent is the second named Courts Administration Authority and I will proceed on that basis. Secondly, the appeal is directed to “The Determination of the Ombudsman made on the 16^th October 2000” whereas the focus of the appeal should be the revised determination of the Authority dated the 21^st October 1999 whereby the Authority provided full access to some documents and partial access to others in file CPREG-98-73 (74-75-76). I will proceed on that basis.

I now turn to the specific grounds of appeal in order to identify the legally acceptable parts of the appellant’s complaint.
Ground 1 is not a valid ground. The appeal must necessarily focus upon why the determination of the Authority should be interfered with. This ground does not do that. In any event, I would have thought that the reasons for the Family Care Meeting were more than adequately spelled out in document 22 – “Referral Report for a Family Care Meeting”, a copy of which would appear to have been provided to the appellant before or at the time of the meeting, but was certainly provided to him following the revised determination of the 21^st October 1999. Ground 2 again is not a valid ground of appeal. There is no obligation in the CP Act which facilitates or obligates the Authority to seek a waiver of otherwise exempt matter. Ground 3 raises issues of access to the children, custody and guardianship. As I indicated to the appellant in the course of the hearing, this Court has no jurisdiction to determine such issues. Ground 4 raises arguably valid matters such as accountability, public interest and the right to know, all of which are considerations which can be relevant to the exercise of the statutory discretion by the Authority and to whether or not there is cogent reason to depart from the Authorities decision. Ground 5 is a revisiting of Family Law considerations or as in the case of ground 1 a criticism of ministerial action. In either case, it is not a valid ground of appeal.
I will treat this appeal as a contention that the undisclosed parts of the said file are not properly exempt and therefore the determination of the Authority cannot be justified. Further, in the alternative I take the appellant to be contending that if the undisclosed parts of the file are properly exempt then nonetheless cogent reason exists to depart from the determination to refuse access.
The respondent Authority contends that it properly refused access to the undisclosed parts of the file on the basis that the documents or portions thereof were exempt by virtue of s4 and clause 12(1) of Schedule 1 of the FOI Act because further disclosure of the file would constitute an offence against s58 of the CP Act. Further, the Authority contends that there can be no cogent reason for this Court to depart from its determination of the 21^st October 1999.
Resolution of appeal
The issues for resolution on this appeal are:
·whether the disclosure of the withheld information would constitute an offence against s58 of the CP Act, and if so;
·whether there are nonetheless cogent reasons for disclosing it to the appellant.
I turn to the first question. Is the withheld material, namely the material deleted from the documents in Exhibit JNW8 and the material in documents 8, 9, 10, 13, 24 and 25 in the sealed envelope “personal information relating to a child, a child’s guardians or other family members or any person alleged to have abused, neglected or threatened a child” within the meaning of s58(1) of the CP Act?
The expression “personal information” is not defined in the CP Act. Those words should be given their plain, ordinary and natural meaning as there is no indication to the contrary in the enactment (see Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 per Dixon J at 647; Statutory Interpretation in Australia 4^th Ed. Pearce & Geddes para 2.10). Words take their meaning from the context in which they appear, (see Pearce & Geddes (supra) at para 4.13), and it is evident that the words are used in a section whose obvious policy or intent is to preserve the confidentiality of information gathered in the emotive and sensitive arena of family relationships. Counsel Mr Mackintosh urged upon me an interpretation which is at least as broad as that given to the expression “personal affairs” in the Freedom of Information Act 1982 (Cth) by Lockhart J in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 436, who said that the words mean:
“... information which concerns or affects the person as an individual whether it is known to other persons or not ...”
The word “personal” is defined in the Shorter Oxford English Dictionary (1993 Ed) as:
“... pertaining to, concerning or affecting a person as an individual (rather than as a group or of the public, or in a professional capacity), individual private, one’s own ...”
The word “information” is defined in the same dictionary as:
“... communication of the knowledge of some fact or occurrence, knowledge or facts communicated about a particular subject, event, ... intelligence, news, an item of news, an account ...”
I consider that the phrase “personal information” includes:
·information, news, intelligence, opinions, recommendations;
·pertaining to, concerning or affecting a person or having the capacity to do so.
For example, information which discloses or tends to disclose the identity, address or location of a person or from which such particulars could be deduced will be personal information about that person. The fact that the information may be known to other persons, or the person seeking it cannot affect its character.
The personal information must relate to:
·a child;
·a child’s guardians;
·or other family members;
·or any person alleged to have abused, neglected or threatened a child.
Section 6 of the CP Act defines “child”, “guardian” and “family”. There is no dispute in this case that the four children are Aboriginal children within the meaning of the CP Act and that the persons referred to in the documents are the subject children, the parents and family members.
I now turn to whether or not the withheld matter is such personal information.
Counsel for the Authority provided the Court with a schedule which described the nature of, but not the content of, the withheld information.
I have perused the documents in the sealed envelope with considerable assistance of the schedule, and it is clear that the material in the withheld documents and the excluded portions of the disclosed documents is “... personal information relating to a child, a child’s guardians or other family members ...” within the meaning of the CP Act.
I now turn to whether the said information has been obtained by a person engaged in the administration of the CP Act in the course of that administration. Elizabeth Mary Flynn at the material time was an employee of the State Courts Administration Council. The Courts Administration Authority (“the Authority”) is the collective name for the State Courts Administration Council, the State Courts Administrator and the staff of the Council (see s5 Courts Administration Authority Act 1993). Ms Flynn, between August 1995 and June 2001 was a Care and Protection Coordinator (see s6 of the CP Act), in the Care and Protection Unit of the Authority (see para 1 of the affidavit of Ms Flynn). This uncontested affidavit evidence of Ms Flynn satisfies me that the information sought is contained in the documents obtained by her in her capacity as Care and Protection Coordinator (see s6 and Division 1 of Part IV of the CP Act), and further, as Ms Flynn herself deposed “... the information and documents contained in those files were obtained by me in my capacity as the Care and Protection Coordinator assigned to convene and conduct the Family Care Meeting that was held on the 7^th May 1998 pursuant to the Act” (see para 5 of affidavit of Elizabeth May Flynn sworn 18^th September 2001).
I now turn finally to what constitutes divulgence of the information.
The word “divulgence” is not defined in the CP Act. “Divulge” is defined by the Shorter Oxford English Dictionary (1993 Edition) as:
“... publish, propagate, make publicly known, make a public announcement about, declare or tell openly something private or secret, disclose, reveal, make common, impart generally ...”
The issue raised here is whether “to divulge” necessarily means to disclose information which is previously unknown to the recipient. Such a qualification does not appeal to me as being what Parliament must have intended in respect of the CP Act. In the Federal Court case of Lovell v Adjuk (1991) 28 FCR 565, Lee J considered the meaning of the word “divulge” in the context of the Taxation Administration Act, 1953 (Cth) and in particular in the context of s8XB which provided, inter alia, that it was an offence to “divulge or communicate to another person any taxation information relating to a third person”. At p572 Lee J said:
“The case presented at the preliminary hearing was not that the applicant had divulged information as to the taxpayer’s affairs which had been disclosed to the applicant by the revelation of the meaning of the coded data in breach of a taxation secrecy provision. The simple case against the applicant was that the document distributed by the applicant contained coded data which if decoded would disclose information as to the affairs of the taxpayer in the possession of the Commissioner.
Counsel for the respondent presented his argument most forcefully by way of an analogy, to wit the delivery to a foreign power of top secret and coded data in respect of a matter of national security. Counsel argued that a lack of knowledge of the actual contents or the meaning of terms used in such a document on the part of the person receiving it would not mean that the document or what was contained in it had not been divulged.
But the proposition contained in that analogy draws upon concepts more pertinent to conduct involving a breach of s 70 of the Crimes Act or an offence of treason and it really begs the question to be answered.
The nature of the relevant question in the present case is to be identified from the content and context of the pertinent statutory provisions. It is apparent that s 8XB is intended to provide a second line of protection for sensitive material in the possession of the Commissioner of Taxation and is concerned with the further communication or divulging of information that has been unlawfully obtained or disclosed to another person. The mere delivery of a document by that person to a person unable to extract any information from the document would not meet that requirement.”
(the italics are mine)
The content, context and objectives of the CP Act are the care and protection of children (see s3).
Further, under the heading “Principles to be observed in dealing with children” s4 provides (inter alia):
“(1) In any exercise of powers under this Act in relation to a child –
(a) the safety of the child is to be the paramount consideration; and
(b) the powers must always be exercised in the best interests of the child.”
In my view, the plain and ordinary meaning of “divulge” is to disclose. It does not necessarily convey the imparting of that which is previously unknown. Further, given the objectives and principles underlying the CP Act, I am of the view that the word “divulge” should be construed so as to give paramountcy to protecting the child’s interests. Its meaning should not be confined to the disclosure of otherwise unknown or secret information. It should include that. There are difficulties in the qualified construction. For instance, whilst some information might be known to an applicant he or she may not be aware that it has been obtained by the agency. So in accessing the information the applicant will know that the agency has that information. The disclosure of the fact of that holding would amount to divulgence. Also, such a narrow interpretation would require the agency to indulge in what I would regard as an intolerable task of speculating about what the applicant may or may not know. In the end, the more expansive meaning is consistent with ensuring the protection of the child and so consistent with the objectives of the Act.
In my view, the decisions of Re Lapham and Office of Community Advocate and Another (1998) 53 ALD 485 and King v SA Psychological Board (1998) S6621 per Bleby J unreported judgment Supreme Court of South Australia delivered 9^th April 1998 do not persuade me to the contrary. I am not bound by Lapham and if necessary I would simply decline to follow it. The so-called absurdity of the agency’s position highlighted in Lapham could be addressed in the context of this case by the Authority doing what the Ombudsman in part suggested, namely determining to give access to some documents from the file which ordinarily would have come to the applicant’s attention in the normal course of convening and conducting the meeting. That disclosure would probably be covered by the exception in s58(3)(a) and or s58(3)(c). So too the Authority could pursuant to s58(3)(c) authorise or require the Care and Protection Coordinator to disclose to the applicant documents on the file which, for instance, emanated from the applicant. The case of King is distinguishable on the basis that the meaning of disclose was construed against the background of an Act whose objectives are wholly different to that of the CP Act.
So I conclude that the disclosure of the withheld information would constitute an offence against s58 of the CP Act. Accordingly, the Authority has established that its determination of the 21^st October 1999 was justified (see s48 of the FOI Act).
The only issue remaining is whether there is cogent reason nonetheless to depart from the determination of the Authority. The matters raised in Ground 4 of the notice of appeal are relevant here. In the usual case there would be a need to balance such considerations as accountability and the public interest in a father’s right to know of views held by a government agency as to his adequacy as the carer, against the competing public interest of ensuring the care and protection of children and in particular facilitating the collection of and confidentiality of information obtained by government agency from within and without the family. However, in the circumstances of this case, the discretion entailed in that balancing exercise is overwhelmed by the fact that the disclosure constitutes an offence against an Act. So as foreshadowed earlier in this judgment, once it is clear that the disclosure or divulgence would constitute an offence against an Act then it is inconceivable that there could be any justification for departing from such a decision. This is not one of those inconceivable cases. There is in this case no cogent reason to depart from the determination of the 21^st October 1999.
Final orders
I conclude therefore that the Authority has justified the determination of the 21^st October 1999 pursuant to s48 of the FOI Act. Further, I find pursuant to s42E of the District Court Act that there is no cogent reason for this Court to depart from the said determination.
Therefore pursuant to s42F of the District Court Act I affirm the Authority’s decision of the 21^st October 1999.
I will hear the partes as to costs, though I am mindful that counsel for the respondent did indicate that in the event of the appeal failing, the respondent would not be seeking costs.

[2003] SADC 18

21 February 2003