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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Freedom of Information - the Ombudsman - draft report concerning complaint of stopping of pensions payable to Greek pensioners - exemption of report from disclosure.Freedom of Information Act 1982, ss. 4, 22 and 36
Ombudsman Act 1976, ss. 8, 12, 15, 35
Administrative Decisions (Judicial Review) Act 1977, paras. 5(1)(e) and (f) and 5(2)(a) and (b)
Administrative Law - Freedom of information - Right of access to Government documents - Draft report prepared by Ombudsman following receipt of complaint - Whether Freedom of Information Act applies to documents of Ombudsman - Whether report prepared for purposes of "deliberative processes" - Whether disclosure contrary to public interest - Ombudsman Act 1976 (Cth), ss 8, 12, 35 - Freedom of Information Act 1982 (Cth), s. 36(1). Held: (1) Documents prepared by the Ombudsman, including draft reports, are not excluded from the operation of the Freedom of Information Act 1982 (Cth).
Kavvadias v. Commonwealth Ombudsman [1984] FCA 55; (1984) 1 F.C.R. 80, News Corporation Ltd v. National Companies and Securities Commission (No. 4) (1984) 1 F.C.R . 64, applied.
(2) To the extent that the draft report, prepared by the Ombudsman following a complaint received by him, made criticisms of the Department of Social Security or informed the Department of criticisms made of it by others and discussed and came to conclusions concerning the validity of those criticisms, the draft report was doing so for the deliberative processes involved in the functions of the Department, within the meaning of s. 36(1)(a).
Harris v. Australian Broadcasting Corporation (No. 1) [1983] FCA 242; (1983) 50 A.L.R. 551, considered.
(3) Disclosure of the draft report, which was prepared for the principal purpose of enabling the Ombudsman to discharge his obligation under s. 8(5)(a) of the Ombudsman Act 1976 (Cth), would be contrary to the public interest.
Harris v. Australian Broadcasting Corporation (No. 1) [1983] FCA 242; (1983) 50 A.L.R. 551, followed.
HEARING
Sydney, 1984, April 2, 3; July 9. 9:7:1984Application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review of the respondent's decision refusing the applicant's request for access to a draft report prepared by the respondent.
P. Bayne, for the applicant.
D. Buchanan, for the respondent.
Cur. adv. vult.Solicitor for the applicant: P. Molan.
Solicitor for the respondent: M. Lynch.
F.P.C.
ORDER
1. The decision of the Ombudsman made on 5 May 1983 under the Freedom of Information Act 1982 refusing to disclose to the applicant the draft report of the Ombudsman dated in or about the month of March 1983 in relation to complaints concerning the conduct of the Department of Social Security in stopping payment of pensions to a number of Greek pensioners be set aside.2. The Ombudsman give the applicant access to so much of the draft report referred to in Order 1 as consists of purely factual material in the sense of that expression as used in sub-sec. 36(5) of the Freedom of Information Act 1982.
3. There be general liberty to apply to either party on 7 days' notice.
4. By consent there be no order as to costs. Orders reserved.
DECISION
This is an application for the judicial review of a decision of the Commonwealth Ombudsman made on 5 May 1983. The decision denied to the applicant access to a draft report prepared by the Ombudsman consequent upon a complaint made by a Dr. Lucire concerning certain actions of the Department of Social Security. The complaint arose out of what became widely known in the community as the Greek pensions conspiracy case. The decision of 5 May 1983 was given in a letter of that date to a Mr. Cashman who is the director of an organisation known as the Public Interest Advocacy Centre. The Centre is a legal aid centre and is staffed by solicitors. One of these, Mr. Molan, is the solicitor on the record for the applicant. The request for access to the draft report was made pursuant to s.11 of the Freedom of Information Act 1982. The Ombudsman refused access on a number of grounds which included reliance upon s.36 and s. 38 of the Act.On 26 May 1983 a solicitor in the employ of the Public Interest Advocacy Centre notified the Registrar of the Administrative Appeals Tribunal that Dr. Lucire intended to appeal to the Tribunal against the decision of the Ombudsman to refuse access to the report. The appeal came before the Tribunal which dismissed the appeal on 2 November 1983. There were two appellants to the Tribunal, Dr. Lucire and one Dimitrious Kavvadias who is the applicant in the present proceedings. In its reasons for decision the Tribunal decided that the draft report was exempt from production by reason of the operation of s. 38 of the Freedom of Information Act. It did not find it necessary to deal with s. 36 of that Act upon which reliance had also been placed by the Ombudsman.
From this decision the applicant, Dimitrious Kavvadias, (not Dr. Lucire) appealed to this Court. The appeal was allowed (Kavvadias v. Commonwealth Ombudsman, unreported, 23 March 1984 (No. G429 of 1983)). The decision of the Tribunal was set aside and the matter was remitted to the Tribunal for further hearing, the intention being, no doubt, that it would consider other grounds of exemption relied upon by the Ombudsman including that based on s. 36 of the Freedom of Information Act. For reasons which follow the Tribunal has not embarked upon the further hearing of the matter.
Prior to the hearing of the appeal from the Tribunal to the Full Court of this Court, the applicant commenced these proceedings. The purpose of his advisers in taking that course was to have formulated for the Full Court, which heard the appeal from the Tribunal, a question which would enable the Full Court also to decide the issues arising between the parties under s. 36 of the Freedom of Information Act (see sub-sec. 25(6) of the Federal Court of Australia Act 1976). The application for judicial review was made out of time but, for reasons given in my judgment of 21 December 1983, I acceded to an application by the applicant to extend the time. Those reasons were substantially based on the utility of the course proposed by the applicant in endeavouring to have the Full Court decide the questions arising under s. 36, as well as s. 38, of the Freedom of Information Act.
In order that a question or questions might usefully be formulated, it was necessary that there should be found or agreed upon a number of facts. Directions hearings were held with a view to this being done and a draft statement of agreed facts was prepared. I nevertheless took the view that the facts were at that time in such an uncertain state that it was not desirable to formulate any question for a Full Court and I declined to do so.
The application for judicial review remained pending during the hearing of the appeal to the Full Court from the decision of the Tribunal. If the appeal had been dismissed, there would have been no need for the application to be dealt with. After the decision in the appeal it was restored to the list and I proceeded to hear it.
I pause to say at this point that I did so with some reluctance. The original purpose of the application for judicial review had been to raise for consideration by the Full Court a question or questions concerning the operation, if any, to be accorded s. 36 of the Freedom of Information Act in the circumstances of this case. That object had failed. The Full Court had ordered that the matter be remitted to the Tribunal for further hearing. The Tribunal was seized of the matter and was able to hear and determine it fully (see s. 43 of the Administrative Appeals Tribunal Act 1975); the Tribunal's powers were not limited in the way that the powers of this Court are in an application for judicial review. Nevertheless, the applicant, through his counsel, insisted on proceeding with the application and is prepared, as a condition of it being disposed of, to withdraw the appeal to the Tribunal. Counsel for the Ombudsman did not eventually oppose this course and gave up reliance both upon s. 45 of the Freedom of Information Act and upon a discretionary argument based upon the applicant having an alternative remedy before the Tribunal.
During the course of the argument counsel for the applicant announced that he wished to make an application to join Dr. Lucire as a party to it. That application was refused.
The evidence which was tendered before me was entirely documentary. It consisted of an agreed statement of facts (which was materially different from that mentioned earlier), the transcript record of proceedings before the Full Court of this Court in matter No. G429 of 1983 (in which is to be found a copy of the letter written by the Ombudsman to Mr. Cashman on 5 May 1983 earlier referred to) and a copy of the draft report which is in contest. The latter document was received as a confidential exhibit. Publication of its contents, apart from the table of contents to it, was restricted to the Court and to counsel. Not even the applicant's instructing solicitor was permitted access to it. The report was not the subject of detailed consideration during the argument although some reference to it was made. It is lengthy and complex. It comprises some 170 paragraphs spanning 73 pages and a further 42 pages of schedules.
The essential facts are contained in the agreed statement of facts and in some of the documents in the transcript record of proceedings before the Full Court. The applicant is 61 years of age. He is married and resides in Greece, although he did, for a period, live in Australia. In early 1977, whilst living here he was granted an invalid pension commencing on or about 9 December 1976. This followed upon an examination by a Commonwealth medical officer. For personal reasons, including medical advice from his doctor, the applicant returned to Greece on or about 27 February 1978. Before leaving Australia he was required to undergo a further medical examination. In April 1978 he received a letter from the Department of Social Security that his pension was being stopped whilst his continuing eligibility to receive the pension was being reviewed. On 4 May 1978, at the request of the Department, he attended at the Australian Embassy in Athens for a medical examination by a Dr. Ivil. Later in May 1978 the applicant received a letter dated 16 May 1978 from the Department informing him that the review had been completed and that his pension was being cancelled because he was not considered to be "85 per cent permanently incapacitated for work.
The applicant appealed against this decision to a Social Security Appeals Tribunal. In order to prosecute his appeal he returned to Australia in January 1979. He underwent further medical examinations and, on 25 March 1980, was advised that his invalid pension had been regranted commencing on 27 March 1980. He did not receive any payment for the periods when the pension was suspended but did receive some payments in lieu thereof to the detail of which it is unnecessary to refer.
Early in 1979 the applicant "instructed" Dr. Lucire, who is a psychiatrist, to lodge a complaint with the Ombudsman and to make representations to a number of other persons on his behalf concerning the failure of the Department to pay compensation, arrears of pension and air fares and other expenses incurred because of his return to Australia, in order to have his pension restored. It would appear that Dr. Lucire was instructed to make similar complaints on behalf of a number of other pensioners of Greek origin who had had their pensions cancelled.
Between 3 May 1979 and 15 June 1983 Ms. Shaw was employed as an investigation officer in the Canberra Office of the Ombudsman. She was, under the direction of the Ombudsman, responsible for the conduct of an investigation into complaints made to the Ombudsman on behalf of the pensioners to whom I have referred, including the applicant. As part of her investigative duties, Ms. Shaw obtained information from the Department of Social Security, the Department of Health and the Commonwealth Police Force (now the Australian Federal Police). The information was sought by letter, personal interview and telephone call. Additionally, Ms. Shaw obtained certain information from the Ombudsman himself which he in turn had obtained as a result of investigations he had made whilst in Greece. Ms. Shaw also had available the information which Dr. Lucire provided to the Ombudsman concerning the complaints she had made.
In November 1982, Ms. Shaw began the preparation of a draft report which outlined the facts of the matter as she understood them from the information she had obtained and drew a number of conclusions which she had tentatively reached on the basis of that information. In March 1983 the draft report was completed and was given to the Ombudsman. It was shortly afterwards forwarded to the Director-General of the Department of Social Security for the Department's comments. All the information which was used in the preparation of the draft report was obtained by Ms. Shaw pursuant to the provisions of the Ombudsman Act 1976.
Dr. Lucire and the applicant wish to obtain access to the draft report in
order:-
"(a) to comment on the report in order to assist the Ombudsman in
preparing his final report;
(b) to correct any factual inaccuracies which may be in the report;the Ombudsman's investigation;
(c) to obtain information on the progress and preliminary outcome of
(d) to provide comments on medical matters in order to assist the
Ombudsman in preparing his final report; and
(e) to ensure that the complaint has been fully investigated and to ensure that the matter has been brought up to date."
In para. 36 of the agreed statement of facts it is stated that the Department of Social Security has in its possession and has made available to Dr. Lucire under the provisions of the Freedom of Information Act, documents which contain factually inaccurate information. Although that statement appears in the agreed statement of facts, I am not sure whether it is a statement with which both the Ombudsman and the Department agree or whether it is agreed only that Dr. Lucire asserts that to be the case. Nothing turns on which of these alternatives is correct.
Paragraph 71 of the statement of facts is as follows:-course which the investigation had taken in order to determine what subsequent courses of action should be pursued including the possibility of discussions with departmental officials;
71. The draft report served the following purposes:-
(1) It enabled the Ombudsman to examine the available evidence and the
(2) The draft report afforded the Ombudsman an opportunity to consult
with his Deputy Ombudsman, in particular Mr. Christopher
Hunt, who by
this time had succeeded Deputy Ombudsman Alan Kerr in assuming overall
responsibility for the complaint,
and Ms. Shaw, in order to decide
what conclusions should be tentatively expressed in the draft report in
the light of the
criteria specified in section 15 of the Act;
(3) By consideration of the draft report and discussions within his
office arising out of that consideration, the Ombudsman
was able to
formulate possible recommendations to be made to the Department
arising out of the making of a report;
(4) The draft report sets out for the Ombudsman's consideration, opinions that were expressly or impliedly critical of the Department and various officers of the Commonwealth and other persons and enabled him to reach his own tentative opinions expressly or impliedly critical of the Department, officials and other persons."
Again, I am uncertain as to the agreement which there is concerning the matters stated in this paragraph. It would seem that what is agreed upon is that the Ombudsman asserts the matters which are mentioned to be the purposes or reasons for the preparation of the draft report. Nothing turns on whether this is correct or whether the agreement is that objectively, the matters stated in para. 71 are correct.
The draft report mentioned in the Ombudsman's letter of 5 May 1983 to Mr. Cashman was sent to the Director-General of Social Security in March 1983. Thereafter discussions took place between members of the Ombudsman's staff and officers of the Department. Certain correspondence passed between the Ombudsman and the Department. On 3 August 1983 (almost three months after the Ombudsman's decision to refuse Dr. Lucire access to the draft report), Mr. Cashman of the Public Interest Advocacy Centre requested an opportunity to make submissions on behalf of his clients before the completion of the Ombudsman's report. By letter dated 11 August 1983, the Ombudsman informed Mr. Cashman of his willingness to receive submissions. A number of submissions has been received; the Ombudsman is prepared to receive more.
Ms. Shaw left the Ombudsman's office in June 1983 and was replaced by a Mr. Williamson in the investigation of Dr. Lucire's complaints. Mr. Williamson made amendments to various sections of the draft report in the light of comments and submissions received from the Department of Social Security and the further consideration of the report in the Ombudsman's office. In January 1984 Mr. Williamson was transferred to other duties and the investigation was taken over by a Mr. Wills.
Paragraphs 79 - 82 of the agreed statement of facts are as follows:-tentative criticism of various persons including medical practitioners who examined Greek patients, the Ombudsman has sought submissions from those persons who are the subject of criticism in the draft report. The Ombudsman is presently awaiting receipt of such submissions.
"79. Because the draft report now contains express and implied
80. The Ombudsman proposes to complete his investigation within the
next two months.
81. It is the Ombudsman's normal practice not to release draft reports
to complainants unless he believes some significant
benefit would be
gained by so doing and he considers that he should do so. If a person
is criticised in the draft report
he does not necessarily make
available the draft report but he usually makes available such parts of it
as is necessary to
explain the criticism of the person and the context in
which it is made.
82. In the draft report the subject of these proceedings the Ombudsman has criticised certain persons who, as yet, have not commented on the proposed criticisms."
So far as I can judge the draft report which is in evidence is the draft
report as it presently stands and not as it was on 5 May
1983 when Mr. Cashman
was denied access to it by the Ombudsman. Nevertheless the reasons given in
the Ombudsman's letter of 5 May
1983 are intended, apparently, to apply
equally to the current draft report as they did to the original draft report.
The relevant
parts of the Ombudsman's letter are as follows:-
"I refer to your letter of 29 April 1983 by which you requested,
pursuant to the Freedom of Information Act 1982 (FOI
Act), access to a
copy of the Ombudsman's preliminary report of his investigation of the
complaint initiated by Dr. Lucire
in relation to alleged actions of
the Department of Social Security.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . .
I have identified the following document to which you require access:Department of Social Security on a complaint by Dr. Y. Lucire'.
'Draft Report pursuant to section 15 of the Ombudsman Act 1976 to the
The document is held on file S2/507. A description of that file was
set out in the letter of 10 March 1983 from Mr. M.J. Williamson,
Acting Senior Assistant
Ombudsman in response to your earlier FOI
request for documents in relation to the Ombudsman's investigation of Dr.
Lucire's
complaint.
I have examined the draft report and have decided that I should refuse
your request for access to it. As required by section
26 of the FOI
Act I now provide my reasons for my decision.
The Ombudsman Act 1976, under which the Ombudsman's investigation of
Dr. Lucire's complaint has been conducted, provides for the conduct of
investigations to be in private (section 8) and secrecy requirements
are imposed on the Ombudsman and officers in relation to information
disclosed or obtained under
the Act (section 35).
The Act also provides the Ombudsman with substantial discretion as to
the disclosure of information to a complainant or
to anyone else
during an investigation. Sub-section 8(2) of the Act for instance provides
that, in general, an investigation
is to be conducted in such manner as
the Ombudsman thinks fit.
In addition, while the Ombudsman has an obligation under section 12 of
the Act to provide to a complainant (or to the
agency complained
against) particulars of the grounds on which, where relevant, he does not
investigate, or complete his
investigation of, the action that is the
subject of the complaint, there is no requirement that in so doing he
disclose
material relative to the investigation that he would not
otherwise see fit to disclose. Additionally, the Ombudsman has
discretion
under this section as to the manner and timing of the particulars that he
provides to the complainant (or to the
agency complained against)
concerning the results of an investigation.
The draft report is in my view a document of the kind described in
section 36 of the FOI ACT ('Internal working documents')
in that it is
a document, the disclosure of which under the FOI Act, 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 the
agency'.
I am further of the view that any disclosure of the draft report under
the FOI Act would be contrary to the public interest,
on the grounds
that:
it is in the public interest that the statutory framework within which
the Ombudsman operates, and which I have set
out, should be, and be
seen to be preserved; and that
any disclosure of the draft report would be wholly inconsistent with
this statutory framework and therefore contrary
to that public
interest.
Reference was then made to s. 35 of the Ombudsman Act and s. 38 of the Freedom
of Information Act. The letter continued:-
"Apart from the issues I have raised in relation to section 35 of the
Ombudsman Act, an additional and particular issue is that a draft
report of an investigation under the Ombudsman Act serves a particular
purpose in relation to the Ombudsman's obligations under sub-section 8(5)
of the Act. That provides that,
before he completes an investigation,
the Ombudsman, if he is critical of a department, authority or a
person, must afford
the principal officer of the department or authority
or a person the opportunity to appear before him and to make submissions.
A draft report assists in the fulfilling of those desirable obligations.
When a report is finalised, that is, following any
submissions which may
be made in relation to the draft, it then becomes a report for the
purposes of section 15 of the Ombudsman Act. In my view to interrupt that
process by disclosure of the draft report under the FOI Act prior to it
being made under section 15 of the Ombudsman Act would be contrary to the
legislative process set out in the Act.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "
As earlier mentioned, it is the decision to refuse access to the draft report on grounds based on s. 36 of the Freedom of Information Act that the applicant wishes reviewed. His application is based principally upon para. 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 which provides for review on the ground that the decision involves an error of law. Reliance was also placed upon para. 5(1)(e) of the Judicial Review Act and paras. 5(2)(a) and (b) thereof. The applicant contends that the Ombudsman took irrelevant considerations into account and failed to take relevant considerations into account in reaching his decision. But, as counsel for the applicant conceded, these grounds do not add anything to the ground based on error of law, at least from a practical point of view.
Before I come to the specific submissions made on behalf of each of the
parties I should refer to the relevant sections of the Freedom of Information
Act and the Ombudsman Act. The principal section of the Freedom of Information
Act is s.11 which provides that, subject to the Act, every person has a
legally enforceable right to obtain access in accordance with the Act
to a
document of an agency, other than an exempt document, and an official document
of a Minister other than an exempt document.
"Agency" is defined in s.4 to
mean a department or a prescribed authority. Both these expressions are
defined in s.4. Plainly the
Department of Social Security is a "department"
and the Ombudsman a "prescribed authority" within the meanings ascribed to
those
expressions by the section. "Exempt document" means inter alia, a
document which, by virtue of a provision of Part IV, is an exempt
document.
Both ss.36 and 38 are to be found in Part IV. Section 36, so far as it is
material, is as follows:-
"36 (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."factual material contained in the document."
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) This section does not apply to a document by reason only of purely
Sub-section 36(3) enables a Minister, in the circumstances there mentioned, to sign a certificate that the disclosure of a document would be contrary to the public interest. Such a certificate establishes conclusively that the disclosure of a document would be contrary to the public interest. No such certificate has been signed in the present case.
With s.36 should be considered s.22 which provides in sub-sec. (1) as
follows:-
"22. (1) Where-on the ground that it is an exempt document;
(a) a decision is made not to grant a request for access to a document
(b) it is possible for the agency or Minister to make a copy of the
document with such deletions that the copy would
not be an exempt
document and would not, by reason of the deletions, be misleading;
and
(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy, the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make and grant access to, such a copy."
Finally I should mention s.26 which obliges the giving of reasons for refusal to disclose a document. The reasons of the Ombudsman earlier set out were given pursuant to that section.
The Freedom of Information Act was amended by the Freedom of Information Amendment Act 1983. The amendments came into force on 1 January 1984. No amendment was made to s.36 which is the principal section in question in this case. It is not, therefore, relevant to take the amendments into account in considering the questions which arise for decision.
The Ombudsman Act 1976 has been amended on a number of occasions, most recently by the Ombudsman Amendment Act 1983 which was assented to on 12 October 1983. But the decision which is in question, namely that of the Ombudsman of 5 May 1983, was made prior to the amendments effected by the 1983 amending Act coming into force. That was a matter which was noticed in the judgment of the Full Court in the Kavvadias case (supra). The Court concluded that the amendments effected by the 1983 amending Act were relevant to be considered in that case because it was an appeal from the Administrative Appeals Tribunal and the Tribunal's decision had been made after the amendments had come into force. I am dealing with the matter, not on appeal from the Administrative Appeals Tribunal, but on an application for the judicial review of the Ombudsman's decision made on 5 May 1983. Prima facie, therefore, the amendments do not apply.
Counsel for the applicant submitted, however, that they effected procedural changes only and were therefore applicable. I do not see how this could be so. What I am concerned to do is to review a decision of the Ombudsman made on 5 May 1983. The question is whether he decided the matter according to law. The only relevant law to which I should have regard is the Ombudsman Act in the form in which it was at the time he made his decision, not in the form in which it was at some later time. In any event I do not consider the amending Act effected amendments to the Act which bear materially on the matters here to be decided. The submissions relied upon by the parties are, in my opinion, all equally open whether one has regard to the Act as it was before the 1983 amendments or thereafter. But I make it clear that the provisions of the Ombudsman Act to which I now refer are those which were in force before the 1983 amendments.
The principal provisions of the Ombudsman Act, as they affect this case, are
as follow. Para. 5(1)(a) provides that, subject to the Act, the Ombudsman
shall investigate action,
being action that relates to a matter of
administration, taken either before or after the commencement of the Act by a
department,
or by a prescribed authority, and in respect of which a complaint
has been made to the Ombudsman. The Department of Social Security
is a
department for the purposes of this provision. Section 7 provides for the
manner of making complaints. Sub-sec. 8(1) provides
that before commencing to
investigate under the Act action taken by a department or by a prescribed
authority, the Ombudsman shall
inform the responsible Minister and the
principal officer of the department or authority, that the action is to be
investigated.
By sub-sec. 8(2) an investigation under the Act shall be
conducted in private, and subject to the Act, in such manner as the Ombudsman
thinks fit. By sub-sec. 8(3) the Ombudsman may obtain information from such
persons and make such inquiries as he thinks fit. By
sub-sec. 8(4) it is not
necessary for the complainant or any other person to be afforded an
opportunity to appear before the Ombudsman
or any other person in connection
with an investigation by the Ombudsman under the Act. Sub-section 8(5) of the
Act is as follows:-
"8. (5) The Ombudsman shall not make a report in respect of an
investigation under this Act in which he sets out opinions
that are,
either expressly or impliedly, critical of a Department, prescribed
authority or person unless, before completing
the investigation, he has-
(a) if the opinions relate to a Department or prescribed
authority- afforded the principal officer of the Department
or
authority and the officer principally concerned in the action to which
the investigation relates opportunities to
appear before him, or before an
authorized person, and to make such submissions, either orally or in
writing, in relation
to that action as they think fit; and
(b) if the opinions relate to a person - afforded that person an opportunity to appear before him, or before an authorized person, and to make such submissions, either orally or in writing, in relation to the action to which the investigation relates as he thinks fit."
Sub-section 8(8) provides that the Ombudsman may either before or after the completion of an investigation under the Act, discuss any matter that is relevant to the investigation with a Minister concerned with the matter. Sub-section 8(10) provides that where the Ombudsman becomes of the opinion that there is evidence that a person who is an officer of a department or a prescribed authority has been guilty of a breach of duty or misconduct and that the evidence is of sufficient force to justify his doing so, the Ombudsman shall bring the evidence to the notice of the person specified in the sub-section.
Section 9 confers a number of powers enabling the Ombudsman to require persons to answer questions and produce documents.
Section 12 provides, in essence, that where the Ombudsman completes his investigation, he shall furnish to the complainant and to the department or authority in question, in such manner and at such time as he thinks fit, particulars of the results of his investigation. Where action that is in the opinion of the Ombudsman adequate and appropriate in the circumstances is not taken with respect to recommendations included in the report made by the Ombudsman within a reasonable time after the report is furnished to the department or authority, the Ombudsman shall furnish to the complainant a copy of the recommendations made by him in the report together with such comments (if any) as he thinks fit.
Section 15 provides for reports by the Ombudsman. These are not draft reports of the kind in question in this case. There is no provision providing for such a report. Section 15 is applicable where the Ombudsman is of opinion that action taken by a department or authority is contrary to law or, for any of the reasons mentioned in the provisions of sub-sec. 15(1), otherwise wrong. Where the Ombudsman is of opinion that some remedial action is necessary he is to report to the department or authority concerned. Sub-section 15(3) specifies the matters which are to be included in his report. By sub-sec. 15(4) the Ombudsman may request the department or authority to which the report is furnished to furnish to him, within a specified time, particulars of any action that it proposes to take with respect to the matters and recommendations included in the report. A copy of the report is to be furnished to the Minister concerned. Sections 16 and 17 provide for reports, in the circumstances there mentioned, both to the Prime Minister and to Parliament.
Finally, I should mention s.35 which was the subject of consideration by the Full Court in the Kavvadias case (supra). This section provides that an officer shall not, either directly or indirectly, and either while he is or after he ceases to be, an officer, make a record of, or divulge or communicate to any person, any information acquired by him by reason of his being an officer in the employ of the Ombudsman's office, being information that was disclosed or obtained under the provisions of the Act.
That completes the account of the relevant legislation. I next summarise the
submissions which were made on behalf of the parties.
On behalf of the
applicant it was submitted that:-
(a) The draft report was not within para. 36(1)(a) of the Freedom of
Information Act because the matter in question, i.e. the draft report,
was not prepared in the course of or for the purposes of the deliberative
processes involved in the functions of an "agency" (either the Ombudsman
or the Department of Social Security). The submission
concentrated
attention on the words "deliberative processes".
(b) Additionally or alternatively the disclosure of the matter in
question, i.e. the report, would not be contrary
to the public
interest; see para. 36 (1)(b).
(c) If, contrary to submissions (a) and/or (b), the report did fall within sub-sec. 36(1), s. 36 did not apply to the report, or at least substantial parts of it, because it contained in whole or in part "purely factual material"; see sub-sec. 36(5). Section 22 did not operate to prevent access being given to at least part of the draft report. In particular it would not, with deletions of deliberative material, be misleading within the meaning of para. 22(1)(b).
On behalf of the Ombudsman it was submitted that:-for the purposes of the deliberative processes involved in the functions both of the Ombudsman and the Department of Social Security and the disclosure of it would be contrary to the public interest.
(a) The report did fall within sub-sec. 36(1) in that it was prepared
(b) Very little, if any, of the draft report contained purely factual
material. To the extent that there was any such
material in the
report, the exempt parts of the report could not be deleted without so
much of it as would then be
disclosed being rendered misleading by
reason of the deletions.
(c) Notwithstanding the decision of the Full Court in the Kavvadias case, there was disclosed by a consideration of the Ombudsman Act as a whole, a legislative intention that documents prepared by the Ombudsman, including draft reports, were not to be the subject of disclosure under the Freedom of Information Act.
The last of the submissions made on behalf of the Ombudsman is fundamental and I propose to deal with it first. I am clearly of opinion that it should be rejected. I think the matter is covered by the Kavvadias case and by another decision of the Full Court, News Corporation Limited v. National Companies and Securities Commission [1984] FCA 36; (1984) 52 A.L.R. 277. Counsel for the Ombudsman maintained that the submission was still open to him notwithstanding the decision in the Kavvadias case. I confess that I do not understand how this could be so. The Freedom of Information Act applies both to the Ombudsman and to the Department of Social Security; there was no contest about that being the position. The Freedom of Information Act was enacted after the Ombudsman Act, although, it is true, there have been amendments to the Ombudsman Act after the Freedom of Information Act came into force. But there is, in my opinion, nothing in the Ombudsman Amendment Act 1983 which manifests an intention that the Ombudsman is in some way not to be bound by the Freedom of Information Act. Counsel expressly relied on s. 35 of the Ombudsman Act in support of his submission. It is true that he relied on it, along with certain other provisions of the Ombudsman Act as well. However, I do not see, in the light of the decision of the Full Court in the Kavvadias case, how s. 35 could be relied upon. The other sections upon which he placed principal reliance were ss. 8 and 12. I have referred to the detail of these in the analysis of the legislation which I have made. I have also said that it does not seem to me to matter whether one takes into account the Ombudsman Act as it was before the 1983 amending Act or as it has become since that Act came into force. For the purposes of the argument relied upon by the Ombudsman the purport of the legislation is the same. Having considered ss. 8 and 12 and taken into account the Act as a whole I am satisfied that the submission should be rejected.
It follows that the contest in this case is in relation to the particular matters relied upon by counsel for the applicant as to the applicability or otherwise of the exemption provided for in s. 36 of the Freedom of Information Act. Substantial guidance as to the meaning of that section is to be found in three decisions of this Court all arising out of the same litigation. The decisions are Harris v. Australian Broadcasting Corporation (No.1) [1983] FCA 242; (1983) 50 A.L.R. 551, Harris v. Australian Broadcasting Corporation (No.2) (1983) 50 A.L.R. 567 and Harris v. Australian Broadcasting Corporation [1984] FCA 8; (1984) 51 A.L.R. 581. The first two of these decisions were decisions of Beaumont J. at first instance; the third was a decision of the Full Court of this Court on appeal from the second of those decisions. There was no appeal from the first of them. The appeal from the second decision was dismissed.
In his judgment in Harris (No.1) Beaumont J. referred to para. 107 of an explanatory memorandum circulated with the Freedom of Information Bill when it was introduced into Parliament. He also referred to a number of the dictionary definitions of "deliberative" and to the decision of the United States Supreme Court in Environmental Protection Agency v. Mink [1973] USSC 17; 410 U.S. 73 (1973); see generally 50 A.L.R. at pp. 559 - 560. In Mink's case the Supreme Court had said, "Virtually all of the courts that have thus far applied Exemption 5 have recognised that it requires different treatment for materials reflecting deliberative or policy-making process on the one hand, and purely factual investigative matters on the other" (410 U.S. at p. 89).
Beaumont J. concluded that the Australian Parliament had intended to adopt the distinction drawn in Mink's case between deliberative or policy-forming processes on the one hand, and purely factual investigative matters on the other. So much was clear from the contrast between para. 36(1)(a) and sub-sec. 36(5) of the Freedom of Information Act. His Honour was confirmed in this view by the language of para. 107 of the explanatory memorandum which said, "The class of documents which is so defined (i.e. defined in clause 36 of the Bill) is intended to cover all documents that reflect the deliberative or policy-forming processes of an agency or of government". The paragraph went on to say that the class of documents would include, in so far as they concerned the deliberative or policy-forming processes, a number of communications which may truly be termed high level communications and thus plainly policy-forming ones.
With this view in mind his Honour turned to consider the nature of the
document in the case before him and also the question of
public interest (see
pp. 560 - 562). Later (p. 562), he returned to the meaning of "deliberative"
and referred to another United
States case, Vaughn v. Rosen 523 F. (2d) 1136
(1975). He continued (p. 563):-
"Although the United States experience is illuminating for present purposes, in the end, this case must be decided by reference to the language and objects of the Australian statute and in accordance with the public interest of this community. Two points may be made here. First, in interpreting Exemption 5, the United States Court of Appeals may well have imposed a more stringent test in order that material may qualify as part of the deliberative process than the terms of s. 36(1)(a) would seem to require: that provision is satisfied if the matter in question is "in the nature of, or relating to, opinion, advice or recommendation obtained . . . in the course of or for the purposes of . . . the deliberative processes . . .". It may be that material could meet this test, as I have held here, without being an integral part of the policy-making process itself in the sense described in Vaughn v. Rosen.
According to the Shorter Oxford English Dictionary the word "deliberative" means,"pertaining to deliberation; having the function of deliberating". The verb "deliberate" means, "to weigh in the mind, to consider carefully with a view to decision, to think over . . .; to use considration with a view to decision; to think carefully; to take time for consideration . . .; to resolve, determine". The noun "deliberation" means "the action of deliberating; careful consideration with a view to decision; the consideration and discussion of the reasons for and against a measure by a number of councillors; a resolution or determination; deliberateness of action; absence of hurry; leisureliness". The adjective "deliberate" means well weighed or considered; carefully thought out; done of set purpose; studied; not hasty or rash".
Uninstructed by his Honour's reference to the explanatory memorandum which accompanied the Bill and the American authorities, I think that I myself would have leant towards a meaning more in accord with the Shorter Oxford Dictionary definition of "deliberative" as understood more fully when one considers the meanings of "deliberate" (both the verb and the adjective) and "deliberation". To me that is the ordinary meaning of the word. I would not have imported any qualification into the meaning of it based upon the need for there to be as part of the deliberative process some aspect of policy-forming. His Honour himself seems to have regarded that view as at least open in the passage from his judgment which I have cited.
In TCN Channel Nine v. Australian Mutual Provident Society [1982] FCA 169; (1982) 42 A.L.R. 496 the Full Court of this Court decided that in cases where a Bill was introduced to remedy a mischief, it was permissible to have regard to the purpose for which the legislation was to be enacted as stated by the Minister in charge of the Bill. In the Channel Nine case the Court admitted the Hansard report of the second reading speeches of the relevant Ministers and an explanatory memorandum (see pp. 507 - 508). In the light of the different meanings which there are in various dictionaries of the word "deliberative" and of the clear intention of Parliament to draw on much of the American Act as a model for the Australian one, I respectfully agree with Beaumont J. that it was appropriate for him (as it is also for me) to look at these materials in construing para. 36(1) (a). But I must confess to having some reservation about the profit in the exercise when one finds ambiguity not so much in the statute which is being construed as in the explanatory memorandum itself. That ambiguity arises because of the question of whether the words "deliberative" and "policy-forming" are used interchangeably. It would have been easy enough for those responsible for the drafting of the Act to have used the word "policy-forming" as well as the word "deliberative" in the section itself. This was not done. Furthermore, the purpose of para. 107 of the explanatory memorandum was not so much to cast light on the meaning of the word "deliberative", but to highlight the distinction drawn in the legislation between material which was deliberative and material which was purely factual. That is the contrast which is drawn by sub-secs. 36(1) and 36(5).
In the light of what Beaumont J. said in the passage earlier quoted from his judgment I do not believe he has expressed a final view on the meaning of the expression. I do not find it necessary to express such a view either. That is because of the substance of what is contained in the draft report. For the purposes of this case the essential words of para. 36(1)(a) are, "matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared, or recorded for the purposes of the deliberative processes involved in the functions of an agency, that is the Department of Social Security. I omit the Ombudsman himself. I do so because this case, unlike many others, concerns more than one agency or organ of government. The Ombudsman is, within, the meaning of the Freedom of Information Act, an agency; so is the Department of Social Security. Assuming the expression in question to have imported into it the notion that the deliberative processes referred to must be policy-forming processes, an assumption I make for the purpose of dealing with this part of the argument but do not necessarily accept, I am satisfied from a reading of the draft report that it was prepared at least partly for the purposes of the policy-forming processes involved in the functions, if not of the Ombudsman, then clearly of the Department of Social Security.
I do not feel able to state fully my reasons for that conclusion because of the confidential nature of the report and the fact that it is a confidential exhibit. But to the extent that it itself makes criticisms of the Department or informs the Department of criticisms made of it by others and discusses and comes to conclusions concerning the validity of those criticisms, it is, in my opinion, doing so for the policy-forming processes of the Department using "policy-forming" in the sense in which it is used in Mink's case. It is true that may not have been the sole purpose of the Department which will be served by the communication to it of the draft report. But it will be a major purpose of its communication to it. I therefore conclude that the disclosure of the report would disclose matter in the nature of or relating to opinion, advice or recommendation prepared or recorded for the purposes of the deliberative processes involved in the functions of the Department of Social Security. In expressing myself in that way I have endeavoured to select from para. 36(1) (a) the words which I consider to be those which are most applicable. It follows that the applicant's first sumission should be rejected whatever the width or narrowness of the word "deliberative" in the paragraph may be. If the word has the wider meaning which, on balance, I prefer, the draft report clearly falls within the paragraph.
I turn to the second submission which raises the question of public
interest. Again, assistance is to be found in the judgment of
Beaumont J. in
Harris (No. 1) (supra). But there is a distinction between that case and the
present in that in Harris the decision,
review of which was sought, was not a
reasoned one. Indeed, it was the applicant who sought review of a decision to
disclose the
document there in question. It was she who contended that it
should not be disclosed. Here there is a reasoned decision. I have earlier
quoted the relevant paragraphs of it, but I repeat so much of it as is
relevant to the question of public interest, namely:-
"I am further of the view that any disclosure of the draft report
under the FOI Act would be contrary to the public interest,
on the
grounds that:
. it is in the public interest that the statutory framework within
which the Ombudsman operates, and which I have set
out, should be, and
be seen to be preserved; and that
. any disclosure of the draft report would be wholly inconsistent with this statutory framework and therefore contrary to that public interest."
In my opinion the reasons assigned by the Ombudsman cannot be supported. He is really saying that provisions of the Ombudsman Act override the provisions of the Freedom of Information Act. This is in substance the more general argument which I have rejected. It also has overtones of the arguemnt based on s. 35 of the Ombudsman Act which was rejected by the Full Court in the earlier Kavvadias case. If there were no more, it would be necessary for the matter to go back to the Ombudsman for further consideration. But, not without some hesitation, I have reached the conclusion that in the exercise of my discretion, I should not take that course.
In Harris (No. 1) Beaumont J. pointed to the necessity to weigh the public
interest in citizens being informed of the processes
of their government and
its agencies on the one hand against the public interest in the proper working
of government and its agencies
on the other (p. 561). Later, he said, (p.
563):-
"Given that the public interest is not a static concept, in my opinion, full disclosure of the reports, at this stage, would, on balance, be contrary to the public interest. The unchallenged evidence is that, in submitting her "interim" reports, Miss Pearlman did not seek information or comment from the applicant. No doubt, this course was adopted for sound practical reasons, presumably in the interest of expedition. But an incomplete inquiry conducted on such a limited footing could only lead to the formation, at that point, of views or opinions of a tentative or provisional kind (cf. Blackshaw v. Lord (1983) 3 W.L.R. 283 at 301). However, publication of such views or opinions, provisional as they may be, could create a misleading, perhaps unfair, impression in the minds of readers who do not have the benefit, if there be any, of knowing the response of the applicant. The formation of such impressions in the public mind could, in turn, influence the decision-makers in their review of the situation. In my opinion, the provisions of s. 36(1) are satisfied in the present case so far as any opinion, advice or recommendation is expressed in the reports".
A principal purpose of the draft report is to enable the Ombudsman to discharge the obligation cast on him by para. 8(5)(a) of the Ombudsman Act. That paragraph obliges him to afford the principal officer of the Department of Social Security and any officer concerned in the action to which the investigation relates, opportunities to appear before him and to make submissions either orally or in writing in relation to action taken by them of which the Ombudsman is expressly or impliedly critical.
It may be that since the Ombudsman's decision of 5 May 1983 not to disclose the report to the applicant or Dr. Lucire, discussions between the staffs of the Ombudsman and the Department of Social Security has led to amendments of the draft report with the result that the Ombudsman's obligations under para. 8(5)(a) of the Ombudsman Act are all but, if not totally, discharged. The evidence does not enable me to say whether that is so or not. But para. 79 of the agreed statement of facts earlier quoted says that because the draft report contains tentative criticism of various persons, including medical practitioners, who examined Greek patients, the Ombudsman has sought submissions from those criticised in the draft report. The Ombudsman is awaiting receipt of such submissions. Paragraph 79 indicates that the Ombudsman is in the process of discharging the obligations cast on him by para. 8(5)(b) of the Ombudsman Act whereby he is bound to afford a person criticised an opportunity to make submissions.
It would appear that the Ombudsman has not shown the persons mentioned in para. 79 of the agreed statement of facts the draft report. But I should infer that he has told them enough of what it contains in relation to them to enable them to make submissions. And, depending on their submissions, will depend the form of his final report. It follows that if, as the applicant would have it, the draft report is disclosed, the problems mentioned by Beaumont J. in the passage cited from his judgment are likely to arise. It may well be that criticism the Ombudsman has made will not be maintained or will be changed. If that were to occur it may be unfair to the Department or to the persons mentioned in para. 79 of the agreed statement of facts that his tentative criticisms be disclosed. On balance it would be contary to the proper working of government for there to have been published an earlier report in which criticism, no longer maintained, was included.
Why, it may be asked, should I so readily infer that if the matter went back to the Ombudsman for further consideration he would conclude, for reasons akin to those I have mentioned, that the disclosure of the draft report would be contrary to the public interest? The answer is that the Harris litigation was decided well after his decision of 5 May 1983. He has, as I have, the benefit of the consideration of the relevant provisions of the Freedom of Information Act given by the judges who decided the Harris cases. It would be strange indeed if he did not, quite properly in my opinion, rely on similar considerations. That is particularly so when there is taken into account the fact that his counsel relied on what had been said by Beaumont J. in Harris (No. 1) in his submissions in this case. For that reason I think the sending of the matter back to the Ombudsman would be an idle exercise. It is not one which has any purpose.
The problem in this case has arisen because of the Ombudsman's practice of not making the whole or parts of a draft report available to a complainant unless he intends to criticise the complainant (see para. 8(5)(b) of the Ombudsman Act). Broadly speaking what the applicant and Dr. Lucire wish to achieve is that a copy of the draft report be made available to them so that they may see whether, in their opinion, adequate criticism of the Department has been made. That is not an opportunity which the Ombudsman is willing to afford them. Subject to what I have to say concerning sub-section 36(5), it is not something which, in my opinion, he is bound, as a matter of law, to do.
For the foregoing reasons I am satisfied that the draft report is within sub-sec. 36(1) of the Freedom of Information Act. But, subject to the operation of s. 22 of that Act, sub-sec. 36(1) will not exempt the disclosure of "purely factual material" (sub-sec. 36(5)). The meaning of those words was discussed by Beaumont J. in Harris (No. 2) (1983) 50 A.L.R. 567 and by the Full Court in that case on appeal [1984] FCA 8; (1984) 51 A.L.R. 581. I do not need to repeat what is said in the two judgments. But in those judgments is to be found guidance as to what should be done here. The Ombudsman, subject to s. 22, is bound to disclose such parts of the draft report as comprise purely factual material.
I have read the report and I do not think the task of dissecting it will prove an easy one. For the purpose of raising an example counsel for the Ombudsman referred me to paragraphs 24 to 31. He said that if one were to read paragraphs 24 to 30 alone, the conclusion would probably be that they contained purely factual material. But he said that when they were read in the light of what was contained in para. 31, the only conclusion was that they all contained deliberative material. I do not agree with this submission. I think that paragraphs 24 to 30 do contain purely factual material and ought, subject to any operation that should be accorded s.22, to be made the subject of disclosure. On the other hand I think the example selected by counsel is a comparatively simple one. The disclosure of paragraphs 24 to 30 will not assist the applicant or Dr. Lucire because they only contain a history of the complaint and reveal nothing of the Ombudsman's approach in dealing with the complaint, which is what they desire to have.
During the argument it was agreed that in the event that I determined the matter in the way that I propose to, namely, by saying that the Ombudsman is bound to disclose only so much of the draft report as comprises purely factual material, and then only if to do so would not run counter to s. 22, counsel would between themselves endeavour to agree as far as possible on what material was to be disclosed and what was not, leaving it to me to decide any questions which they were unable to resolve by agreement. That is the only course which I think can be taken. But I think there will remain substantial areas of disagreement. The report is a lengthy one and the task, I am afraid, may be long, tedious and expensive. How profitable it will be from the point of view of the applicant at the end of the road I think is open to question.
The orders I would propose to make are as follows:-the Freedom of Information Act 1982 refusing to disclose to the applicant the draft report of the Ombudsman dated in or about the month of March 1983 in relation to complaints concerning the conduct of the Department of Social Security in stopping payment of pensions to a number of Greek pensioners be set aside.
1. Order that the decision of the Ombudsman made on 5 May 1983 under
2. Direct that the Ombudsman give the applicant access to so much of
the draft report referred to in Order 1 as consists
of purely factual
material in the sense of that expression as used in sub-sec. 36(5) of the
Freedom of Information Act 1982.
3. Reserve general liberty to apply to either party on 7 days notice.
I shall not make those orders now. Instead, I propose to give counsel an
opportunity of considering what I have said and of speaking
to the proposed
orders. The matter will be stood over for a short time to enable that to be
done.
SUPPLEMENTARY REASONS FOR JUDGMENT
To be appended to Reasons for Judgment delivered on 9 July 1984 already circulated. The matter was disposed of by consent on 25 July 1984 instead of 1 August 1984 as earlier foreshadowed.
In this matter I delivered reasons for judgment on 9 July last. On page 41 of that judgment I noted orders which I said I would propose to make, subject to submissions to be made to me by counsel for the parties after they had had an opportunity of considering my reasons. This morning I have been informed by counsel that they are in agreement that I should make the proposed orders. They have also informed me that the parties have agreed upon which paragraphs of the draft report referred to in Order 1 are to be made available for inspection by the applicant upon the basis that they contain purely factual material, in the sense in which that expression is used in sub-sec. 36(5) of. the Freedom of Information Act 1982.
Counsel have further informed me that the report referred to is the original draft report of 5 May 1983. On page 12 of the reasons for judgment I had said that, so far as I could judge, the draft report in evidence was the draft report as it presently stands and not as it was on 5 May 1983, when Mr Cashman, on behalf of the applicant and Dr Lucire, was denied access to it by the Ombudsman. My view in that respect is apparently erroneous. The report was in fact the original draft report.
The orders I make are orders in terms of paragraphs 1, 2 and 3 of the proposed orders noted on page 41 of the judgment. I note the agreement of the parties, a copy of which I have initialled and placed with the papers, as to those paragraphs of the draft report which are to be made available for the inspection of the applicant. By consent I make no order as to costs.
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