Re Jennifer May Mcdonald Harris v Australian Broadcasting Corporation; Keith Cameron Mackriell and Michael H Cosby [1984] FCA 8; (1984) 1 FCR 150; 51 ALR 581 / (1984) Admn Para 96-006 / 5 ALD 564 (8 February 1984)

FEDERAL COURT OF AUSTRALIA

Re: JENNIFER MAY McDONALD HARRIS
And: AUSTRALIAN BROADCASTING CORPORATION; KEITH CAMERON MACKRIELL and MICHAEL
H. COSBY [1984] FCA 8; (1984) 1 FCR 150
No. NSW G337 of 1983
Administrative Law
[1984] FCA 8; 51 ALR 581 / (1984) ADMN para 96-006 / [1984] FCA 8; 5 ALD 564

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), St John(1) and Fisher(1) JJ.

CATCHWORDS

Administrative Law - Judicial Review - Freedom of Information Act - Interim reports concerning the function and operation of Australian Broadcasting Corporation's Legal Department - Exempt documents under s.38 - Whether part consists of "purely factual material" - Whether summaries, conclusions and judgments can be "purely factual material".

Administrative Decisions (Judicial Review) Act 1977, s.5.

Freedom of Information Act 1982, ss.14, 22(1), 36.

Administrative Law - Judicial review - Freedom of Information Act 1982 - Access to reports concerning the function and operation of the Australian Broadcasting Corporation Legal Department - Whether reports exempt documents under s. 36 - Whether part of reports consist of "purely factual material" - Whether summaries conclusions and judgments can be "purely factual material" - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5 - Freedom of Information Act 1982 (Cth), ss 14, 22 (1), 36. The appellant sought a review, under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 of a decision of the Australian Broadcasting Corporation ("the Corporation"), in which access was granted to the third respondent to reports concerning the functions and operations of the Corporation's legal department of which the appellant was the head. Access to the reports was granted pursuant to the Freedom of Information Act 1982 (Cth) and the appellant contended that the decision to grant access involved an error of law for the reason that the reports were exempt documents under s. 36. The trial judge found that the reports fell within the category of exempt documents in s. 36 (1)(a) but considered that certain parts of the reports contained "purely factual material" and accordingly pursuant to s. 36 (5) fell within the exception to the exempt documents and were able to be disclosed. The appellant appealed from this decision.

Held: (1) The Corporation obtained the reports to use them as the basis of its deliberations concerning the future operations of its legal department and in these circumstances the reports fell within the terms of s. 36 (1)(a) of the Freedom of Information Act 1982 (Cth) subject to the operation of s. 36 (5).

(2) Some summaries may be classed as "purely factual material" pursuant to s. 36(5) although summaries which are of such a character as to disclose a process of selection involving opinion advice or recommendation for the purpose of the deliberative process, may be exempt under s. 36(1)(a). Equally, some conclusions may be classed as "purely factual material" where the conclusion is a statement of an ultimate fact based on a primary fact.

(3) The provisions of s. 36 of the Freedom of Information Act 1982 (Cth) are to be applied according to commonsense and the substance of the matter and not as an exercise in semasiology.

HEARING

Sydney, 1983, December 9; 1984, February 8. 8:2:1984
APPEAL.

Appeal from a decision of Beaumont J.

R. D. Giles, for the appellant.

A. E. Emmett, for the first and second respondents.

The third respondent in person.
Cur. adv. vult.

Solicitors for the appellant: Minter Simpson.

Solicitors for the first and second respondents: Perkins, Linton &

Stevenson.

J. J. ISLES.

ORDER

The appeal be dismissed.

Jennifer May McDonald Harris pay to the Australian Broadcasting Corporation, Keith Cameron MacKriell and Michael H. Cosby their costs of the appeal.

Orders accordingly.

DECISION

This is an appeal from a decision of a single judge of this Court given on 31 October 1983 upon an application for review under s.5 of the Administrative Decisions (Judicial Review) Act 1977.

2. The application for review was made by Jennifer May McDonald Harris (the appellant) seeking review of a decision of the Australian Broadcasting Corporation (the "Corporation") (the first respondent) and/or Keith Cameron MacKriell (the second respondent) the General Manager of the Corporation. The decision in question was that Michael H. Cosby (the third respondent) be granted access to the first and second interim Reports of Miss Mahla Pearlman. Miss Mahla Pearlman, the immediate past President of the Law Society of New South Wales, had been asked by the Corporation to report upon and make
recommendations concerning the functions and operation of the Corporation's Legal Department of which Miss Harris was the head.

3. Miss Harris based her application for review of the Corporation's decision upon general grounds. We are concerned in this appeal with one only of these grounds, namely, that the decision involved an error of law or was otherwise contrary to law for the reason that the reports are exempt documents under s.36 of the Freedom of Information Act, 1982.

4. Sub-sections (1) and (5) of s.36 are 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.
.....
(5) This section does not apply to a document by reason
only of purely factual material contained in the document."

5. It was common ground that the Corporation was an agency. The learned trial Judge held that the two interim Reports were documents which would disclose matter in the nature of opinion, advice or recommendation, prepared for the purposes of the deliberative processes involved in the functions of the Corporation. He also held that disclosure of the reports would be contrary to the public interest. Neither of these conclusions is challenged on the appeal. These conclusions would suggest that the reports were exempt documents. However, a question then arose as to the application of sub-s. 36(5). It was common ground that if it was possible for the Corporation to make a copy of the document with deletions of all material except purely factual material the reports treated in this way would not then be exempt documents (see sub-s. 22(1)). It was assumed that this would be done in such a way that the document would not be misleading. At this stage therefore his Honour set aside the decision of the Corporation to give unrestricted access and directed that the Corporation give to Mr. Cosby access to so much of the reports as consisted of purely factual material. He indicated that he had in mind the possibility that a question might arise as to what was purely factual material and, if so, the further question as to its severability and accordingly reserved liberty to apply.

6. In the events which happened, a dispute arose between the Corporation and Miss Harris as to what, if anything, in the reports consisted of purely factual material for the purposes of the order. Mr. Cosby was not a party to this exchange of views because he had been joined as a party upon the condition that he not have access to the reports until further order.

7. The matter was restored to the list for further argument, pursuant to the leave reserved. His Honour directed that the matter be argued in open Court but by reference to categories of disputed material.

8. In the result he concluded that it was possible to discern in the first interim Report two broad categories of material: first, investigative material consisting of the underlying facts as perceived by Miss Pearlman at that stage of her inquiry; secondly, material in the nature of recommendations to the Corporation contained in Division 4 of Part I of the report headed "Conclusions". His Honour was of the view that the first category of material was purely factual. No difficulty as to severability arose in relation to this material. His Honour considered that the second report consisted, in the main, of a series of recommendations to the Corporation, and, therefore, was not purely factual material with the exception of a limited number of severable sections; namely, the section of the report headed "Introduction" and Annexures "1" and "3". He expressed the view that in the body of the report occasional examples of factual material might be found but he thought it was not possible to sever this material from its context and it was not "purely" factual.

9. In the result he ordered the Corporation to give Mr. Cosby access to the whole of the first interim Report (including its annexures) other than the material contained in Division 4 of Part I and to the material headed "Introduction" and Annexures "1" and "3" only in the second interim Report.

10. In the notice of appeal lodged against this decision two orders are sought: first, an order that the Corporation give Mr. Cosby access to no part of the reports, and, secondly, in the alternative, an order determining what parts of the reports are purely factual material and an order that Mr. Cosby have access to the parts so determined.

11. On the hearing of the appeal the request for the first of these orders was not pressed. Argument was limited to the request for the second determination and order. As was the case before the trial Judge, the matter was argued in open Court but by reference to categories of disputed material. This necessarily left the Court not only with the task of deciding the categories relevant to this case which fall within or outside the concept of purely factual material but also with the task of going through the material in the reports in detail and applying the decision to that material.

12. Before we deal with those issues we should mention s.14 of the Freedom of Information Act. This is in the following terms:

"14. Nothing in this Act is intended to prevent or
discourage Ministers and agencies from publishing or giving
access to documents (including exempt documents), otherwise
than as required by this Act, where they can properly do so
or are required by law to do so."

13. Notwithstanding s.14, the Corporation, although initially it had decided to give access to Mr. Cosby informed the Court that if the documents were held to be exempt, it would now rely upon the exemption. Reference was made to ss. 91 and 92.

14. The first question which arises is what is covered by the phrase used in sub-s.36(5) "purely factual material." We were referred to the dictionary meanings of the words "factual" and "fact" appearing in the Shorter Oxford Dictionary, the Macquarie Dictionary and Chambers Dictionary. We were also referred to cases decided in the United States concerning Exemption 5 in the Freedom of Information Act 1966 (U.S.). Exemption 5 excludes from the obligation of disclosure -

"inter-agency or intra-agency memorandums or letters which
would not be available by law to a party... in litigation
with the agency."

In Environmental Protection Agency v Mink [1973] USSC 17; (1973) 410 U.S. 73, the Supreme Court had occasion to consider Exemption 5. Mr. Justice White delivering the majority opinion of the Court said (at p.91):

"It appears to us that Exemption 5 contemplates that the
public's access to internal memoranda will be governed by
the same flexible, commonsense approach that has long
governed private parties' discovery of such documents
involved in litigation with Government agencies. And, as
noted, that approach extended and continues to extend to the
discovery of purely factual material appearing in those
documents in a form that is severable without compromising
the private remainder of the documents."

The distinction between factual and deliberative material had been earlier suggested in the United States Court of Appeals, District of Columbia Circuit, in Soucie v David (1971) 448 F. 2d. 1067. Following the Mink Case it was further explored in the Court of Appeals, District of Columbia Circuit in Montrose Chemical Corporation of California v Train (1974) 491 F. 2d. 63 where the Court had to consider whether factual summaries should be exempt from disclosure. The Court stated (at p.68):

"Our solution rests on the interpretation of the purpose of
exemption 5. If the exemption is intended to protect only
deliberative materials, then a factual summary of evidence
on the record would not be exempt from disclosure. But if
the exemption is to be interpreted to protect the agency's
deliberative process, then a factual summary prepared to aid
an administrator in resolution of a difficult, complex
question would be within the scope of the exemption."

The conclusion was expressed as follows:

"(6) Exemption 5 was intended to protect not simply
deliberative material, but also the deliberative process of
agencies. When a summary of factual material on the public
record is prepared by the staff of an agency administrator,
for his use in making a complex decision, such a summary is
part of the deliberative process, and is exempt from
disclosure under exemption 5 of FOIA.
In reaching the conclusion that the documents here are
exempt from disclosure, we do not reject the
factual/deliberative test adopted in previous cases.
Instead, we develop that test to recognize that in some
cases selection of facts or summaries may reflect a
deliberative process which exemption 5 was intended to
shelter."

In Washington Research Project Inc. v Department of Health, Education and Welfare (1974) 504 F. 2d. 238 a summary of facts was held to be exempt from disclosure by virtue of Exemption 5. Relying on the Mink Case the Court said Exemption 5 does not shield from disclosure purely factual, investigative matters as opposed to materials reflecting deliberative or policy making processes. But the Court held that the summary before it was part of the deliberative process.

15. In Vaugh v Rosen (1975) 523 F. 2d. 1136 the same Court stressed (at p. 1144) that to be within Exemption 5 the document must be -

"a direct part of the deliberative process in that it makes
recommendations or expresses opinions on legal or policy
matters. Put another way, pre-decisional materials are not
exempt merely because they are pre-decisional; they must
also be a part of the agency give-and-take - of the
deliberative process - by which the decision itself is made."

Later the Court said:

"Looking at the evaluative portions of the sample reports
themselves, we note nothing in them to suggest that they are
anything other than 'final objective analyses of agency
performance under existing policy.' While the Commission's
evaluating team probably hopes that its analyses will have a
salutary effect on agency personnel practices, the
evaluative reports appear to be informational in nature.
They provide the raw data upon which decisions can be made;
they are not themselves a part of the decisional process."

16. Of course, s.36 of the Freedom of Information Act has to be interpreted according to the words which have been used, the context and the purpose disclosed. There is no notion of discovery in legal proceedings involved in it, as there is in the United States statute. Furthermore, it is to be noted that the United States cases, for the purpose of applying Exemption 5 of the Freedom of Information Act 1966 (U.S.), have formulated a test whether on the one hand the material is purely factual and therefore discoverable or on the other hand is part of the deliberative process and therefore entitled to exemption. Under the Commonwealth Act material has to be opinion, advice or recommendation for the purposes of the deliberative processes before it may qualify for exemption under sub-s.36(1). It may then be excluded under sub-s.36(5) if it is purely factual material and, if severed, would not be misleading (s.22). However, the discussion in the United States cases, which preceded the passing of the Commonwealth Act, deals with the same subject matter in a way which may afford some help.

17. Another matter to be noted is that although the marginal note to s.36 refers to "Internal Working Documents" the wording of sub-s. 36(1) makes it clear that it extends to documents of the kind specified which originate outside the agency but which are supplied for use in its deliberative processes.

18. Counsel for Miss Harris argued that there should be excluded from the category of purely factual material under s.36:

(a) Summaries (because of the judgmental process involved
in compiling them);
(b) Conclusions expressed as findings by Miss Pearlman;
(c) Judgments founded upon Miss Pearlman's expertise or
the application of some standard.

19. In our view some summaries may be classed as purely factual material; others, which are of such a character as to disclose a process of selection involving opinion, advice or recommendation for the purpose of the deliberative process, may be exempt under s.36.

20. Equally, some conclusions may be classed as purely factual material. We hesitate to import notions from the law of evidence into this field. However, it may be useful to refer to the distinction, with which lawyers are familiar, between primary facts and ultimate facts. In our view a statement of ultimate fact may be a statement of purely factual material notwithstanding it involves a conclusion based on primary facts. Many common statements of fact may, if analysed, be found to be based on primary facts. For example, the statements X has a cold or Y resides in Sydney are both statements based on primary facts, which are unstated. On the other hand, a conclusion which involves opinion, advice or recommendation for the purposes of the deliberative process may well prevent material from being purely factual and render it exempt.

21. The same may be said of judgments of Miss Pearlman founded upon her expertise or the application of some other standard. If the material is in the nature of or relating to opinion, advice or recommendation for the purposes of the agency's deliberative processes, it may qualify for exemption. But purely factual material, whether or not the statement of it is founded upon her expertise or based on the application of some standard, will be excluded from the exemption in s.36.

22. Turning to the two interim Reports of Miss Pearlman, the initial question is whether giving access to either would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded in the course of, or for the purposes of, the deliberative processes involved in the functions of the Corporation within the meaning of para. 36(1)(a). Strictly, it is only where a document answers this description in para. 36(1)(a) that one need consider the application of sub-s. 36(5) excluding purely factual material from the exemption. If either document does not answer the description in para. 36(1)(a) it is not exempt under that section.

23. Apart from the act of commissioning Miss Pearlman to report, the Corporation had not entered upon the deliberative processes involved in its functions. However, the reports, even if not obtained or prepared in the course of its deliberative processes, were obtained for the purposes of those processes. The terms of reference require Miss Pearlman "to review, report upon and make recommendations concerning the functions and the operation of the Legal Department generally, but with particular regard to" certain listed matters. Clearly, the Corporation was obtaining these reports to use them as the basis of its deliberations concerning the future operation of its Legal Department. In these circumstances, we are of opinion, the reports fall within the terms of para. 36(1)(a) and are exempt documents subject to the operation of sub-s.36(5).

24. A perusal of the first interim Report discloses that "Division 4 - Conclusions" appearing in Part I contains a summary of conclusions involving opinions, advice and recommendations for consideration by the Corporation in its deliberations concerning the matters referred to Miss Pearlman; the rest of the Report appears to be factual material. We have given consideration to sections of the Report where passages are introduced by such phrases as "I am of opinion", "I am inclined to the view", "I find", or "I conclude". However, in all of these cases we consider that the statement made is in the nature of a statement of the facts as Miss Pearlman sees them. In each case the statement is preceded by a recital of particular facts in detail. In our view, a provision such as s.36 in the Freedom of Information Act is to be applied according to common sense and the substance of the matter and not as an exercise in semasiology.

25. Even adopting this approach one form of words used by Miss Pearlman has caused us some hesitation. In paragraphs 10.4, 17.3 and 18.4 of the first interim Report after a recital of detailed facts she says -

"I recommend that no further investigation of this complaint

should be made for the following reasons..."
Again, in paragraph 11.10 she says -

"I recommend that no further investigation of the matter set
out in the January memo should be made at this stage."

These statements, although couched as recommendations, are essentially statements of her intention not to proceed further in her enquiry into the particular topics. There is also an element of true recommendation to the Corporation, in the sense that she is in effect, inviting their assent or dissent to her proposed course of action. But these are not essentially statements of recommendations to be used by the Corporation for the purposes of its own deliberations. We would conclude that access should be given to these statements. We therefore agree with the orders made by the trial Judge governing access to the first interim Report.

26. A perusal of the second interim Report discloses that the text contains opinions, advice and recommendations prepared for the purposes of the Corporation's deliberations. There are occasional statements of factual material but none which is severable in accordance with s.22. The learned trial Judge rightly denied access to the text of this Report. The Introduction and annexures are different. We agree with his Honour's decision to permit access to the Introduction and annexures 1 and 3. We should add that annexures 2, 4, 5, 6 and 7 appear to us to contain purely factual material. However, in the absence of access to the main text, their bearing is not apparent and in this sense, they could be misleading. In the result we consider his Honour's order in relation to the second interim Report to be correct.

27. We would dismiss the appeal with costs.