"WAJ" and Commonwealth Ombudsman; Brown (party joined) [1999] AATA 13 (14 January 1999)

Last Updated: 9 February 1999

DECISION AND REASONS FOR DECISION [1999] AATA 13

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1996/391

GENERAL ADMINISTRATIVE DIVISION )

Re "WAJ"

Applicant

And COMMONWEALTH OMBUDSMAN

Respondent

And GRACE ROSEMARY BROWN

Party Joined

(No 2)

DECISION

Tribunal Associate Professor S D Hotop, Senior Member

Date 14 January 1999

Place Perth

Decision The Tribunal declines to make a recommendation under s.66(1) of the Freedom of Information Act 1982 that the costs of the applicant in relation to the proceedings in this matter be paid by the Commonwealth.

...........(sgd) S D Hotop...........

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION - Costs - Discretion of Tribunal to recommend payment of applicant's costs by Commonwealth - Whether applicant substantially successful in application for review - Whether payment of costs would cause financial hardship to applicant - Whether decision of Tribunal on review will be of benefit to general public - Whether decision of Tribunal on review will be of commercial benefit to applicant - Whether reviewable decision was reasonable - Other general relevant considerations - Whether conduct of respondent caused unreasonable delay and unnecessary costs to applicant.

Freedom of Information Act 1982 s.66(1), (2)

Re Bailey and Commonwealth Tertiary Education Commission (1986) 12 ALD 165

Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301

Re Chan and Department of Immigration and Ethnic Affairs (No 2) (1985) 8 ALN N52

Re Hounslow and Department of Immigration and Ethnic Affairs (1985) 7 ALN N362

Re Kabalan (1993) 113 ALR 330

Re Lianos and Secretary, Department of Social Security (No 2) (1985) 9 ALD 43

Re Paterson and Department of Home Affairs and Environment (1985) 7 ALD 403

Re Paterson and Department of Arts, Heritage and Environment (No 2) (1985) 8 ALD 227

Re Rae and Department of Arts, Heritage and Environment (1985) 7 ALD 449

Re Sullivan and Department of Industry, Science and Technology and Australian Technology Group Pty Ltd Unreported, Decision No 10889B, 20 March 1998

Re Toomer and Department of Primary Industries and Energy (1991) 22 ALD 164

REASONS FOR DECISION

14 January 1999 Associate Professor S D Hotop, Senior Member

Introduction

1. On 29 October 1996 the applicant lodged with the Tribunal an application for review of a decision ("the reviewable decision"), dated 9 October 1996, of a Deputy Commonwealth Ombudsman refusing access under the Freedom of Information Act 1982 ("FOI Act") to certain documents that were the subject of a request by the applicant for access under that Act. The reviewable decision was made on an internal review of a decision ("the primary decision"), dated 31 July 1996. That internal review had been requested by the applicant, pursuant to s.54(1) of the FOI Act, on 13 August 1996.

2. On 22 June 1998 the Tribunal, pursuant to s.43(1) of the Administrative Appeals Tribunal Act 1975 ("AAT Act"), set aside the reviewable decision and made a decision in substitution for that decision. At the applicant's request, liberty was granted to him to apply to the Tribunal for a recommendation under s.66(1) of the FOI Act that his costs in relation to the Tribunal review proceedings be paid by the Commonwealth.

3. By letter dated 4 September 1998 the applicant's solicitors informed the Tribunal that it was the applicant's "intention to seek a costs order in this matter".

4. On 25 September 1998 the Tribunal made directions whereby

* the applicant was given the opportunity to file evidence on affidavit and written submissions in relation to the issue of costs;

* the respondent was given the opportunity to file written submissions in reply to the affidavit and written submissions filed by the applicant;

* the applicant was given the opportunity to file written submissions in reply to the respondent's written submissions.

5. Pursuant to the Tribunal's directions of 25 September 1998

* the applicant, on 16 October 1998, filed with the Tribunal written submissions and an affidavit in support of his application for a recommendation for costs under s.66 of the FOI Act;

* the respondent, on 19 November 1998, filed with the Tribunal written submissions in reply to the abovementioned affidavit and submissions filed by the applicant;

* the applicant, on 8 December 1998, filed with the Tribunal written submissions in reply to the abovementioned submissions filed by the respondent.

6. The Tribunal has had regard to the abovementioned affidavit and written submissions for the purpose of making this decision on the applicant's application for a recommendation under s.66(1) of the FOI Act that his costs in relation to the Tribunal review proceedings be paid by the Commonwealth.

The Relevant Legislation

7. Section 66 of the FOI Act relevantly provides:

"66. (1) Where:

(a) a person makes application to the Tribunal under section 55 for review of a decision constituting the action to which the complaint relates; and

(b) the person is successful, or substantially successful, in his application for review;

the Tribunal may, in its discretion, recommend to the Attorney-General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.

(2) Without limiting the generality of the matters to which the Tribunal may have regard in deciding whether to make a recommendation under subsection (1), the Tribunal shall have regard to:

(a) the question whether the payment of the costs or any part of the costs would cause financial hardship to the applicant;

(b) the question whether the decision of the Tribunal on review will be of benefit to the general public;

(c) the question whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal; and

(d) the reasonableness of the decision reviewed by the Tribunal.

...".

8. Subsection (1) of s.66 of the FOI Act confers on the Tribunal a discretionary power to decide whether or not to recommend to the Attorney-General that the costs of an applicant in relation to Tribunal review proceedings commenced pursuant to s.55 of that Act be paid by the Commonwealth. A favourable exercise of that discretionary power is, however, by the terms of s.66(1) conditional upon the applicant's having been "successful, or substantially successful, in his (or her) application for review".

9. Subsection (2) of s.66 of the FOI Act requires the Tribunal, in exercising the discretionary power conferred by subs. (1), to have regard to the four matters specified in paras (a) - (d) of subs.(2). Those four matters are, however, not exhaustive of the matters that may legitimately be taken into account by the Tribunal in exercising that discretionary power because, according to subs.(2), the mandatory requirement to consider those matters does not limit "the generality of the matters to which the Tribunal may have regard in deciding whether to make a recommendation under subsection (1)." Although the scope of the discretionary power conferred by s.66(1) is broad and not confined to or by the relevant considerations specified in s.66(2), it does not follow that it is at large. In accordance with general principles of administrative law, that discretionary power must be exercised according to law -! that is, it must, inter alia, be exercised rationally and in conformity with the scope and purposes of the empowering legislation (in this case, the FOI Act), and without regard to purposes or matters extraneous to those intended or contemplated by the legislature. In this connection the Tribunal adopts the following statement of Deputy President Hall in Re Paterson and Department of Arts, Heritage and Environment (No 2) (1985) 8 ALD 227 at 234 in relation to the discretionary power conferred by s.66(1) of the FOI Act:

" The nature of the discretion conferred upon the Tribunal is quite inconsistent, in my view, with any notion of a presumptive entitlement to costs in every case of success. Parliament clearly intended that the Tribunal should weigh the circumstances of each case, in the light of the specified and any other relevant considerations, in order to decide whether or not a recommendation should be made."

The Issues

10. In order to decide the present application the threshold issue - namely, whether the applicant was "successful, or substantially successful, in his application for review" - will be considered first. If that issue is resolved in favour of the applicant, the Tribunal will then have regard to the four matters specified in s.66(2) of the FOI Act, and any other relevant considerations, in the context of the circumstances of the applicant's case and, having regard to those matters and considerations, will finally decide whether it is appropriate to make a recommendation pursuant to s.66(1) of that Act that the applicant's costs be paid by the Commonwealth.

Was the applicant "successful, or substantially successful, in his application for review"?

11. Whether an applicant is "successful, or substantially successful, in his (or her) application for review" may be assessed qualitatively, as well as quantitatively. In Re Lianos and Secretary, Department of Social Security (No 2) (1985) 9 ALD 43 Deputy President Hall said (at 46):

"Whether an applicant can be seen to have been 'substantially successful' involves a question of degree which, in my view, defies precise definition. FOI proceedings, by their nature, have as their object the gaining of access to information in documentary form in the possession of government: see s 3 of the Act. In bringing proceedings before the Tribunal, the applicant usually has no knowledge of what the allegedly exempt documents may contain. In most cases, the applicant can do no more than require the agency to justify its claims of exemption to the satisfaction of the Tribunal. Thus in considering whether an applicant has been 'substantially successful', the relevant question, to my mind, is how much information (that was previously denied to him) the applicant has succeeded in obtaining as a result of the proceedings before the Tribunal. The applicant's success in this re! gard is not necessarily measured by the number of documents or the number of pages or words released. Information varies in quality from the most mundane and inconsequential at one extreme to information of considerable commercial value or of great benefit to the general public at the other. In my view, therefore, there is both a quantitative and qualitative element in evaluating the extent to which the applicant has 'succeeded' in his application for review." (original emphasis)

Furthermore, the success or substantial success of an applicant in his or her application for review is to be determined having regard to the quantity or quality of the documentary information to which he or she is granted access consequential upon and by reason of that application for review, whether such access is granted before the Tribunal's hearing or decision on review, or as a consequence of the Tribunal's decision: Re Paterson and Department of Home Affairs and Environment (1985) 7 ALD 403 at 407-408; Re Hounslow and Department of Immigration and Ethnic Affairs (1985) 7 ALN N362 at N366.

12. In the present case the applicant, on 29 October 1996, applied to the Tribunal for review of the reviewable decision, dated 9 October 1996, whereby the applicant had been refused access, either wholly or partly, to some 13 documents (referred to as Documents A, B, C, D, E, F, G, H, I, J, K, L and M) comprising 30 folios. At a preliminary conference held by the Tribunal, on 28 January 1997, in relation to the applicant's application for review, the applicant withdrew his request for access to deleted material in Documents A, B, D, E, and F which in full comprised 6 folios. On 19 March 1997 the Tribunal, following an agreement reached between the applicant and the respondent, decided, pursuant to s.42C(2) of the AAT Act, that the applicant be granted access in full to Documents G, H, I, L and M which comprised 14 folios. On 22 June 1998 the Tribunal decided that

* Document C (comprising 4 folios - 2 original folios and 2 photocopies thereof) was wholly an exempt document;

* Document J (comprising 3 folios) was an exempt document but that access to a copy of that document, with specified exempt matter (comprising somewhat less than half of the total contents of that document) deleted, be granted to the applicant;

* Document K (comprising 3 folios) was an exempt document but that access to a copy of that document, with specified exempt matter (comprising somewhat more than half of the total contents of that document) deleted, be granted to the applicant.

13. As regards Documents A, B, D, E and F, the amount of deleted matter in each of those documents was very small, comprising merely the names and addresses of a small number of individuals. The names of the individuals concerned were already known to the applicant and the relevant addresses were either already known to the applicant or were readily available from the telephone directory. In those circumstances the Tribunal accepts the applicant's submission that his withdrawal of his request for access to that deleted matter in those documents was of no practical significance.

14. Documents G, H, I, L and M comprised four file notes and one memorandum written by a senior officer in the respondent's office in relation to the investigation of a complaint made to the respondent in relation to the applicant in his capacity as an officer of the Australian Taxation Office. Those documents, access to which was granted in full to the applicant by a consent decision of the Tribunal on 19 March 1997, were plainly of considerable interest and value to the applicant both generally and, more specifically, for the purpose of responding to the respondent's investigation of the complaint that had been made about him.

15. As regards Documents C, J and K, although the Tribunal decided on 22 June 1998 that Document C was wholly an exempt document, access to a substantial portion of each of Documents J and K was granted to the applicant pursuant to that decision of the Tribunal. Those documents were created by the person who had made the complaint to the respondent about the applicant and conveyed information to the respondent for the purpose of the investigation of that complaint. The information contained in those documents, access to which information was granted to the applicant, was also clearly of interest and value to the applicant (see paragraph 14 above).

16. In the Tribunal's opinion, by reason of the fact that access to the whole of Documents G, H, I, L and M, and to substantial portions of Documents J and K, was granted to the applicant as a consequence of his application to the Tribunal for review under s.55 of the FOI Act, the applicant was substantially successful, on a quantitative basis, in that application for review. The Tribunal is also of the opinion that, having regard to the interest and value to the applicant of the information contained in those documents, access to which information was granted to the applicant, he was substantially successful, on a qualitative basis, in his application for review.

17. Accordingly, the Tribunal finds that the applicant was substantially successful in his application for review, for the purposes of s.66(1) of the FOI Act, and that the Tribunal therefore has jurisdiction to decide whether it is appropriate to make a recommendation, under that subsection, to the Attorney-General that the applicant's costs in relation to the Tribunal review proceedings be paid by the Commonwealth.

Financial Hardship

18. Section 66(2)(a) requires the Tribunal to have regard to "the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant".

19. In his affidavit of 16 October 1998, referred to in paragraph 5 above, the applicant outlined, inter alia, the circumstances which he claimed were relevant to the issue of financial hardship. Paragraphs 1 and 2 of that affidavit state as follows:

"1. I have been employed as a public servant with the Australian Taxation Office for some 37 years. My children are all of age and self supporting ... my wife is employed ....

2. I have been advised by my solicitors ... that their costs in this Application for Review will exceed $20 000."

Paragraphs 3 and 4 deal with the applicant's income and assets. For reasons of privacy, the Tribunal will not state the details here. Suffice it to say that the applicant's income is, in the Tribunal's opinion, relatively high and his assets comprise a residence of moderate value, a car of relatively modest value, "other assets" (unspecified) of significant value and a not insignificant amount of cash at bank. No liabilities are mentioned in the affidavit. Paragraph 5 of the affidavit states:

"5. Having regard to my income, day to day living expenses, liabilities and assets, I can say that the payment of costs of $20 000 plus would cause me significant financial hardship. I would have to borrow to fund the payment."

In the written submissions filed with the Tribunal on 16 October 1998 on behalf of the applicant it is stated (in paragraph 58):

" ... the Applicant's costs are significant. Such costs if levied against an applicant with the assets, income, age and other circumstances of the Applicant would ... result in financial hardship to the Applicant. It would cause significantly delayed retirement plans and immediate financial detriment to the Applicant."

20. In the written submissions filed with the Tribunal on 19 November 1998 on behalf of the respondent it is relevantly stated:

"2. The Respondent does not dispute the truth of any of the matters set out in the Applicant's affidavit in relation to his income, assets and family circumstances.

...

13. The Applicant's statement of his financial position suggests that he is not remarkably affluent but that he has a considerably higher income than the average person. As well, his spouse is employed and he appears to own his own home as well as a motor vehicle and unspecified other assets. His capacity to raise the amount said to be required by his legal representatives, either by disposing of assets or borrowing, would be good.

14. The fact that the Applicant, in paying his costs, would be less able to pursue other objects (such as early retirement) does not amount to hardship ...

15. The Respondent does not consider that the Applicant would be put to hardship as a result of paying his costs. It was his choice to make a request and to pursue it as far as the Tribunal, and it was his choice to access a senior and expensive legal adviser to assist him. Many applicants are unrepresented in the Tribunal, which is equipped to deal with them. It is difficult to understand why the Respondent or the Commonwealth generally should compensate an experienced and well-informed person for choosing to be represented professionally."

21. The term "hardship" is defined in The Macquarie Dictionary as follows:

"1. a condition that bears hard upon one; severe toil, trial, oppression, or need. 2. an instance of this, something hard to bear."

In The New Shorter Oxford English Dictionary the definition of "hardship" is as follows:

"1 The quality of being hard to bear; painful difficulty. 2 Hardness of fate or circumstance; severe suffering or privation. Also, an instance of this. ..."

In Re Kabalan (1993) 113 ALR 330 the Federal Court of Australia (Gummow J) said (at 332):

"Any condition which presses with particular asperity upon a person may be described as a hardship."

Similarly, in Re Hounslow (above) the Tribunal, in the context of s.66(2)(a) of the FOI Act, said (at N 367):

" 'Hardship' is a strong word and in our view severe circumstances would need to be demonstrated before it became applicable."

In Re Paterson (No 2) (above) the Tribunal, again in the context of s.66(2)(a) of the FOI Act, said (at 238):

"... 'financial hardship' means hardship caused to the applicant by reason of the financial burden of being obliged to meet the costs of the application from its own resources. ... It is not enough ... for the applicant to assert that if it is obliged to meet its own costs, it will deplete the funds otherwise available to it to pursue its objects. Every successful applicant, no matter how wealthy, would suffer financial hardship on that basis."

Similarly, in Re Bailey and Commonwealth Tertiary Education Commission (1986) 12 ALD 165 the Tribunal, in the context of the discretionary power to remit a charge imposed in respect of a request for, or the provision of, access to a document under the FOI Act (see, now, s.29(5)(a) of the FOI Act), said (at 167):

"... financial hardship surely amounts to more than that a person, irrespective of his financial situation, has to meet a charge from his own resources."

22. In having regard to the "financial hardship" factor prescribed by s.66(2)(a) of the FOI Act, account must be taken of both the amount of the costs incurred by the applicant and the applicant's particular financial circumstances. In the present case the amount of costs incurred by the applicant, in relation to the Tribunal review proceedings - namely, in excess of $20 000, according to his affidavit - is substantial and the payment of those costs by him would impose a considerable financial burden upon him. On the other hand, the applicant's financial circumstances, as outlined in his affidavit, while not affluent, may fairly be described as at least comfortable. In the Tribunal's opinion the applicant's financial circumstances are sufficiently favourable for it reasonably to be said that he has the financial capacity to pay the abovementioned amount of costs without placing himself in a ! financially embarrassing situation or in financial difficulties. In other words, payment of those costs by him would not, to adopt Gummow J's words in Re Kabalan (above), press upon him with particular asperity or severity in a financial or pecuniary respect. Accordingly, in the Tribunal's opinion payment by the applicant of the abovementioned costs would not cause him financial hardship, within the meaning of s.66(2)(a) of the FOI Act.

Benefit to the general public

23. In Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301 the Federal Court of Australia (Beazley J) said (at 307):

"The Tribunal has consistently, and in my view correctly, accepted that the proper approach to the question of benefit to the general public is that stated in Cazalas v US Department of Justice (1983) 709 F 2d 1051 at 1053. In Cazalas, it was held that the question of benefit to the general public was concerned with benefits flowing from the fact that information previously withheld by the agency is now accessible to the community. In other words, the question is concerned with the consequences or result of the application for review, not with the Tribunal's reasons for decision: see also Re Lianos and Secretary, Department of Social Security (No 2) (1985) 9 ALD 43 at 48; Re Jacobs and Department of Defence (1988) 9 AAR 446 at 455."

In Re Lianos (No 2) (above) Deputy President Hall, after stating the principle accepted by Beazley J in Cashman (above), added (at 48):

"It follows that ... the Tribunal is not given the unpalatable task of assessing the extent to which its reasons for decision will be of benefit to the general public. ... The fact that a case is described as a 'test case' may, however, reflect the importance of and the potential public interest in the information to which access is sought."

He later went on to say (at 49):

"There is, in my view, a relevant benefit to the general public within the contemplation of the FOI Act when documents containing information with respect to issues of widespread public interest and concern are disclosed pursuant to the provisions of the Act. Such benefits may be intangible, but they are nonetheless real having regard to the stated object of the Act and the right to know which the Act has created."

24. The written submissions filed with the Tribunal on 16 October 1998 on behalf of the applicant addressed the issue of public benefit as follows:

"59 There will be benefit to the public from this decision as it clarified the rights of bodies and people claiming exemption under section 41 in relation to the personal affairs of people not party to the decision and it also considered the application of section 41(2), where an applicant stood in two positions, both as applicant and trustee.

60. Further, the release of the information is of benefit to the general public in the sense of ensuring a transparent and fair enquiry process by the Respondent, which has significant public duty in this regard, to enable an officer, such as the Applicant, to comment on matters under section 8(5) of the Ombudsman's (sic) Act which adversely affects him."

In his affidavit of 16 October 1998 the applicant stated:

"6. I made this Application for Review, solely to obtain access to documents which are relevant to allegations to the Respondent by the Party Joined, concerning me and which formed the basis for an unfavourable draft report prepared by the Respondent, to enable me to comment upon the report under section 8(5) of the Ombudsman's (sic) Act. That report has since the hearing in this matter been substantially re-drafted by the Respondent and the allegations made against me by the Party Joined found to have no substance. The documents obtained were relevant in allowing me to prepare for and assisted me in answering the issues raised in the Respondent's draft reports."

No other evidence regarding the issue of public benefit was provided to the Tribunal by or on behalf of the applicant.

25. It is clear from the abovequoted dicta in Cashman and Re Lianos (No 2) that the relevant question in this case, for the purpose of addressing the matter prescribed by s.66(2)(b) of the FOI Act, is whether the documentary information released by reason of the applicant's application for review will be of benefit to the general public - not whether the Tribunal's reasons for decision will be of benefit to the general public. Paragraph 59 of the applicant's submissions appears, therefore, to be misconceived. Even if the applicant's application for review created a "test case", the relevant question in relation to s.66(2)(b) would be the same, but the release of information as a result of a "test case" may be more likely, by virtue of the importance of, and public interest in, such information, to be of bene! fit to the general public.

26. It is necessary, therefore, for the Tribunal to consider whether the release of Documents G, H, I, L and M and of the non-exempt portions of Documents J and K, as a result of the applicant's application for review, will be of benefit to the general public.

27. Although the Tribunal is satisfied that the release of the abovementioned documents and portions of documents was of benefit to the applicant - chiefly in connection with his response to the respondent's investigation of the complaint that had been made about him - the question whether the release of that information will be of benefit to the general public is much more problematic. That information consisted of internal file notes and a memorandum created by a senior officer in the respondent's office for the purpose of investigating the complaint made to the respondent about the applicant, together with correspondence from the complainant to that officer providing further information for the purpose of that investigation. The complaint the subject of the investigation concerned the conduct of the applicant, a senior officer in the Australian Taxation Office, in relation to the financial affairs of! the applicant's elderly aunt. Such information cannot, in the Tribunal's opinion, be reasonably described as "information with respect to issues of widespread public interest and concern" (Re Lianos (No 2) (above), at 49).

28. As regards the applicant's submission that "the release of the information is of benefit to the general public in the sense of ensuring a transparent and fair enquiry process by the Respondent ...", the Tribunal of course accepts that it is in the public interest that the respondent's investigative processes are fair; but whether the release of the relevant information in this case will ensure or contribute to such procedural fairness in the respondent's investigative processes generally is somewhat speculative. Any connection between the release of that particular information and the effect of "ensuring a transparent and fair enquiry process by the respondent" is, in the Tribunal's opinion, too tenuous and remote for it to be said that the release of that information "will be of benefit to the general public" within the meaning of s.66(2)(b) of the FOI Act.

Commercial benefit to the applicant

29. In his affidavit of 16 October 1998 the applicant asserted (in paragraph 7):

"I will derive no commercial benefit from having made this Application to the Tribunal."

The respondent did not dispute this but nevertheless submitted that the applicant's motive in requesting access to the information was to rectify errors alleged to be contained in the respondent's draft reports resulting from the investigation of the complaint about him and, in that sense, to vindicate his professional reputation and to secure and advance his career with his employer.

30. In the Tribunal's opinion, whether the applicant will ultimately derive any commercial benefit, in the sense of professional or career advancement, as a result of the release of the relevant information to him is far too speculative to be considered for the purposes of applying s.66(2)(c) of the FOI Act. The Tribunal notes, furthermore, that in Re Toomer and Department of Primary Industries and Energy (1991) 22 ALD 164 Senior Member Dwyer said (at 182):

"I consider that ... proceedings such as those before the Tribunal on review, to restore personal and professional reputation are not to be characterised as proceedings of commercial benefit to the applicant, even though the findings in them may ultimately play some part in obtaining some form of damages or compensation for (the applicant) in respect of his loss of reputation and career."

Accordingly, the Tribunal is not satisfied that the release of the relevant information to the applicant "will be of commercial benefit" to him, within the meaning of s.66(2)(c) of the FOI Act.

Reasonableness of the reviewable decision

31. Paragraph (d) of s.66(2) of the FOI Act requires the Tribunal to have regard to "the reasonableness of the decision reviewed by the Tribunal." It has been held by the Tribunal and by the Federal Court of Australia that the "decision" referred to in s.66(2)(d) is the decision of the relevant agency that the Tribunal has the jurisdiction to review: see Re Paterson (No 2) (above), at 240; Cashman (above), at 306-307, 309. That decision is, except where the initial decision was made by the responsible Minister or by the principal officer of the relevant agency, the decision made on internal review, pursuant to s.54(1) of the FOI Act. In the present case, the relevant decision to be considered for the purpose of applying s.66(2)(d) of the FOI Act is the reviewable decision, dated 9 October 1996, referred to! in paragraph 1 above.

32. It is implicit in the immediately foregoing remarks that the matter referred to in s.66(2)(d) of the FOI Act does not include any decision or conduct of the respondent prior or subsequent to the reviewable decision. Such prior or subsequent decision or conduct may, however, be a relevant consideration to be taken into account for the purpose of exercising the general discretion conferred by s.66(1) of the FOI Act (see paragraphs 8 and 9 above).

33. In Re Sullivan and Department of Industry, Science and Technology and Australian Technology Group Pty Ltd Unreported, Decision No 10889B, 20 March 1998, the Tribunal, for the purpose of applying s.66(2)(d) of the FOI Act, said (at p.14):

"It is ... necessary to evaluate the extent to which it was reasonable for the (respondent) to claim exemption for the documents it did when it made the reviewable decision. In this respect, regard may be had to the grounds upon which the claims of exemption were made."

34. In the reviewable decision of 9 October 1996 in the present case, the claims of exemption were as follows:

* Documents A, B, D, E and F - certain matter, comprising the names and addresses of individuals, in those documents was claimed to be exempt under s.41(1) of the FOI Act on the ground that its disclosure would involve the "unreasonable disclosure of personal information";

* Documents C, J and K - these documents, which were created by the person who had made the complaint to the respondent about the applicant and conveyed information to the respondent for the purpose of the investigation of that complaint, were claimed to be wholly exempt under s.40(1)(d) of the FOI Act on the ground that their disclosure "could reasonably be expected to have a substantial adverse effect on the conduct of the operations of (the respondent) agency";

* Documents G, H, I, L and M - these documents, which comprised internal file notes and a memorandum written by a senior officer of the respondent agency in relation to its investigation of the complaint made about the applicant, were claimed to be wholly exempt under s.36(1) of the FOI Act on the ground that their disclosure "would disclose opinions, advice and recommendations prepared in the course of (the respondent agency's) deliberative processes".

35. The reasonableness, or otherwise, of the reviewable decision is, for the purposes of s.66(2)(d) of the FOI Act, to be judged objectively - that is, according to the standards of a reasonable person. The question is not whether the reviewable decision was right or wrong, but rather whether or not there was a reasonable basis for making it. The Tribunal adopts the following remarks of Deputy President Thompson in Re Chan and Department of Immigration and Ethnic Affairs (No 2) (1985) 8 ALN N52 at N53:

"It must be stressed that the test is the reasonableness of the decision, not whether the Tribunal would have decided that it was 'the correct or preferable decision'. The very fact that access has eventually been given to the documents to which the application related raises at least a possibility that the decision might not have been regarded by the Tribunal as the correct or preferable one. But implicit in para (d) of s 66(2) is recognition by parliament that that is not necessarily inconsistent with the decision having been reasonable."

36. As regards Documents A, B, D, E and F, the reviewable decision provided reasons for claiming that the relevant matter was exempt essentially on the grounds that it was personal information and that, in the circumstances, the public interest in protecting the privacy of the relevant individuals outweighed the public interest in disclosing that information. In the Tribunal's opinion those grounds were plausible and the reviewable decision, in so far as it related to the claims of exemption in respect of the matter in Documents A, B, D, E and F, was reasonable.

37. As regards Documents G, H, I, L and M, the reviewable decision provided reasons for claiming that those documents were wholly exempt essentially on the grounds that they were internal working documents and that the public interest in ensuring the proper and effective functioning of the respondent agency, which militated against their disclosure, outweighed the public interest in their disclosure. In the Tribunal's opinion those grounds were plausible and the reviewable decision, in so far as it related to the claims of exemption in respect of Documents G, H, I, L and M, was reasonable. The fact that the respondent subsequently changed its view and agreed to release those documents to the applicant does not mean that the reviewable decision should be regarded as unreasonable to that extent, given that the public interest factors militating for and against disclosure of such internal working documents are matters i! n respect of which reasonable minds may legitimately differ.

38. As regards Documents C, J and K, the reviewable decision provided reasons for claiming that those documents were wholly exempt essentially on the grounds that their disclosure could reasonably be expected to have a substantial adverse effect on the conduct of the operations of the respondent agency and that the public interest in promoting the effective functioning of that agency, by preserving the privacy and confidentiality of information received from complainants so as not to discourage the making of complaints and the provision of information by complainants, outweighed the public interest in disclosure of those documents. In the Tribunal's opinion those grounds were plausible and the reviewable decision, in so far as it related to the claims of exemption in respect of Documents C, J and K, was reasonable. The fact that the Tribunal, in its decision of 22 June 1998, decided that substantial portions of Docum! ents J and K could be disclosed to the applicant does not detract from its opinion that the reviewable decision, as regards those documents, was reasonable at the time it was made.

39. The Tribunal is of the opinion, therefore, that the reviewable decision of 9 October 1996 was, in its entirety, a reasonable decision, for the purposes of s.66(2)(d) of the FOI Act.

Other relevant considerations

40. The applicant submitted that the Tribunal, for the purpose of exercising the general discretion conferred by s.66(1) of the FOI Act, should have regard to the conduct of the respondent in this matter. The applicant submitted that, by virtue of the respondent's conduct, the Tribunal review proceedings were significantly more protracted and more costly than was necessary. In this connection the applicant points, in particular, to the following aspects of the respondent's conduct:

* on or about 7 March 1997 - some 12 days before the scheduled date of the Tribunal hearing - the respondent's solicitors notified the applicant and the Tribunal that the respondent "was not pursuing any of the exemption items claimed in the proceedings";

* the respondent "failed to give due consideration to section 41 (of the FOI Act) and reverse FOI procedure, resulting in substantial costs and delays in proceedings";

* the respondent failed to act in accordance with s.27A of the FOI Act, as a result of which a third party was belatedly joined as a party to the proceedings and the matter was "delayed for a period of some 15 months before it ultimately came to a hearing";

* the respondent's failure to act in accordance with s.27A caused the Tribunal proceedings to be more protracted and more costly than they would otherwise have been;

* the respondent failed to appear at the hearing thereby causing the hearing to be "significantly longer" than would otherwise have been the case.

41. The respondent's submissions regarding its conduct in this matter were as follows:

"22. In the Respondent's submission, its actions in relation to the handling of the FOI application were at all stages reasonable. It took a properly cautious approach to disclosure which it considered was consistent with the requirements of the FOI Act and which reflected the public policy underlying its role. When it reached the view that particular exemptions could not continue to be claimed in the circumstances, it consented to disclosure. Its decision not to continue to be represented reflected its desire to reduce inconvenience, expense and delay to a minimum not only for itself but for the Tribunal and all parties. As noted in the previous paragraph, one of its officers gave evidence about his dealings with the Party Joined.

23. In the Respondent's submission, it ceased to be actively involved well prior to the actual hearing and left the matter to the Tribunal to determine having regard to the views of the Applicant and the Party Joined. Its only involvement was to argue that the Party Joined should be limited in relation to the exemptions she could claim - that involvement was to the advantage of the Applicant.

24. The Respondent did not seek to exempt documents C, J and K under section 41 at the primary decision or internal review stage. While such a claim would have been possible and would have been partially successful, the Respondent considered the whole of each of the documents was exempt under paragraph 40(1)(d) of the FOI Act. While it was aware that the documents contained some personal information, it apparently took the view that claiming an exemption under section 41 would not be necessary. Thus, when it vacated the claim for exemption under paragraph 40(1)(d), that created the possibility that documents containing personal information might be disclosed. It was at that point (in February 1997), that the Party Joined was contacted and given the opportunity to become involved in the proceedings. In the Respondent's submission, this dispute between the Applicant and the Party Joined was simply one more in a series which relate to matters dealt with in the Res! pondent's investigation.

25. While, as events transpired, it may have been preferable to have consulted the Party Joined in terms of section 27A of the FOI Act at an earlier stage, the Respondent did not consider this necessary. The Respondent notes that, had it contacted the Party Joined at an earlier stage, it may have triggered review rights by the Party Joined as well as by the Applicant. Thus, the Respondent's actions in not claiming exemption under section 41 earlier and in not consulting the Party Joined may not have had any effect on the eventual contest between the Applicant and the Party Joined.

26. The Respondent rejects the assertion that the hearing was longer than it would have been had it appeared. As noted above, its object was to reduce the length and expense of the proceedings. Not having claimed that the documents were exempt under section 41, it was not in a strong position to assist the Tribunal."

42. In Re Paterson (No 2) (above) Deputy President Hall said (at 237):

"Section 3(2) of the (FOI) Act directs that any discretion conferred by the Act is to be exercised as far as possible to facilitate and promote, promptly and at the lowest cost, the disclosure of information. It follows, in my view, that, for the purposes of s.66 of the FOI Act, conduct on the part of an agency that has caused unreasonable delay and unnecessary costs in obtaining the disclosure of information to which an applicant was entitled under the Act, may properly be taken into account ..." (original emphasis).

These remarks were quoted with approval by the Federal Court in Cashman (above), at 310 - 311.

43. In order properly to consider whether the respondent agency's conduct "caused unreasonable delay and unnecessary costs" to the applicant in the Tribunal review proceedings, it is helpful to outline a chronology of the relevant events:

* 29 October 1996 - the applicant lodged with the Tribunal an application for review of the reviewable decision refusing access, either wholly or partly, to Documents A, B, C, D, E, F, G, H, I, J, K, L and M.

* 28 January 1997 - a preliminary conference was held following which the applicant withdrew his request for access to the deleted material in Documents A, B, D, E and F.

* 11 February 1997 - the applicant's application for review was listed for hearing by the Tribunal on 19 and 20 March 1997.

* 24 February 1997 - the Tribunal made a consent decision, pursuant to s.42C(2) of the AAT Act, granting to the Applicant access to Documents G, H, I, L and M, with exempt matter deleted.

* 7 March 1997 - the respondent's solicitors informed the applicant and the Tribunal that the respondent "will not be pursuing any of the exemption claims lodged in the ... proceedings", but that, "in the case of Documents C, J and K there is a third party who continues to object to the release of those documents". On the same date the respondent's solicitors informed the third party that the respondent "had decided not to pursue any of the exemption claims currently before the Administrative Appeals Tribunal" and advised her that, if she wished to maintain her objection to the release of Documents C, J and K, she should contact the Tribunal immediately.

* 19 March 1997 - the Tribunal made a consent decision, pursuant to s.42C(2) of the AAT Act, granting to the applicant access in full to Documents G, H, I, L and M. The Tribunal declined to grant access to Documents C, J and K in order to give to the third party the opportunity to be heard in relation to the release of those documents. On the same date a Deputy Registrar of the Tribunal informed the third party of the position in respect of Documents C, J and K and advised her that, if she wished to maintain her objection to the release of those documents, she "must contact the Tribunal and apply to become a party to these proceedings".

* 25 March 1997 - the third party informed the Tribunal that she maintained her objection to the release of Documents C, J and K and applied to be joined as a party to the Tribunal proceedings.

* 17 April 1997 - the Tribunal was notified both by the applicant's solicitors, and by the respondent's solicitors, that they did not object to the third party being joined as a party to the proceedings.

* 27 May 1997 - the Tribunal ordered that the third party be made a party to the proceedings, "limited until further order to argument and evidence on the exemption provided by section 41 of the Freedom of Information Act 1982 ".

* 30 June 1997 - a preliminary conference was held following which the Tribunal made certain directions, including a direction deleting the abovementioned condition on which the third party had been joined as a party to the proceedings, and the matter was listed for a hearing by the Tribunal in October 1997.

* 26 August 1997 - the respondent's solicitors informed the Tribunal that they disputed the scope of the exemption under s.41(1) of the FOI Act claimed by the third party ("party joined") in relation to Documents C, J and K, and sought an urgent directions hearing for the purpose of making submissions on that issue ("the preliminary issue").

* 5 September 1997 - a directions hearing was held by the Tribunal at which directions were made that, inter alia, the parties file written submissions in relation to the preliminary issue. Subsequently, both the respondent's solicitors and the solicitors for the party joined filed detailed written submissions on that issue. The applicant's solicitors did not make separate written submissions but, instead, generally supported the respondent's submissions.

* 23 October 1997 - the respondent's solicitors informed the Tribunal that they proposed not to appear at the hearing on the preliminary issue listed for 24 October 1997 and that they relied on their written submissions in relation to that issue. They also advised the Tribunal that the respondent had abandoned its earlier claim that Documents C, J and K were exempt under s.40(1)(d) of the FOI Act and no longer claimed that those documents were exempt documents under that Act, and, in those circumstances, sought "leave to be excused from" the hearing on the substantive issue in this matter.

* 24 October 1997 - the hearing on the preliminary issue was held by the Tribunal, at which the applicant and the party joined appeared. The Tribunal made directions resolving the preliminary issue.

* 24 November 1997 - the Tribunal directed that the hearing on the substantive issue be listed in March 1998 and made other related directions.

* 27 March 1998 - the hearing by the Tribunal on the substantive issue was commenced and was resumed on 9 April 1998. At that hearing the applicant and the party joined appeared; the respondent did not appear.

* 22 June 1998 - the Tribunal made a decision that Document C was wholly exempt under s.41 of the FOI Act and that Documents J and K were partly exempt under that section.

44. In the light of the chronology of events outlined in paragraph 43, the Tribunal makes the following comments on the points listed in paragraph 40 above on which the applicant relies in support of his general submission that the respondent's conduct caused the Tribunal review proceedings to be significantly more protracted and more costly than was necessary.

45. The respondent agency's change of position, on or about 7 March 1997, whereby it ceased to pursue any of the exemption claims formerly made by it, occurred within 6 weeks after the first preliminary conference and some 12 days before the scheduled hearing date. In the Tribunal's opinion this conduct does not constitute unreasonable delay; nor is it a case of a decision to grant access being made "at the eleventh hour" (cf Re Rae and Department of Arts, Heritage and Environment (1985) 7 ALD 449 at 452). In Re Rae Deputy President Todd said (at 454):

"What is a reasonable time before a hearing for an agency to concede access to documents without incurring the risk of a recommendation under s 66 cannot be made the subject of a hard and fast rule ... . In broad terms however a concession of access made later than a week before a hearing date must assuredly be at risk of a recommendation as to the payment of costs being made. What I can say is that in this case the concession was not made until near enough to the last possible moment."

In the present case the respondent's concession was timely and is not deserving of criticism.

46. The applicant's submissions that the respondent failed to act in accordance with s.27A of the FOI Act and to follow "reverse FOI procedure", thereby causing substantial costs and delays, are also, in the Tribunal's opinion, without substance. Section 27A(1) requires an agency, before making a decision to grant access to a document containing personal information, to give to a person to whom the personal information relates a reasonable opportunity to make submissions in support of a contention that the document is exempt under s.41 of the FOI Act. On or about 7 March 1997, when the Tribunal was seised of the matter and the respondent had decided not to maintain its claims of exemption in respect of the relevant documents, the respondent notified the party joined of its change of position and advised her to contact the Tribunal immediately if she wished to maintain her objection to the release of Docume! nts C, J and K. In those circumstances, the respondent was not in breach of s.27A(1) of the FOI Act if only because, no decision having ever been made by it to grant access to Documents C, J or K, that subsection did not arise.

47. The respondent's reviewable decision of 9 October 1996, refusing access to the applicant to Documents C, J and K, was based on a claim of exemption under s.40(1)(d) of the FOI Act, and not under s.41(1) of that Act. That decision was, as already found by the Tribunal, reasonable. There was no obligation on the respondent to claim exemption in respect of those documents under s.41(1) of the FOI Act. Section 27A imposes no such obligation and, in any event, as the Tribunal has already stated, that section never arose in this case because both the primary decision of 31 July 1996 and the reviewable decision of 9 October 1996 refused access to Documents C, J and K.

48. The respondent's advice to the party joined on 7 March 1997 to contact the Tribunal immediately if she wished to maintain her objection to the release of Documents C, J and K was both appropriate and timely. It is true that, pursuant to that advice, the party joined successfully applied to the Tribunal for joinder, and that resulted in substantially protracting the proceedings so that the substantive hearing did not commence until 27 March 1998, and thereby substantially increasing the applicant's costs in those proceedings, but responsibility for those consequences cannot be sheeted home to the respondent. Instead, those consequences - unfortunate though they were for the applicant - flowed from the party joined properly being made a party to the Tribunal review proceedings and exercising her right to procedural fairness in those proceedings.

49. The Tribunal notes that, in relation to the preliminary issue which subsequently arose regarding the scope of the exemption under s.41(1) of the FOI Act that could properly be claimed by the party joined in relation to Documents C, J and K, the respondent, notwithstanding that it had long since abandoned its claim for exemption in relation to those documents, made lengthy written submissions to the Tribunal in support of the contention that the scope of the s.41(1) exemption claimable by the party joined should be very narrow. Those submissions were favourable to the applicant's position in relation to that issue and, in fact, were adopted by the applicant without any elaboration or addition. The provision of those submissions by the respondent, therefore, made it unnecessary for the applicant's solicitors to make separate written submissions on that issue, thereby saving the applicant additional costs.

50. Finally, as regards the applicant's submission that the respondent's non-appearance at the hearing on the substantive issue caused that hearing to be significantly longer than would otherwise have been the case, the Tribunal is not satisfied that that submission has substance. The applicant asserts that the increased duration of the hearing was "due to the fact that the documents in issue were not available to the applicant and the respondent was not available to cross-examine", thereby necessitating a lengthier cross-examination of the party joined than would otherwise have been the case. In the first place, it was the respondent's prerogative not to appear at the hearing. Furthermore, it had, as a matter of courtesy, previously sought the Tribunal's leave "to be excused from" the hearing, on the basis that it was no longer claiming that Documents C, J and K were exempt documents under the FOI Act, and would ab! ide by the Tribunal's decision following the hearing of the dispute between the applicant and the party joined regarding that substantive issue. The Tribunal has no criticism whatever of the respondent's conduct in that regard. As respects cross-examination by the applicant of the respondent's officers and the party joined, the Tribunal accepts that such cross-examination may well have been more accessible and efficient if the respondent had appeared. It was, however, open to the applicant to request the Tribunal to summon officers of the respondent to appear and give evidence (if only by telephone) at the hearing before the Tribunal. In this connection the Tribunal notes that, pursuant to a summons issued at the request of the applicant's solicitors, an officer in the respondent's Perth office appeared and gave evidence at the resumed hearing before the Tribunal on 9 April 1998, but that no request was made to the Tribunal by, or on behalf of, the applicant to summon any other officer of the respondent ! (such as the officers involve!d in the decision-making process under the FOI Act in relation to Documents C, J and K) to give evidence at the hearing. In those circumstances, the Tribunal is not satisfied that the respondent's non-appearance at the hearing necessarily caused that hearing to be significantly longer than would otherwise have been the case; nor does the Tribunal regard the respondent's conduct in that respect to have been unreasonable or deserving of any other criticism.

Conclusion

51. Having regard to the mandatory considerations prescribed by s.66(2) of the FOI Act and the Tribunal's finding in relation to each of those considerations, namely that:

* it is satisfied that payment of the applicant's costs would not cause him financial hardship;

* it is not satisfied that the decision of the Tribunal on review will be of benefit to the general public;

* it is not satisfied that the decision of the Tribunal on review will be of commercial benefit to the applicant; and

* it is satisfied that the reviewable decision of 9 October 1996 was reasonable;

the Tribunal concludes that, on balance, those considerations do not support an exercise of the discretion conferred by s.66(1) of the FOI Act that would be favourable to the applicant. In addition, having regard to other general relevant considerations - in particular, the conduct of the respondent in relation to the applicant's application to the Tribunal for review of the reviewable decision and whether that conduct was unreasonable or caused unnecessary delay and costs to the applicant - the Tribunal also concludes that those considerations, similarly, do not make it appropriate to exercise the s.66(1) discretion in the applicant's favour.

Decision

52. For the above reasons, the Tribunal declines to make a recommendation under s.66(1) of the FOI Act that the applicant's costs in relation to the review proceedings before the Tribunal be paid by the Commonwealth.

I certify that this and the 25 preceding pages are a true copy of the decision and reasons for decision herein of Associate Professor S D Hotop, Senior Member

Signed: ..............Catherine Osborn...................

Associate

Date/s of Hearing N/A

Date of Decision 14 January 1999

Counsel for the Applicant Mr J Pickering

Solicitor for Applicant Freehill Hollingdale & Page

Counsel for the Respondent -

Solicitor for the Respondent Australian Government Solicitor