Brown and Commonwealth Ombudsman [1999] AATA 559 (30 July 1999)

Last Updated: 5 August 1999

DECISION AND REASONS FOR DECISION [1999] AATA 559

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/456

GENERAL ADMINISTRATIVE DIVISION )

Re GRACE ROSEMARY BROWN

Applicant

And COMMONWEALTH OMBUDSMAN

Respondent

DECISION

Tribunal Associate Professor S D Hotop, Senior Member

Date 30 July 1999

Place Perth

Decision The Tribunal sets aside the decision under review, being the decision of the authorised officer of the respondent dated 24 August 1998, and, in substitution therefor, decides that: (a) Documents A and B are exempt documents under s36(1) of the Freedom of Information Act 1982 ("FOI Act"), but that purely factual material contained in those documents does not constitute exempt matter and was properly disclosed to the applicant pursuant to the purported decision of the authorised officer of the respondent made on 18 December 1998; (b) Document C is an exempt document under ss36(1) and 41(1) of the FOI Act but that, pursuant to s22(1) of that Act, access to a copy of that document be granted to the applicant, should she so wish, with the following exempt matter deleted - namely, the whole of the contents of that document with the exception of: that part of Document C containing the "chronology of events" on pp 5, 6 and 7 thereof; and those parts of pp 2, 3, 4, 5, 6, 7, 8 and 9 of Document C which are quoted in parts of Document B (namely, File C/94/15212, Part 5, folios 109-102) which were disclosed under the FOI Act to the applicant pursuant to the abovementioned purported decision of 18 December 1998.

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

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION - exempt documents - applicant complained to Ombudsman about conduct of Commonwealth officer - Ombudsman prepared draft reports and received written submissions from officer's solicitors - whether draft reports and submissions internal working documents - whether disclosure contrary to public interest - whether documents contained purely factual material - whether documents contained personal information - whether disclosure would be unreasonable - public interest considerations favouring disclosure and non-disclosure of documents - disclosure of exempt documents with deletion of exempt matter

Freedom of Information Act 1982 ss3, 11, 22, 36, 40(1)(d), 41, 54(1), 55(1), (2), (3), 56(1), (5), 58(1), (2), 61(1)

Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257

Harris v Australian Broadcasting Corporation (1983) 50 ALR 551

Harris v Australian Broadcasting Corporation (1984) 1 FCR 150

Re Kamminga and Australian National University (1992) 26 ALD 585

Kavvadias v Commonwealth Ombudsman (1984) 2 FCR 64

Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112

Re Waterford and Department of the Treasury (No. 2) (1984) 5 ALD 588

REASONS FOR DECISION

30 July 1999 Associate Professor S D Hotop, Senior Member

1. On 13 November 1998 Grace Rosemary Brown ("the applicant") lodged with the Tribunal an application for review of a decision described as "Deemed refusal of request for internal review lodged 28/8/98".

2. The parties agreed that the Tribunal should decide this matter "on the papers" without holding a hearing of the proceeding. The Tribunal agreed to follow that course and, for that purpose, gave to each party the opportunity to make written submissions. In making its decision in this matter, the Tribunal has had regard to:

* the documents ("T documents") furnished by the Commonwealth Ombudsman ("the respondent") pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act");

* a copy of the "unedited" documents the subject of the applicant's request for access under the Freedom of Information Act 1982 ("the FOI Act"), and a copy of those documents with deletions of allegedly exempt matter, lodged by the respondent on 20 April 1999; and

* the written submissions filed by the applicant on 24 March 1999, 6 April 1999 and 16 April 1999, and the written submissions filed by the respondent on 15 April 1999.

The Factual Background

3. The background facts, about which there is no dispute between the parties and as found by the Tribunal on the basis of the T documents and the other documents before it, are as follows.

4. On 7 December 1994 the applicant wrote to the respondent's Perth office and made a complaint, pursuant to s7 of the Ombudsman Act 1976, in relation to action taken by an officer ("the ATO officer") of the Australian Taxation Office ("ATO"). The respondent thereupon conducted an investigation under that Act in relation to the ATO officer's action the subject of the applicant's complaint.

5. In the course of the abovementioned investigation Mr P Haggstrom, Special Tax Adviser in the respondent's Sydney office, wrote to the Commissioner of Taxation, by letter dated 9 May 1995, regarding the applicant's abovementioned complaint. That letter contained a statement of the factual background to the complaint, a discussion of the issues raised thereby, and a summary of Mr Haggstrom's "tentative conclusions" arising out of the investigation of the complaint. The letter concluded with an invitation to the Commissioner (and to the ATO officer the subject of the investigation) to comment on the contents of the letter.

6. By letter dated 8 December 1995 the ATO officer's solicitors wrote to the respondent commenting at length on the contents of Mr Haggstrom's letter of 9 May 1995.

7. The respondent subsequently prepared a "Draft Report under section 15 of the Ombudsman Act in relation to a Complaint by Mrs G R Brown", dated "December 1996".

8. By letter dated 2 December 1996 the respondent informed the Commissioner of Taxation that a copy of the abovementioned "draft report" had been sent to the ATO officer's solicitors for comment and implied that a copy would in due course be given to the Commissioner for comment.

9. A final report under s15 of the Ombudsman Act in relation to the applicant's complaint was made by the respondent on 28 January 1999.

10. In the meantime, by letter dated 23 July 1998 to the respondent, the applicant requested access, under the FOI Act, to certain documents. It is common ground that those documents comprised:

* Mr Haggstrom's letter of 9 May 1995 (referred to in paragraph 5 above) ("Document A");

* the letter of the ATO officer's solicitors, dated 8 December 1995 (referred to in paragraph 6 above) ("Document C");

* the respondent's letter, dated 2 December 1996, (referred to in paragraph 8 above) and the respondent's "draft report", dated December 1996 (referred to in paragraphs 7 and 8 above) ("Document B").

11. The applicant's request for access also referred to the respondent's "final report" in the mistaken belief that such a report had been completed. As mentioned in paragraph 9 above, the respondent's final report was not made until 28 January 1999. The Tribunal understands that a copy of that final report has since been released to the applicant without any deletions and, accordingly, it is not necessary for the Tribunal to consider that report for the purpose of the present application for review.

12. By letter dated 24 August 1998 an authorised officer of the respondent informed the applicant that she had decided to refuse to grant to the applicant access to Documents A, B and C under the FOI Act on the ground that those documents were wholly exempt documents under ss36, 40(1)(d) and 41 of that Act. As regards Document C, the officer also relied on s37(2)(a) of the FOI Act in support of her view that that document was an exempt document.

13. By letter dated 28 August 1998 the applicant requested an internal review of the decision of 24 August 1998 to refuse to grant access to Documents A, B and C.

14. By letter, dated 29 September 1998, to the applicant an officer of the respondent acknowledged the applicant's request for an internal review and advised her that she "should hear of a decision by 5 October 1998".

15. On 13 November 1998 the applicant, who was still awaiting notification of the internal review decision, lodged with the Tribunal an application for review of a decision described as "Deemed refusal of request for internal review lodged 28/8/98".

16. By letter dated 18 December 1998 an authorised officer of the respondent informed the applicant that, following her request for an internal review of the decision of 24 August 1998 refusing to grant access to the relevant documents, he had decided to grant access, with deletions, to Documents A and B but that he had decided to refuse access to any part of Document C. As regards Documents A and B, the officer's decision that parts of those documents be deleted was based on the ground that those parts contained exempt matter under ss36, 40(1)(d) and 41 of the FOI Act, except in the case of one part of Document A where the decision to delete that part was based on the ground that it was irrelevant to the applicant's request for access. As regards Document C, the officer's decision to refuse access was based on the ground that that document was wholly an exempt document under ss36, 40(1)(d) and 41 of the FOI Act.

The Legislation

17. The relevant provisions of the FOI Act are as follows:-

"Object

3.(1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:

(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and

(c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

...

Right of access

11. (1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

(2) Subject to this Act, a person's right of access is not affected by:

(a) any reasons the person gives for seeking access; or

(b) the agency's or Minister's belief as to what are his or her reasons for seeking access

...

Deletion of exempt matter or irrelevant material

22. (1) Where:

(a) an agency or Minister decides:

(i) not to grant a request for access to a document on the ground that it is an exempt document; or

(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(i) would not be an exempt document; and

(ii) would not disclose such information; 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.

...

PART IV - EXEMPT DOCUMENTS

...

Internal working documents

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.

(6) This section does not apply to:

(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;

(b) reports of prescribed body or organization established within an agency; or

(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.

...

Documents concerning certain operations of agencies

40. (1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;

(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;

(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or

(e) have a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations

(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

Documents affecting personal privacy

41. (1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

(2) Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.

...

PART VI - REVIEW OF DECISIONS

Internal review

54. (1) Subject to subsection (1A), where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency, being:

(a) a decision refusing to grant access to a document in accordance with a request; or

...

the applicant may, by application in writing to the agency accompanied by any application fee in respect of the application, request a review of the decision.

...

Applications to Administrative Appeals Tribunal

55. (1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:

(a) a decision refusing to grant access to a document in accordance with a request; or

(aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or

...

(2) Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.

(3) Subsection (2) does not prevent an application to the Tribunal in respect of a decision where:

(a) the person concerned has applied under section 54 for a review of the decision;

(b) a period of 30 days has elapsed since the day on which that application was received by or on behalf of the agency concerned; and

(c) he has not been informed of the result of the review;

and such an application to the Tribunal may be treated by the Tribunal as having been made within the time allowed by subsection (4) if it appears to the Tribunal that there was no unreasonable delay in making the application to the Tribunal.

...

Application to Tribunal where decision delayed

56. (1) Subject to this section, where:

(a) a request has been made to an agency or Minister in accordance with section 15; and

(b) the period of 30 days, in relation to the request, mentioned in paragraph 15(5)(b), or that period as extended under subsection 15(6), has expired since the day on which the request was received by or on behalf of the agency or Minister; and

(c) notice of a decision on the request has not been received by the applicant;

the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 55, be deemed to have made, on the last day of that period, a decision refusing to grant access to the document.

...

(5) Where, after an application has been made to the Tribunal by virtue of this section but before the Tribunal has finally dealt with the application, a decision is given, other than a decision:

(a) to grant, without deferment, access to the document in accordance with the request; or

(b) to amend or annotate the record of personal information to which the application relates;

the Tribunal may treat the proceedings as extending to a review of that decision in accordance with this Part.

...

Powers of Tribunal

58. (1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.

(2) Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.

...

Onus

61. (1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.

...".

The Submissions

18. The respondent lodged with the Tribunal detailed written submissions to the effect that each of Documents A, B and C was an exempt document under ss36, 40(1)(d) and 41 of the FOI Act. The applicant lodged with the Tribunal written submissions which did not directly address the issue of whether each of Documents A, B and C was an exempt document under the FOI Act, but which indicated that the applicant was content to leave the consideration of that issue to the Tribunal and to abide by the Tribunal's determination.

Consideration of Submissions and Issue

Is each of Documents A, B and C an exempt document under s36 of the FOI Act?

19. The respondent's submissions in relation to this matter were as follows:-

"11. The Respondent submits that documents A and B fall squarely within the class specified in paragraph 36(1)(a) because they contain the tentative opinions of officials, expressed in documentary form for the purpose of seeking comments from the Commissioner of Taxation and those of his officers who might be subject to criticism in a report by the Respondent. Under subsection 8(5) of the Ombudsman Act 1976, the Respondent is required, before making an express or implied criticism, to afford a person likely to be subject to criticism an opportunity to make submissions

12. The Respondent submits that Document C also falls into the class described by paragraph 36(1)(a) because it contains advice or the product of consultation with one of the Commissioner's officers. The Respondent had regard to that advice and those consultations when preparing a report under section 15 of the Ombudsman Act.

13. The Respondent submits that none of the material exempted is excluded from the operation of section 36 by either:

* subsection 36(5) of the FOI Act, in that the Respondent's tentative opinions could not be said to be purely factual; or

* paragraph 36(6)(c) of the FOI Act, in that the material in Documents A and B is not a record of a decision, but an expression of a tentative opinion and Document C is submissions related to the formation of the Ombudsman's opinion.

14. The Respondent submits that disclosure would be contrary to the public interest in terms of paragraph 36(1)(b). The Respondent has taken into account the public interest factors in favour of disclosure:

* the general public interest implicit in the FOI Act in providing public access to information about the processes of government agencies and the effectiveness of those processes; and

* the specific public interest in giving the Applicant access to as much information as reasonably possible about the Respondent's investigation of her complaint to enable her to understand the reasons for the opinion eventually reached.

15. The Respondent considers, however, that the weight of these factors is overwhelmed by:

* the public interest, as expressed in subsection 8(2) of the Ombudsman Act and in the stringent secrecy provisions in section 35 of that Act, in maintaining the privacy of the Respondent's investigations. The fact that investigations are conducted in private enables them to proceed as fairly and efficiently as possible with the Ombudsman forming tentative views about an action subject to investigation and maintaining, revising or discarding those views as further information comes to light;

* the legislative scheme established by subsection 8(5) and sections 15, 16, 17, 19 and 35A of the Ombudsman Act. Those provisions permit the disclosure of opinion adverse to a person if that person has been given the opportunity to make submissions. In the present case, those submissions were made and led to the Respondent altering the opinion tentatively held and expressed in the draft reports. It would defeat the object of this legislative scheme if the Applicant were to gain access to material containing tentative opinions about the investigation up to the point where the draft reports were issued when, on further investigation, those opinions were altered. In fact, the Respondent's final report makes it clear that the earlier drafts ´can now be set aside';

* the unfairness [to the ATO officer] and the ATO and the damage to their reputations that would result from the disclosure of criticism, in a document that might be construed as having some authority, where that criticism has not been substantiated. Criticism by a body such as the Ombudsman; indeed as was noted by Einfeld J in Chairperson, Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1996) 39 ALD 570 '[i]nsinuations of personal culpability by a major public investigative body carry great stigma and have the potential to do serious harm to reputations Given the nature of the claims and the forum in which they are being made here, such reputations may never have the opportunity of being vindicated at a trial ...'. In the present case, while the Respondent understands that there is litigation pending at which any adverse comment by the Applicant about [the ATO officer] may receive a response, there is a danger of unfair damage to [the ATO officer's] reputation by disclosure of the draft material;

* it would be misleading to the Applicant and to other persons who may come into contact with the draft reports and the submissions to disclose the draft reports or the submissions They would not lead to a full understanding of the investigation or the views of the Ombudsman on their own, and it would not be possible to identify, much less to disclose all the information that might be relevant to the progress of that investigation. Some of that information may not be in documentary form and some may be subject to other exemptions Any attempt to use the draft reports would be likely to lead to misinterpretation and to incorrect impressions which may not be able to be corrected; and

* while the motive of the Applicant is irrelevant to a decision on her request under the FOI Act, the information in Documents A, B and C was acquired or developed by the Respondent for the purpose of its investigation into the actions of the ATO and, specifically, the questions of actual, apparent and perceived conflict of interest.

16. The Respondent submits it would be contrary to the public interest to disclose those parts of the draft reports and the submissions which have not already been disclosed."

20. The first question which arises is whether each of Documents A, B and C falls within the scope of s36(1)(a) of the FOI Act - that is, whether each is a document whose disclosure under that 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 an agency".

21. The word "agency" is defined in s4(1) of the FOI Act to mean:

"a Department, a prescribed authority or an eligible case manager".

There is no dispute that the respondent and the ATO are agencies for the purposes of the FOI Act, each being a "prescribed authority" (as also defined in s4(1) of that Act).

22. The question whether a draft report prepared by the respondent pursuant to s15 of the Ombudsman Act 1976 falls within the scope of s36(1)(a) of the FOI Act was considered by the Federal Court of Australia in Kavvadias v Commonwealth Ombudsman (1984) 2 FCR 64. That case concerned a draft report prepared by the respondent in relation to a complaint made to it about certain action taken by the (former) Department of Social Security. That draft report was forwarded to the principal officer of the Department for comments prior to and for the purpose of the making and furnishing of a final report to the Department under s15 of the Ombudsman Act 1976. The Court held that the draft report fell within the scope of s36(1)(a) of the FOI Act. Sheppard J said (at p78):

"... I am satisfied from a reading of the draft report that it was prepared at least partly for the purposes of the policy-forming process involved in the functions, if not of the Ombudsman, then clearly of the Department of Social Security.

...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 ... . I therefore conclude that the release 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."

23. In the Tribunal's opinion that part of Document B comprising the respondent's "draft report" dated December 1996 in the present case is analogous to the draft report involved in Kavvadias and, accordingly, must similarly be regarded as falling within the scope of s36(1)(a) of the FOI Act. Document A, although not formally described by the respondent as a "draft report", is, in the Tribunal's opinion, in the nature of a draft report. Indeed it might appropriately be described as an informal earlier draft report by the investigating officer of the respondent prepared for the purpose of affording the ATO and the ATO officer the opportunity to make submissions prior to the preparation by the respondent of a formal draft report and, ultimately, a final report. Accordingly, the Tribunal is of the opinion that Document A must also, in the light of the decision in Kavvadias, be regarded as falling with the scope of s36(1)(a) of the FOI Act.

24. In the case of Document C, slightly different considerations arise. That document comprises written submissions made by the ATO officer's solicitors to the respondent in response to Document A. The fact that Document C did not originate in an agency (as defined in s4(1) of the FOI Act), however, does not mean that it cannot fall within the scope of s36(1)(a) of that Act: Harris v Australian Broadcasting Corporation (1984) 1 FCR 150 at 154. In that case the Full Federal Court said (at p154):

"... the wording of subs 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"

The expression "deliberative processes" includes not only policy-forming processes but also decision-making processes and processes of deliberation, consideration and reflection involved in the functions of the relevant agency: Re Waterford and Department of the Treasury (No. 2) (1984) 5 ALD 588; Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112. In the Tribunal's opinion Document C comprises opinion or advice obtained, and involves consultation that has taken place, in the course of, or for the purposes of, the processes of consideration and deliberation involved in the investigative functions of the respondent agency. Accordingly, the Tribunal finds that Document C also falls within the scope of s36(1)(a) of the FOI Act.

25. A document which falls within the scope of s36(1)(a) of the FOI Act will, however, only be an exempt document under s36 if its disclosure under the Act "would be contrary to the public interest": s36(1)(b) of the FOI Act. In Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 the Federal Court (Beaumont J) said (at p 561):

"In evaluating where the public interest ultimately lies ... it is necessary 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 ... .".

Similarly, in Re Kamminga and Australian National University (1992) 26 ALD 585 the Tribunal said (at p 588):

"For para (b)(of s36(1) of the FOI Act) to apply it is necessary for the tribunal to find that disclosure would be contrary to the public interest. It is not the case that the tribunal has to be satisfied that disclosure is in the public interest ... . Deciding whether disclosure is contrary to the public interest requires a balancing of competing interests including the public interest in the applicant's right to know ..., which is a different thing to the applicant's personal interest in knowing. The tribunal must balance this against any adverse effect disclosure might have on the proper working of government or its agencies ...". (original emphasis)

26. In Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 access had been sought under the FOI Act to two interim reports made in the course of a review of the Corporation's Legal Department by the person appointed to conduct that review. Beaumont J held that disclosure of the reports would be contrary to the public interest within the meaning of s36(1)(b) of the FOI Act because, no prior opportunity to comment having been afforded to the principal officer of the Legal Department, the views or opinions expressed in the reports were necessarily merely tentative or provisional and their publication could create a misleading and perhaps unfair impression in the public mind. In the Tribunal's opinion the same comment would be apposite in relation to Document A in the present case and, accordingly, for similar reasons to those expressed by Beaumont J in Harris, the Tribunal is satisfied that, subject to the possible application of subss (5) and (6) of s36 of the FOI Act, its disclosure would be contrary to the public interest within the meaning of s36(1)(b) of that Act.

27. In Kavvadias (above) Sheppard J adopted the abovementioned reasoning of Beaumont J in Harris in holding that disclosure of the draft report of the respondent, access to which had been sought under the FOI Act in that case, would be contrary to the public interest within the meaning of s36(1)(b) of that Act. Sheppard J noted that a principal purpose of the draft report was to enable the respondent to discharge its obligation under s8(5) of the Ombudsman Act 1976 to afford the principal officer of the relevant agency and persons criticised in the draft report the opportunity to make submissions, and that the respondent had afforded the persons concerned that opportunity and was awaiting their submissions. His Honour continued (2 FCR at pp 79-80):

"And, depending on their submissions, will depend the form of (the Ombudsman's) final report. It follows that if, as the applicant would have it, the draft report is disclosed, the problems mentioned by Beaumont J in (Harris) 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 (criticised in the draft report) that his tentative criticisms be disclosed. On balance it would be contrary to the proper working of government for there to have been published an earlier report in which criticism, no longer maintained, was included."

Sheppard J's remarks are, in the Tribunal's opinion, entirely apposite in relation to that part of Document B in the present case comprising the respondent's "draft report" of December 1996. Indeed it might be said that the disclosure of that part of Document B would be more clearly contrary to the public interest than the disclosure of the draft report in Kavvadias would have been because criticisms made by the respondent in relation to the ATO officer in Document B were in fact substantially modified in the respondent's final report (which has been disclosed in full to the applicant). Accordingly, the Tribunal is satisfied that, subject to the possible application of subss (5) and (6) of s36 of the FOI Act, the disclosure of that part of Document B comprising the respondent's "draft report" of December 1996 would be contrary to the public interest within the meaning of s36(1)(b) of that Act.

28. Document C comprises written submissions made by the ATO officer's solicitors to the respondent in response to Document A. The contents of Document C were taken into account by the respondent in the preparation of Document B and parts of Document C are quoted and commented on in Document B. Document C, therefore, constitutes an integral part of the same deliberative process of the respondent as that of which Documents A and B also constitute integral parts. Having regard to the Tribunal's finding that disclosure of Documents A and B would be contrary to the public interest, the Tribunal also finds, for the same reasons, that, subject to the possible application of subss (5) and (6) of s36 of the FOI Act, the disclosure of Document C would be contrary to the public interest within the meaning of s36(1)(b) of that Act.

29. The Tribunal next turns to consider the application of subss (5) and (6) of s36 of the FOI Act to Documents A, B and C.

30. Subsection (6) of s36 of the FOI Act provides that that section does not apply to the categories of documents specified in paras (a), (b) and (c). The Tribunal finds that Documents A, B and C do not fall within any of the categories specified in s36(6) in that none of those documents constitutes:

(a) a report of scientific or technical experts;

(b) a report of a prescribed body or organisation established within the respondent agency; or

(c) the record of, or a formal statement of the reasons for, a final decision.

Accordingly, s36(6) of the FOI Act is not applicable in the present case.

31. Subsection (5) of s36 of the FOI Act provides that that section does not apply to a document "by reason only of purely factual material" contained therein. Pursuant to that subsection, therefore, the respondent, subject to s22 of the FOI Act, is bound to disclose such parts of Documents A, B and C as comprise "purely factual material": Kavvadias (above), at p 80.

32. On 18 December 1998 an authorised officer of the respondent decided, pursuant to s22 of the FOI Act, to grant to the applicant access to Documents A and B with the deletion of matter claimed to be exempt under ss36, 40(1)(d) and 41 of that Act. A part of Document A (referred to as "Attachment 14" and comprising 3 pages) was also deleted on the ground that it was irrelevant to the applicant's request for access (see s22(1)(a)(ii) of the FOI Act). That officer, however, affirmed the earlier decision, dated 24 August 1998, of another authorised officer not to release any part of Document C to the applicant on the basis that that document was wholly an exempt document under ss36, 40(1)(d) and 41 of the FOI Act.

33. The Tribunal has examined Documents A, B and C in their entirety and has noted those parts of Documents A and B which have been released to the applicant following the abovementioned decision of 18 December 1998. Those parts of Documents A and B contain both material which could be described as "purely factual" and material which could not be so described. In other words, the respondent has already disclosed to the applicant a greater amount of material contained in Documents A and B than it is bound, pursuant to s36(5) of the FOI Act, to disclose to her. As regards those parts of Documents A and B which have not been disclosed to the applicant, they consist, for the most part, of tentative opinions and conclusions and discussions thereof in the factual context of the matter under investigation. Although interspersed throughout such discussions is some "purely factual material", it forms part of the context of what, in the Tribunal's opinion, consists of deliberation in the course of the respondent's deliberative processes. Those particular pieces of "purely factual material" cannot, in the Tribunal's opinion, conveniently or reasonably be severed from the deliberative material of which they form part. The Tribunal would add that, in any event, it is highly likely that the contents of such "purely factual material" are already well known to the applicant.

34. As regards Document C (which has not been released to the applicant), the Tribunal notes that parts of that document were quoted in parts of Document B which have already been disclosed under the FOI Act to the applicant (Document B, pp 31-38; Respondent's File C/94/15212, Part 5, folios 109-102). The remainder of Document C contains both material which could be described as "purely factual" and material which could not be so described. As regards the "purely factual material" in Document C, some of it could conveniently and sensibly be severed from the remainder of the document and some of it could not. The "purely factual material" which is severable may, however, constitute exempt matter by reason of s41(1) of the FOI Act, to which the Tribunal now turns.

The Personal Privacy Exemption - s41 of the FOI Act

35. A document is an exempt document under s41(1) of the FOI Act if its disclosure under the Act "would involve the unreasonable disclosure of personal information about any person (including a deceased person)". The expression "personal information" is defined in s4(1) of the FOI Act to mean "information or an opinion ..., whether true or not, ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion".

36. Having regard to the Tribunal's abovementioned findings in relation to the application of s36 of the FOI Act, the Tribunal will consider the issue of the application of s41(1) of the Act only in relation to the severable "purely factual material" in Document C, referred to in paragraph 34 above, and Attachment 14 to Document A, referred to in paragraph 32 above.

37. The abovementioned severable "purely factual material" in Document C appears on pp 5-7 of that document, under the heading "The Quarterly Provisional Tax (QPT) matter", and consists of a "chronology of events" which occurred in relation to that matter. That chronology of events contains information about the applicant and other individuals, all of whom are named therein. That information clearly constitutes "personal information" within the meaning of s41(1) of the FOI Act.

38. The question then arises whether the disclosure of that personal information would be unreasonable, within the meaning of s41(1) of the FOI Act. In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 the Tribunal (Deputy President Hall) said at p N259):

"...[I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs Whether a disclosure is ´unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.

However, consistently with the stated object of the Act (see s3), it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document." (original emphasis)

39. Having regard to the nature of the abovementioned personal information - being a concise and simple chronology of events which are referred to in those parts of Document B which have already been disclosed under the FOI Act to the applicant - and the other factors referred to in Re Chandra (above), the Tribunal is of the opinion that it would not be unreasonable to disclose that information to the applicant. The Tribunal is also of the opinion that it would not be unreasonable to disclose to the applicant those parts of Document C which are quoted in parts of Document B (namely, File C/94/15212, Part 5, folios 109-102) which have already been disclosed under the FOI Act to the applicant. As regards those parts of the abovementioned personal information which are about the ATO officer, the Tribunal does not regard that information as of such a kind that the ATO officer would be likely to object to its disclosure. In this connection, the Tribunal notes that the ATO officer was notified by the respondent of the present application for review and did not apply to the Tribunal to be joined as a party to this proceeding or otherwise indicate to the Tribunal that the officer objected to the disclosure of any of the information with which the present application for review is concerned.

40. Accordingly, the Tribunal finds that it would not be unreasonable, within the meaning of s41(1) of the FOI Act, to disclose to the applicant that part of Document C comprising a "chronology of events" under the heading "The Quarterly Provisional Tax (QPT) matter" on pp 5-7 of that document.

41. Attachment 14 to Document A (File C/94/15212, folios 131-133) comprises a copy of a letter from a Deputy Commissioner of Taxation to a Deputy Commonwealth Ombudsman in relation to a complaint made pursuant to s7 of the Ombudsman Act 1976 which is unrelated to the applicant's complaint to the respondent under that Act about the ATO officer and which exclusively involves other individuals. Clearly, Attachment 14 contains "personal information", as defined in s4(1) of the FOI Act, and, having regard to the principles stated in Re Chandra (above), the Tribunal is of the opinion that it would be unreasonable, within the meaning of s41(1) of the FOI Act, to disclose that information to the applicant. Furthermore, the Tribunal agrees with the view of the respondent's authorised officer that Attachment 14 is irrelevant to the applicant's request for access in the present case. Accordingly, for those reasons the Tribunal is of the opinion that it would not be appropriate to disclose to the applicant Attachment 14 to Document A.

Section 40(1)(d) of the FOI Act

42. Section 40(1)(d) of the FOI Act refers to documents whose disclosure under the Act "would, or could reasonably be expected to ... have a substantial adverse effect on the proper and efficient conduct of the operations of an agency". In the light of the Tribunal's findings in relation to the application of s36 of the FOI Act to Documents A, B and C it is not necessary for the Tribunal to consider the application of s40(1)(d) of the Act in detail. It is sufficient for present purposes for the Tribunal to state that it is not satisfied that the disclosure of that part of Document C, referred in paragraph 40 above, would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of either the respondent or the ATO.

Conclusion

43. For the purpose of formulating its decision in this matter the Tribunal must identify the decision under review. The applicant, it will be recalled, described that decision in her application for review, as "Deemed refusal of request for internal review lodged 28/8/98". The respondent asserted, however, that "[t]his review also extends to review of the Respondent's decision made on 18 December 1998 pursuant to subsection 56(5) of the FOI Act". (T2, p5). By that decision (referred to in paragraph 16 above) the respondent's authorised officer granted to the applicant access, with deletions, to Documents A and B, but refused to grant access to any part of Document C.

44. In the Tribunal's opinion s56(5) of the FOI Act is not applicable in the circumstances of the present case. That subsection only applies where an application has been made to the Tribunal by virtue of s56. That did not occur in the present case. Instead, the present case appears to be governed by s55(3) of the FOI Act in that the respondent did make a timely decision on 24 August 1998 in response to the applicant's request for access, the applicant subsequently applied under s54 for an internal review of that decision, and the applicant was not informed of the result of that review within the prescribed period of 30 days following receipt by the respondent of that application. In those circumstances, by virtue of s55(3) of the FOI Act, the applicant's application to the Tribunal for review, lodged on 13 November 1998, related to the respondent's original decision on her request for access - that is, the decision of the authorised officer of the respondent, dated 24 August 1998, refusing to grant access to the applicant to any part of Documents A, B and C.

45. The Tribunal notes, furthermore, that s26(1) of the AAT Act provides:

"... after an application is made to the Tribunal for review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:

(a) the enactment that authorised the making of the application expressly permits the decision to be altered; or

(b) the parties to the proceeding, and the Tribunal, consent to the making of the alteration."

The FOI Act does not expressly permit a decision, the subject of an application to the Tribunal for review, to be altered (within the meaning of s26(2) of the AAT Act) after the lodging of such application with the Tribunal (compare s1284 of the Social Security Act 1991); nor, in the present case, was there any such consent as is referred to in para (b) of s26(1) of the AAT Act.

46. Accordingly, the internal review "decision" of the respondent's authorised officer on 18 December 1998 was invalid, by reason of s26(1) of the AAT Act, and must therefore be regarded as merely a purported decision.

Decision

47. For the above reasons the Tribunal sets aside the decision under review, being the decision of the authorised officer of the respondent dated 24 August 1998, and, in substitution therefor, decides that:

(a) Documents A and B are exempt documents under s36(1) of the FOI Act, but that purely factual material contained in those documents does not constitute exempt matter and was properly disclosed to the applicant pursuant to the purported decision of the authorised officer of the respondent made on 18 December 1998;

(b) Document C is an exempt document under ss36(1) and 41(1) of the FOI Act but that, pursuant to s22(1) of that Act, access to a copy of that document be granted to the applicant, should she so wish, with the following exempt matter deleted - namely, the whole of the contents of that document with the exception of:

* that part of Document C containing the "chronology of events" on pp 5, 6 and 7 thereof; and

* those parts of pp 2, 3, 4, 5, 6, 7, 8 and 9 of Document C which are quoted in parts of Document B (namely, File C/94/15212, Part 5, folios 109-102) which were disclosed under the FOI Act to the applicant pursuant to the abovementioned purported decision of 18 December 1998.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Senior Member

Signed: .

............(sgd C Osborn).................

Associate

Date/s of Hearing N/A

Date of Decision 30 July 1999

Counsel for the Applicant -

Solicitor for Applicant -

Counsel for the Respondent -

Solicitor for the Respondent -