Wegner and National Registration Authority for Agricultural and Veterinary Chemicals [2002] AATA 36 (22 January 2002)

Last Updated: 22 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 36

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/433

GENERAL ADMINISTRATIVE DIVISION )

Re Marguerite Wegner

Applicant

And National Registration Authority for Agricultural and Veterinary Chemicals

Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member

Date 22 January 2002

Place Perth

Decision Pursuant to s43 of the Administrative Appeal Tribunal Act 1975, the decision under review is set aside and in substitution therefor the Tribunal decides: 1. That documents identified as 1, 26, 30, 34, 35 and 57 are not exempt pursuant to s41(1) of the Freedom of Information Act 1982; 2. That document identified as 32 is exempt in its entirety pursuant to s41(1) of the Freedom of Information Act 1982; and 3. That pursuant to s43(5B) of the Administrative Appeals Tribunal Act 1975, this decision is not to come into operation until 29 days have elapsed from the date on which the decision is handed down by the Tribunal.

..........(sgd R D Fayle)...................

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION - request for access - papers relating to decision to register or not an agricultural or veterinary chemical - Rabbit Calicivirus Disease, RCD, RHDV - whether disclosures in documents are "personal information" -whether disclosure of personal information unreasonable - whether disclosure in the public interest - whether non-disclosure desirable to protect the management of the agency.

Freedom of Information Act 1982 - ss.4(1) definition "personal information", 22(1), 41(1) & (2)

Re: Strang and Department of Immigration and Ethnic Affairs and Anor (1994) 36 ALD 449

Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111

REASONS FOR DECISION

22 January 2002 Mr R D Fayle, Senior Member

1. Mrs Marguerite Wegner ("the applicant") applied to this Tribunal on 28 November 2000 for a review of a decision made on 22 February 2000 by the National Registration Authority for Agricultural and Veterinary Chemicals ("the respondent") not to release certain documents or parts of documents to which the applicant had requested access pursuant to the Freedom of Information Act 1982 ("the FOI Act").

2. On 25 June 1999 the applicant wrote to the respondent's Freedom of Information Officer requesting "a copy of all the information you have (including the Application Document) concerning the RCD Baits and RCD Bait Application that is currently before the NRA [the respondent] for approval." After some delay about whether the applicant should be required to pay the $30 application fee, the respondent wrote to the applicant on 22 and 24 February 2000, providing a schedule setting out its reasons, as embellished in the covering letters, as to why it did not grant access to specified documents or parts of specified documents. Those reasons were further embellished, as was the scheduled, in its Statement of Reasons signed by the respondent's Deputy Chief Executive Officer on 29 January 2001.

3. After the matter had been referred to this Tribunal for review, on 5 September 2001, the parties narrowed down the issues by consent. The agreed issue is:

Whether section 41 of the Freedom of Information Act 1982 (the FOI Act) applies to Documents 1, 26, 30, 34, 35 and 57 in part and Document 32 in full on the basis that disclosure of the information contained in those documents would constitute an unreasonable disclosure of personal information of the Respondent's External Reviewer.

4. It was further agreed between the parties that subject to each party providing its submissions in writing, the matter should proceed to review by the Tribunal without a hearing. The Tribunal, being satisfied that it is competent to do so without compromising its procedures or the rights to natural justice of the parties, decided, pursuant to s33(1) of the Administrative Appeals Tribunal Act 1975, to review the decision as circumscribed by the agreed issues, on the basis of documents before it. These are:

* Those filed by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents");

* The applicant's witness statement signed and dated 17 August 2001;

* The applicant's Statement of Facts and Contentions;

* The respondent's Revised Statement of Facts and Contentions;

* The applicant's submissions, filed on 14 September 2001;

* The respondent's submissions, filed on 18 September 2001;

* The witness statement of the respondent's External Efficacy Reviewer, dated 5 July 2001 (subject to a confidentiality order pursuant to s35(2) of the Administrative Appeals Tribunal Act 1975 in relation to the name and identity of the witness).

5. The T documents provide background information that assists the Tribunal in its review. Apparently the Rabbit Haemorrhagic Disease Virus (RCD) in "injectible" form, at the time of the application, was registered as a product by the respondent. RCD was registered for the purpose of killing wild rabbits in Australia. RCD is administered by trapping wild rabbits and before release, injecting them with RCD in the expectation that those infected rabbits will infect other rabbits with the virus. This application concerns an application to the respondent to register RCD baits, which would be an alternate or complementary way of infecting wild rabbits with RCD.

6. RCD is also known as the Calicivirus, those terms being used interchangeably in the documents before the Tribunal and in these reasons. The baits are also referred to as Rabbit Calicivirus Disease Baits.

7. The documents for which the applicant now seeks full disclosure, the subject of this review, comprise part of the total information gathered by the respondent from various sources to assist it in making its determination whether to register the RCD baits.

8. Set out below is a extract of the schedule accompanying the respondent's reasons for not releasing all or part of the documents in issue.

(Table on next page)

Doc No Author Addressee Date Description Folio FOI prov Decision Reason

1 NRA Undated Notes prepared for Peter Raphael - June Board Meeting 1 s22(a), s41 Release with deletions of irrelevant information and personal information material A, B

26 27 July 98 RCD Oral Delivery System - Review Strategy 4 s22(a), s41 Release with deletions of irrelevant information and personal information material A, B

30 Max Darvill - NRA Consultant 14 Sep 98 Draft letter of contract for technical review 2 s41 Release with deletions of personal information B

32 Consultant (sic) Max Darvill - National 22 Sept Letter attaching explanatory letter from (sic) 2 s41 Do not release - personal B

34 Max Darvill NRA Consultant 7 Oct 98 Covering letter referring to consultancy 1 s41 Release with deletions of personal information B

35 Max Darvill NRA Consultant 9 Oct 98 Letter attaching review package 3 s41 Release with deletions of personal information B

57 NRA 21 Jun 99 Status Sheet - Rabbit Calicivirus Disease Suspension 1 s41 Release with deletions of personal information B

Key: NRA = National Registration Authority

Reasons:

A Release of the information contained in the document would disclose information that would reasonably be regarded as irrelevant or immaterial to the Freedom of Information request; s22(1)(a)(ii) of FOI Act.

B Release of the information contained in the document would involve the unreasonable disclosure of personal or private information about a person: s41(1) of the FOI Act. If released, this information would identify the person or in other ways adversely impact upon the privacy of the person.

9. In addition to numerous documents in the T documents, authored by the applicant, the evidence includes her statement (supra), which is brief. Its essence is reproduced below (subject to the deletion of names):

1 I am the Applicant in a Freedom of Information request dispute concerning RCD baits before the Australian Administrative Appeals Tribunal.

2 I object very strongly to the application by the External Reviewer to keep his or her identity, qualifications and publications a secret from the public.

3 A number of Australian scientists have spoken out in support of RCD, including (7 persons named).

4 It is easy to locate information about any of these scientists by searching the internet or by looking in scientific publications.

5 Information in the public domain includes contact details, qualifications and awards and postings by these scientists. [Named person's] contact details are listed on the Melbourne University Website as are many of his research papers and [named person's] details are found on the CSIRO website. Most of these scientists have published their support of RCD on the internet as well as in magazines, newspapers and in the media.

6 The External Reviewer has stated that he or she has a PhD in virology and a Bachelors degree in Veterinary Medicine (paragraph 2 of Witness Statement dated 5 July 2001). This does not reveal whether the External Reviewer has knowledge in the following areas which are central to Rabbit Calicivirus disease ("RCD") applications:

(a) Knowledge concerning RCD (as opposed to knowledge concerning viruses in general); or

(b) Knowledge concerning the potential impact of RCD on species other than rabbits.

10. The External Reviewer also provided a written statement in support of the respondent. In essence the External Reviewer's statement provides:

(a) His/her academic qualifications as mentioned by the applicant in her statement above.

(b) A statement that he/she believes that he/she has "the expertise and experience to provide expert advice to the NRA in respect of RCD virus via an oral mode", and that he/she has no commercial interests or conflicting interests which may lead to biass.

(c) That if his/her name was to be released then it is possible that he/she may be confused with his/her spouse, who may as a result be exposed to unwarranted criticism.

(d) That he/she does not wish to be exposed to public criticism which he/she believes "is generally not refutable and is inevitably imprecise ... it is likely to damage my reputation as a scientist, damage my career and cause difficulties with my employer and agencies which fund my research."

(e) That he/she has only provided preliminary advice to date and may be called upon to provide further advice in future.

(f) That "issues relating to RCD are very sensitive and often give rise to emotional feelings in people". For that and other reasons he/she believes that possible (uninformed/unwarranted) public criticism may affect the degree to which he/she could provide critical and honest advice to the NRA.

(g) That he/she made the initial assessment of RCD for the respondent on the understanding that his/her "identity would remain confidential, at least until the application is finalised".

The relevant legislative provisions

11. The relevant FOI Act provisions are set out below for convenience:

4. (1) In this Act, unless the contrary intention appears:

"personal information" means information or an opinion (including

information forming part of a database), whether true or not, and whether

recorded in a material form or not, about an individual whose identity is

apparent, or can reasonably be ascertained, from the information or opinion;

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.

(2) ...

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.

(3) - (8) (not relevant)

The Submissions and discussion

12. The submissions deal with two related aspects of the issue identified by each of the applicant and the respondent. Those are whether the information is "personal information" as defined in s4(1) of the FOI Act and secondly whether, if so, disclosure of it would be unreasonable in terms of s41(1) of the FOI Act. It is convenient in these reasons to consider these in turn before drawing any relevant conclusion on the issue itself.

The issue of "personal information"

13. The applicant submitted that a person's name is not "personal information" as that term is defined in s4(1) of the FOI Act. She further submitted, in the alternative, that disclosure of such "personal information" about the External Reviewer would not be unreasonable and it is important to consider the public interest in this respect. On the other hand the respondent, relying on s41(1) of the FOI Act contends that the information deleted from disclosed documents, if disclosed would enable a person to identify him/her since work and home contact details would be apparent or could be easily identified. There was some commonality in the cases referred to by each party which, in relevant context, are now considered in the light of this aspect of the issue.

14. Before doing so however, the Tribunal simply observes that to disclose a person's name is plainly information about an individual whose identity may be apparent although not necessarily. It is clear that the applicant's request is that she be provided with sufficient information about the External Reviewer to identify him/her and his/her name alone may not suffice. In the opinion of the Tribunal, each of the seven documents in question contains sufficient information to enable a reasonable person to identify without doubt, the External Reviewer. The respondent relies on s41 of the FOI Act to exempt them.

15. Relying on the authority of Re: Strang and Department of Immigration and Ethnic Affairs and Anor (1994) 36 ALD 449, c/f re Pfizer and Department of Health Housing and Community Services (1993) 30 ALD 647 at paragraphs 77-80, the applicant submitted that a person's name is not "information or an opinion about an individual" and accordingly is not "personal information" for the purposes of s41(1) of the FOI Act. In Re: Strang, Senior Member Dwyer, in the passage referred to above, said:

"(49) The documents in question contain nothing more about their individual authors than their names and positions within the foundation. For information to be "personal information" as that term is defined in s4 of the [FOI] Act, there must be some information or an opinion about an identified person. There is certainly no opinion about the authors of the documents contained in the documents. I consider that for information to be "personal information" about an individual it would usually need to be more than that person's name. I acknowledge that the identity of a person who conveyed information could be "personal information" about the person in circumstances similar to those in G v Day [1982] 1 NSWLR 24 and D v National Society for the Prevention of Cruelty to Children [1978] AC 171. But this matter is distinguishable from those cases because the individuals who wrote the letters did so on behalf of the foundation, rather than as individuals. I doubt if their names are "personal information". (p.460)

16. In the Tribunal's view the facts of this matter are clearly distinguishable from those then considered by the learned Senior Member in Re: Strang. In this instance the name of the External Reviewer, when taken with other information about him/her contained in the documents in question, is "personal information" as it is information about a person whose identity is apparent or can reasonably be ascertained (from that information).

The issue of whether disclosure of personal information unreasonable

17. The applicant submitted that disclosure of the information contained in the seven documents in question would not be unreasonable. This submission is founded on "public interest" arguments and the need for interested persons to be assured that the External Reviewer, by reference to his/her qualifications and experience, is competent to review the potential impact of RCD on species other than rabbits. In response to the assertion contained in the External Reviewer's witness statement that if identified, he/she may be contacted by concerned members of the public, or may be subject to public criticism, the applicant made two principal submissions. Firstly, that a number of Australian scientists have already put on public record their support of the use of RCD and that there is no evidence of any of those persons suffering any detriment as a result, beyond one incident of public criticism. Secondly, that the applicant has not (personally) harassed or threatened anyone over the RCD issue.

18. The applicant's "public interest" submission goes to the need for the public to be satisfied that the External Reviewer "is suitably qualified and not biased (e.g. by having a commercial interest in, or pre-determined view about, RCD baits)". And further, in this context, that the External Reviewer has been paid out of the public purse: see Environmental Defender's Office and Ministry for Planning (1 November 1999, Information Commissioner of WA, D0351999) at paragraph 33.

19. The respondent made several submissions in relation to whether disclosure of "personal information", in the circumstances, would be unreasonable, in terms of s41(1) of the FOI Act. In its submissions it relies upon the Full Court judgment (Lockhart, Jenkinson and Heerey JJ) in Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111. That case concerned the question of whether the respondent provider of telecommunication services, who had traced a number of nuisance calls received by the appellant, should reveal the identity of the caller pursuant to a request made under s15 of the FOI Act. The respondent refused the request relying on s41(1) of the FOI Act. It is instructive to consider in the present context, the observations of Lockhart J (with whom Jenkinson J and Heerey J agreed although each gave additional reasons) in his judgment dismissing the appeal. He states:

35. Before parting from the case there is a final observation I wish to make. The FOI Act is, as its preamble states, "an Act to give to members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies". The object of the Act is stated in s. 3 as being to enable Australians to have access, as far as is possible, to information in the possession of the Federal Government by making available to the public information about the operations of Departments of the Commonwealth and its public authorities and by creating a general right of access to information in documentary form in the possession of ministers, departments and public authorities. But, as s. 3 itself recognises, there are limitations upon these rights of the Australian community which are expressed as being "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."

36. This case is an example of the legislative recognition in s. 3 of both the right of persons to gain access to information in documents in the possession of the Commonwealth, yet the limitation on the disclosure of information relating to a person's personal affairs (s. 41(1)). The determination by the Tribunal of the question of whether the documents for which exemption was claimed in this case are in law exempt documents involved that question being determined without the appellant having access to the documents or so much thereof as contain the relevant information relating to the personal affairs of persons.

37. It offends a right thinking person's sense of fairness and justice that citizens may not have access to important documents which are available to their opponents or available to the government and which may be before the Tribunal and that their rights are to an extent determined in camera. Although this is an unsatisfactory nature of the proceedings, it is inevitable. The right of the public to gain access to information in the possession of the government of the Commonwealth must necessarily be subject to limitations and they are recognised throughout the Act, including Part IV, which includes as exempt documents, documents affecting national security, defence or international relations (s. 33); documents affecting relations with States (s. 33(a)); Cabinet documents (s. 34); Executive Council documents (s. 35); and documents subject to legal professional privilege (s. 42). It is the price that the community must pay for the considerable benefit of having a statutory right of access to official documents of the government of the Commonwealth and of its agencies. But the exclusion of applicants from access to documents, although necessary in cases such as the present, must be treated with great care by tribunals before whom questions arise under the FOI Act. (121)

20. Heerey J, in agreeing with Lockhart J added:

4. Turning to the criterion of unreasonableness prescribed by the s.41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary in order to make out the s.41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would enure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable. (123)

21. The respondent in its submissions gave recognition to the argument that the public interest may be served in knowing the identity of the External Examiner, including the public interest in knowing that the reviewer is suitably qualified and able to give unbiased advice. However, it was submitted that those considerations are outweighed by a number of public interest factors which it details. In summary, those are:

* The respondent calls on external expert advice from time to time to assist it in evaluating and assessing particular matters within its regulatory functions. That advice needs to be objective and free from improper pressures that might be exerted by an interested (third) party if that person knew the identity of the expert.

* Unless advice from external experts is provided on a confidential basis the standard of evaluating and determining applications (for registration such as RCD baits) will be curtailed and the process potentially rendered inefficient.

* The mere possibility that an external expert may be subjected to public contact might affect the degree to which he or she could provide critical and honest advice. This possible influence, it was submitted, is evident from the External Reviewer's statement (supra).

* External experts would be less likely to assist the respondent if they were likely to be identified as being involved in a particular application. Therefore, it was submitted, disclosing their identities would hinder the future availability of expert advice. Particular reference is made to the statement by the External Reviewer in this context.

* To identify the external expert (in particular, the External Reviewer in this case) may subject that person to improper contact before providing advice.

* The applicant has the ability to distribute widely, using the internet, information obtained and therefore, because of the controversial nature of the RCD bait application, disclosure of the External Reviewer's identity is likely to invoke contact (by members of the public).

* The External Reviewer strongly objects to his/her identity being disclosed and believed that the advice would be given confidentially (at least until the application was finalised).

* The application is not yet finalised and disclosure of the documents in question would plainly identify the External Reviewer, putting in jeopardy the continued assistance of the External Reviewer.

22. Firstly, this matter is to be decided on the basis of the application of s41(1) of the FOI Act. That is, whether full disclosure of any or all of the seven documents in question, would involve the unreasonable disclosure of personal information about the External Reviewer. In arriving at a decision in that legislative framework, the applicant's subjective reasons for seeking disclosure are not relevant. However, the objective reasons of the respondent are relevant. From the evidence before it, the Tribunal is able to make some relevant observations about the respondent's submissions. There is evidence that the applicant has established a website dealing with Calicivirus (or RCD or RHDV). There was no evidence submitted to the Tribunal that the applicant has been involved in any personal vilification or adverse criticism of any scientist known to support RCD for control of wild rabbits. Certainly the T documents do not provide evidence of that kind and it is not the Tribunal's view, in circumstances where the respondent is competently represented, that it needs to search the internet to gather evidence in this regard. Indeed, in the applicant's letter of 5 July 1999 to the respondent (T5) she refers to her website location which she states includes "letters from overseas scientists opposing the use of RHDV as a biocide ...". One can only assume that the respondent's contention that an external adviser's objectivity may be influenced by improper contact with the public stemming from a revelation about the expert's identity, is an opinion not necessarily based on its own experience.

23. In the Tribunal's opinion, a demonstration to its reasonable satisfaction that disclosure of the External Reviewer's personal information may cause him/her personal difficulties associated with his/her right to privacy would doubtless weigh in favour of the exemption pursuant to s41(1) of the FOI Act. However, the Tribunal is of the opinion that the evidence does not support the contention that such a breach of the External Reviewer's privacy rights would enure if his/her identity were to be disclosed.

24. The Tribunal is of the opinion that the public interest would be served by it knowing the credentials of experts called upon to review, independently, a request to register a product, which by its very nature, may have an unintended environmental impact. The undergraduate, post-graduate and professional affiliations of expert scientists, in the Tribunal's opinion, go some of the way only to establishing that person's specialist qualifications. In the case of a scientist, their publications, plenary addresses (if any), papers and discussant papers presented at scientific meetings assist the scientific community of peers to make an informed judgement about the person's expertise in a relevant area of research. Only by identifying the particular person is it possible to gather that objective information on which to found a judgement as to the expert's independence, qualifications, experience and suitability for the task. Clearly the community of scholarly scientists engaged in research must be indifferent and objective in their approach and method and must be prepared to defend publicly their conclusions should they be challenged. Absent identity of the scientist then that process may not be open.

25. It is apparent that the information to enable an objective assessment of the External Reviewer's suitability for the assignment in the present case, cannot be obtained without identifying him/her. It is therefore entirely relevant to weigh up the public interest in this respect against submissions by the respondent for maintaining the exemption of the documents in question.

26. The Tribunal accepts that external experts need to be objective and free from improper pressures intended to influence their objectivity. There is no evidence before the Tribunal as to whether the contract negotiated between the External Reviewer and the respondent contained any reference to treating as confidential the External Reviewer's identity. There is no copy in the T documents of the contract referred to in document 32. For that reason the Tribunal is not reasonably satisfied that the matter of the External Reviewer's confidentiality or identity was an issue addressed by the parties to the contract when let. The Tribunal understands that s45 of the FOI Act is not in issue. Therefore, it is not apparent that to disclose the identity of the External Reviewer would be in breach of confidence.

27. The External Reviewer's witness statement states that he/she very strongly objects to his/her name being disclosed to the applicant for reasons there given. In the Tribunal's view, disclosure of any one of the seven documents in issue would clearly identify the External Reviewer. Further, in the Tribunal's opinion, as a result, there is no likelihood of confusion of identity with his/her spouse. In addition, the External Reviewer states that he/she would be reluctant to give further advice if there was inappropriate contact by members of the public as a result of his/her identity being disclosed to the applicant. The Tribunal is in no position to make any comment in this regard. It simply observes that the contention expresses a view by the External Reviewer about future behaviour given future events that may or may not happen. It is clearly every citizen's right to decide whether to undertake an assignment in the light of circumstances at the time but this reason advanced by the External Reviewer, in the opinion of the Tribunal, is, with respect, not sufficient to displace the public interest in knowing. Further, in the Tribunal's opinion, a scientific expert, in accepting an assignment that concerns a matter of public interest and controversy, and which demands scientific research and analysis, ought to do so impartially and be seen to be doing so impartially. It is the Tribunal's opinion that to suppress the identity of the scientific expert, except for disclosure of his/her academic qualifications, in those circumstances, which are reflected in the present case, does not assist the public in its perception of independence. The respondent holds a position of public significance and is charged with an onerous task in deciding, on behalf of citizens, whether to register agricultural and veterinary chemicals. It is therefore in the public interest that its processes and deliberations leading to its decisions are transparent, subject only to statutory exclusion of access to documents. The respondent has the onus of establishing that its decision to exempt the documents in question was justified. For reasons above it has not generally discharged that onus to the reasonable satisfaction of the Tribunal. However, the Tribunal recognises that document 32 contains information of private concern to the External Reviewer, going to procedural and remunerative details of the contractual arrangement between the External Reviewer and the respondent. In the opinion of the Tribunal document 32 will not assist the applicant, apart from possibly satisfying curiosity, and should remain exempt.

Conclusion

28. For the above reasons and subject to the maintenance of document 32 as exempt pursuant to s41(1), documents 1 (subject to deletion of irrelevant information), 26, 30, 34, 35 and 57 are not exempt.

29. In its written submissions the respondent requested that the Tribunal pursuant to s43(5B) of the Administrative Appeals Tribunal Act 1975 specify that the decision not come into operation until a date at least 28 days after the date of its decision. Its reason for this request was to allow the Expert Reviewer an opportunity to adequately consult and take further action as considered appropriate. That subsection states:

(5B) The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date.

It is clear that should such an order be made then the respondent would be given time in which to institute an appeal pursuant to s44 of the Administrative Appeals Act 1975, which appeal would be thwarted should the decision of this Tribunal come into operation forthwith pursuant to s43(5A) of the said Act. In the opinion of the Tribunal that request is reasonable and will ensure that any appeal process is not made otiose by a prior disclosure as a consequence of the decision of this Tribunal. For that reason the request is granted.

Decision

30. Pursuant to s43 of the Administrative Appeal Tribunal Act 1975, the decision under review is set aside and in substitution therefor the Tribunal decides:

1. That documents identified as 1, 26, 30, 34, 35 and 57 are not exempt pursuant to s41(1) of the Freedom of Information Act 1982;

2. That document identified as 32 is exempt in its entirety pursuant to s41(1) of the Freedom of Information Act 1982; and

3. That pursuant to s43(5B) of the Administrative Appeals Tribunal Act 1975, this decision is not to come into operation until 29 days have elapsed from the date on which the decision is handed down by the Tribunal.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member

Signed: ...(sgd B A Paterson)...

Associate

Date/s of Hearing 17 January 2002

Date of Decision 22 January 2002

Counsel for the Applicant Mr M B Bennett

Solicitor for the Applicant Cameron Poustie, Environmental Defender's Office

Solicitor for the Respondent Kenneth Teoh, Legal Counsel for respondent