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Vasta and Anor and Civil Aviation Safety Authority [2011] AATA 84 (11 February 2011)

Last Updated: 11 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 84

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/0261, 2385

GENERAL ADMINISTRATIVE DIVISION
)

Re
WAYNE VASTA
MICHAEL MCKINNON

Applicants
And
CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal
Mr P W Taylor SC, Senior Member

Date 11 February 2011

Place Sydney

Decision
I recommend to the Attorney General that Mr Vasta’s costs in relation to the proceedings be paid by the Commonwealth.
I recommend to the Attorney General that Mr McKinnon’s costs in relation to the proceedings be paid by the Commonwealth.

....................sgd..........................
Mr P W Taylor SC
Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – costs – recommendation that costs of applicant in proceedings be paid – success or substantial success – benefit to the general public – financial hardship to the applicant – reasonableness of the reviewable decision – commercial benefit


Freedom of Information Act 1982 (Cth) s 66

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Civil Aviation Regulations 1988 (Cth) reg 52A


Re Vasta and Civil Aviation Safety Authority / Re McKinnon and Civil Aviation Authority (2008) 110 ALD 401; [2008] AATA 1120

Re Brighton-Stangstins and Australian Competition and Consumer Commission [2008] AATA 773

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

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

Re Lobo and Minister for Immigration and Citizenship [2007] AATA 1038

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union [1978] FCA 45; (1979) 27 ALR 367

Re Lianos and Secretary, Department of Social Security (No 2) [1985] AATA 281; (1985) 9 ALD 43

Re Novak and Australian Federal Police [2010] AATA 295; (2010) 115 ALD 166

Cashman & Partners v Secretary, Department of Human Services and Health [1995] FCA 1730; (1995) 61 FCR 301


REASONS FOR DECISION


11 February 2011
Mr P W Taylor SC, Senior Member



  1. On 6 July 2010 I set aside the Civil Aviation Safety Authority’s (CASA) decision relating to Mr Vasta’s freedom of information (FOI) application. I also varied CASA’s decision in relation to Mr McKinnon’s request. The effect of my decisions was:
  2. In the course of the hearing of the substantive applications Messrs Vasta and McKinnon anticipated the eventual success of their review applications to the Tribunal. They sought a recommendation, under the Freedom of Information Act 1982 (Cth) (FOI Act) s 66, that the Commonwealth pay their costs in relation to the proceedings.
  3. I indicated my preliminary views about the costs application in paragraphs [147] to [151] of Re Vasta and Civil Aviation Safety Authority / Re McKinnon and Civil Aviation Authority (2008) 110 ALD 401; [2008] AATA 1120 (the 6 July reasons for decision). I included that preliminary indication to afford both CASA and the Applicants the opportunity to consider their final costs submissions in the light of the actual substantive decisions, and my reasons for those decisions. I had informed the parties, at the conclusion of the hearing, that I would include such a preliminary indication, if (as it eventuated) I set aside, or varied, either of the reviewable decisions.
  4. FOI Act s 66 permits the Tribunal to make a recommendation to the Attorney General that an applicant's costs relating to proceedings of the present kind be paid by the Commonwealth. The only threshold restriction on making such a recommendation is that the review application is successful, or substantially successful.
  5. In deciding whether to make such a recommendation, once the threshold restriction has been met, the Tribunal is required to have regard to the four matters specified in FOI Act s 66(2)(a), (b), (c) and (d). They are (in summary):
  6. Although the four matters are considerations mandated by FOI Act s 66(2), they do not exhaust those permissibly relevant to the recommendation discretion. Their non exclusive relevance is patently expressed in FOI Act s 66(2) itself. The subsection commences with the words “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 ... ”.

SUCCESS OR SUBSTANTIAL SUCCESS


  1. The assessment of success, or substantial success, involves consideration of the original application, the decision under review, the respondent’s subsequent conduct and the Tribunal’s actual decision.

THE VASTA DECISION 18 OCTOBER 2007


  1. On 24 August 2007 Mr Vasta requested the reports and findings of all audits carried out in 2006 and 2007:
  2. In its 18 October 2007 decision CASA identified audit reports relating to eight different organisations as responsive to Mr Vasta’s request. It claimed they were all exempt documents. CASA said they were exempt under FOI Act s 40(1) (because of the potentially adverse effect of their disclosure on CASA’s compliance audit activities) and also FOI Act s 43(1)(c)(i) (because of the potentially adverse effect of their disclosure on the maintenance and repair organisations to which they related). That decision was confirmed on 13 November 2007. In that decision CASA expressed the concern that disclosure of the documents sought would inhibit frankness and candour in future audits of maintenance organisations. CASA contended that it relied on such expected candour in being able to conduct its safety regulation functions effectively. In the course of these proceedings the precise particulars of the contentious reports differed from those identified in the initial decision. CASA agreed to disclose some of the audit reports for which it had originally claimed exemption. Those audit reports which ultimately were the subject of the contested exemption claim are referred to in paragraphs [15(a)], [93] and [94] of the 6 July 2010 reasons for decision.

THE MCKINNON DECISION – 31 OCTOBER 2007


  1. On 7 August 2007 Mr McKinnon requested documents relating to repairs and maintenance standards for Qantas aircraft. The particular documents he sought were:
  2. In its initial 31 October 2007 decision CASA identified 24 documents as responsive to Mr McKinnon's request. It claimed 19 of those documents were exempt - on various identified grounds permitted by FOI Act ss 40(1), 43(1)(c)(i) and 45. The decision was affirmed on 23 April 2008. The review officer decided that all of the 19 contentious documents were exempt under FOI Act s 43(1(c)(i) (because of the potentially adverse effect of their disclosure on Qantas). The review officer also decided that nine of the documents were exempt under FOI Act s 40(1) (because of the potentially adverse effect of their disclosure on CASA’s compliance audit activities).
  3. In the course of the review proceedings CASA identified a number of additional documents that were responsive to Mr McKinnon’s request, but whose existence and disclosure had not been specifically addressed in its reviewable decision. These were the 53 Service Difficulty Reports referred to in paragraphs [15(b)], [23], [24] and [25] of the 6 July 2010 reasons for decision. CASA claimed exemption for these documents, on substantially the same grounds as the other contentious documents.
  4. Messrs Vasta and McKinnon successfully challenged the sufficiency of the documents CASA had lodged with the Tribunal in its initial attempt to comply with its obligations under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) s 37. Their challenge sought the production of (i) a CASA report on a specific special review of Qantas maintenance (ii) a CASA report on Qantas’ Brisbane heavy maintenance scheduled for 2007, (iii) applications, approvals and audits of locations outside Australia at which Qantas conducted heavy maintenance, and (iv) a range of other documents relating to overseas aircraft maintenance locations. The full list of the documents sought is set out in paragraph [1] of the Tribunal’s 16 December 2008 decision Re Vasta and Civil Aviation Safety Authority / Re McKinnon and Civil Aviation Authority (2008) 110 ALD 401; [2008] AATA 1120. The existence of at least some of these documents had been disclosed in various media releases and reports of interviews, including a CASA media release dated 1 September 2008. (The content of these media releases is briefly summarised in paragraphs [11], [12], [13] and [14] of the Tribunal’s 16 December 2008 reasons for decision).
  5. In its 16 December 2008 decision the Tribunal ordered CASA to lodge the requested documents with the Tribunal. The Tribunal considered that the additional documents sought were potentially relevant to (i) any determination of the nature and extent of any risk to public safety, (ii) assessment of the reasonableness of disclosure in the public interest, and (iii) assessment of the nature and extent of any adverse effect of disclosure on either Qantas or CASA. Subsequently, pursuant to a further interlocutory decision on 3 June 2009, many of these documents were made available to Messrs Vasta and McKinnon, subject to the restriction that their use was limited to the purpose of the review proceedings.
  6. On 12 August 2009 the Tribunal gave effect to agreements between Messrs Vasta and McKinnon and CASA about the release of some of the contentious documents for which CASA had previously claimed exemption. The Tribunal’s 12 August 2009 decision set aside each of the reviewable decisions, decided that some of the contentious documents were not exempt, and directed that copies of them be provided to the respective Applicants. The decision involved six documents relating to Mr McKinnon’s FOI application, and six documents relating to Mr Vasta’s FOI application.
  7. This summary of material events, including the Tribunal’s 6 July 2010 reasons for decision, indicates that CASA’s reviewable decisions:

CASA’S POSITION ON THE APPLICANTS’ SUCCESS


  1. CASA provided written submissions on costs after the Tribunal’s 6 July 2010 decision. In these submissions CASA did not contest the proposition that either of the Applicants had been successful, or substantially successful, in their respective applications.
  2. Previous Tribunal decisions require an applicant’s success, or substantial success, to be determined as a matter of practical judgment rather than the actual form or terms of the final review decision. Consequently an application that has been formally dismissed or withdrawn may nevertheless be characterised as one where the applicant has been relevantly successful. Such a characterisation will be appropriate, for example, if the decision maker has relevantly acquiesced to the original application without the need for a Tribunal decision: Brighton-Stangstins and Australian Competition and Consumer Commission [2008] AATA 773 at [19] and [25] to [32] – citing Re Paterson and Department of Home Affairs and Environment (No’s 1 & 2) (1985) 7 ALD 403 & (1985) 8 ALD 227. Conversely an application will not justify characterisation as “successful or substantially successful” if the final decision merely requires disclosure of relatively immaterial documents, or documents whose contents have already been substantially available to the applicant: Re Novak and Australian Federal Police [2010] AATA 295; (2010) 115 ALD 166 at [10].
  3. The disjunctive criterion of success or substantial success disposes of the potential difficulty of determining whether an application has been wholly successful. Such a difficulty could arise in Mr Vasta’s case because of the rejection of his contention that some of the documents that were the subject of the Tribunal’s 16 December 2008 decision were also responsive to his original FOI application. (This contention was rejected in paragraphs [135] to [138] of the 6 July 2010 reasons for decision).
  4. Mr Vasta’s review application was substantially successful because all of the originally contentious documents were ultimately released to him as a consequence of the Tribunal’s decisions of 12 August 2009 and 6 July 2010. It is not suggested by CASA that any of these documents were otherwise available to Mr Vasta.
  5. The 6 July 2010 reasons for decision (particularly the contents of the “Decision” column in the Schedule “Exempt Documents Claim – Vasta request”) disclose that the ultimately contentious audit reports were generally supportive of the standards of the maintenance organisations to which they related. The same is true of the general nature and content of audit reports that were the subject of the Tribunal’s 12 August 2009 consent decision. In this very general sense the contents of the totality of the relevant audit reports could be characterised as comparatively unremarkable, and merely confirmatory of the proposition that required safety standards were generally being met.
  6. I do not think that either the comparatively unremarkable content of the contentious audit reports involved in Mr Vasta’s FOI application, or the rejection of his contention in relation to the documents CASA subsequently produced to the Tribunal, provides a sufficient basis to withhold satisfaction that he was substantially successful “in his ... application to the Tribunal”. On the contrary, the substantial points at issue in the review proceedings were CASA’s claims about the potential impact of disclosure on: (i) its own audit and supervision activities; and (ii) the affairs of the organisations to which the reports related. The 6 July 2010 reasons for decision rejected CASA’s contentions on both these points. The rejection involved, in my opinion, substantial success for Mr Vasta’s application – having regard to the ultimate release to him of copies of all audit reports involved in the reviewable decision.
  7. Mr McKinnon’s application was successful to the extent that:
  8. The originally contentious documents released to Mr McKinnon in some cases supplemented information alluded to either in press reports or in media releases by CASA or Qantas. But the documents themselves, and the more specific details they contained, were not otherwise available to Mr McKinnon.
  9. Most of the documents released to Mr McKinnon as a consequence of the review proceedings were the Service Difficulty Reports (SDRs). In the form in which CASA provided these to the Tribunal they typically included two components: (i) the formal SDR itself; and (ii) additional follow up information Qantas had subsequently provided to CASA. (In the 6 July 2010 reasons I described the different contents of these components, and characterised them respectively as: (i) the “major defect reports”; and (ii) the “Qantas SDR Documents” – see paragraphs [101] to [110] of the 6 July 2010 reasons for decision.) The 6 July 2010 decision was that the “major defect reports” were not exempt documents, but should be subject to some deletions. The Qantas SDR Documents, on the other hand, were typically held to be exempt documents.
  10. I summarised the formal SDR content requirements (under the Civil Aviation Regulations 1988 reg 52A in paragraph [24] of the 6 July 2010 reasons for decision. As I there stated, CASA publishes on its website a log of all notified service difficulty reports. The log includes an indicative, but highly condensed, summary of the reported defect and the circumstances of its detection. The publicly accessible log typically includes the aircraft type, but no other explicit details of the personnel or organisations involved. (It does not, for example, include any of the additional follow up information of the kind contained in the “Qantas SDR Documents”). However, because some aircraft types are unique to particular operators, an appropriately informed person could surmise the likely identity of the operator to which at least some SDRs relate.
  11. The different elements of the Tribunal’s decision on Mr McKinnon’s review application make assessment of its degree of success an essentially impressionistic matter. But the standard that must be applied to the assessment is not capable of precise expression. Previous Tribunal decisions have referred to the threshold requirement that “substantial” means more than minimal or trivial success: Re Lobo and Minister for Immigration and Citizenship [2007] AATA 1038 at [15] citing Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union [1978] FCA 45; (1979) 27 ALR 367 at paragraphs [374] and [382]. The degree of success of Mr McKinnon’s application is more than minimal or trivial, having regard to both the number and nature of the documents that have been released, and also to the extent that CASA’s reviewable decision has been held to have failed to correctly identify the responsive, or potentially responsive documents. In particular, Mr McKinnon shared Mr Vasta’s success in successfully challenging CASA’s fundamental argument that disclosure of the relevant documents would materially inhibit frankness and candour in the future disclosure of information by airline operators and maintenance organisations. In my opinion these various aspects of the Tribunals decision on Mr McKinnon’s review application lead to assessment of his application for review as substantially successful.

FINANCIAL HARDSHIP


  1. The costs of the proceedings are likely to be substantial. But it is problematical whether either of the Applicants will actually be required to meet them personally. Mr Vasta made his application in connection with his role as the assistant federal secretary of the Australian Licensed Aircraft Engineers Association (ALAEA). Mr McKinnon was acting as in his role as the freedom of information editor for the Seven Network. Each of those organisations appears to have had a genuine interest in the applications and the proceedings. They are likely to have encouraged their pursuit, in accordance with their general interests and functions. Any such encouragement would likely generate a corresponding expectation, on behalf of each of the Applicants, of contribution to the costs. Furthermore, and irrespective of any expectation of either personal liability or contribution, there is no evidence of either applicant’s financial capacity. Nor is there any evidence of the actual amount of the costs involved.
  2. In the circumstances I cannot conclude that payment of the costs of the proceedings would cause financial hardship to either Mr Vasta or Mr McKinnon.

COMMERCIAL BENEFIT


  1. Each Applicant’s respective status suggests a congruence of interest between the subject matter of the applications and the general interests and functions of the Seven Network and ALAEA. In that general sense each Applicant has a degree of commercial benefit from the outcome of the review proceedings. In Mr Vasta’s case the success of the proceedings will provide some affirmation for the effectiveness of his performance in promoting ALAEA’s interests and functions. The mere fact of the success of the application, together with the content of the disclosed audit reports, will provide some marginal enhancement of its reputation for effective representation of its member’s interests.
  2. Similar, but not identical, conclusions apply in the case of Mr McKinnon and the Seven Network. Mr McKinnon’s personal repute (relevant to the scope of his employment functions) may be enhanced by the degree of success of his application. The general repute of the Seven Network, as a commercial media outlet, may be similarly enhanced by the success of the application contested in these proceedings. It may even be the case that the contents of some documents may provide marginal assistance in permitting the Seven Network to formulate some program that has greater commercial appeal or marketability than might otherwise have been the case.
  3. These latter possibilities, though conceivable, do not have any particular substance in the existing evidence. Neither they, nor the more general benefits associated with the success of the two applications, point persuasively to any tangible commercial benefit that is demonstrably likely to accrue as a result of the success of the applications. This is certainly true of Messrs Vasta and McKinnon, in their personal capacities. I consider it is also true in relation to both ALAEA and the Seven Network. The interests of, and potential commercial benefit to, those organisations are relevant considerations even though neither of them was the actual “person making application to the Tribunal”: see FOI Act s 66(2)(c).

PUBLIC BENEFIT


  1. FOI Act s 66(2)(b) requires the Tribunal to have regard to the question whether the decision of the Tribunal “will be of benefit to the general public”. At least one decision of the Tribunal has remarked on this wording and noted that it requires consideration of the actual likelihood of benefit, rather than the mere possibility of its occurrence. More specifically, the view has been expressed that to permit satisfaction the decision will be of public benefit there must be convincing evidence that the postulated benefit will flow from the release of the documents and the information they contain: see Brighton-Stangstins and Australian Competition and Consumer Commission [2008] AATA 773 at [48]. On the other hand, in Re Lianos and Secretary, Department of Social Security (No 2) [1985] AATA 281; (1985) 9 ALD 43 at [49] Deputy President Hall said:
.... 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 nevertheless real having regard to the stated object of the Act and the right to know which the Act has created ...

  1. The evident tension between these two general propositions is best reconciled by consideration of the circumstances of the particular decision, and the actual wording of FOI Act s 66(2)(b). The predictive assessment to which the subsection refers cannot be carried out by resort to empirical aids or data that permit certainty of conclusion, even according to the comparatively undemanding causal legal criterion of balance of probabilities. Inherent in such a predictive assessment is an impressionistic, and difficult to quantify, satisfaction that there is a sufficient degree of probability of public benefit to justify regarding it as a relevant consideration in the exercise of the costs recommendation discretion.
  2. The required degree of satisfaction will necessarily be greater where the subject matter of the FOI application (and any resultant proceedings) is merely of potential interest to a special section of the public. The same applies where the actual contents of the documents concerned are of comparatively minor commercial significance, have already been substantially disclosed, or raise no issue of general principle, or appear unlikely to be the subject of further public disclosure or discussion. These characterisations arguably explain the Tribunal’s sceptical approach to the likelihood of public benefit in cases such as Brighton-Stangstins and Australian Competition and Consumer Commission [2008] AATA 773 (which related to bank charges on credit card transactions carried out in foreign currency); Re Lobo and Minister for Immigration and Citizenship [2007] AATA 1038 (which concerned documents relating to a particular business visa application); and Re Novak and Australian Federal Police [2010] AATA 295; [2010] 115 ALD 166 (which appears to have substantially involved documents relating to the investigation of charges against the FOI applicant).
  3. In the present case CASA does not dispute the general public interest in air safety generally, or in promoting public satisfaction both in the standards of aircraft maintenance and the quality of air safety regulation and supervision. But CASA does dispute that the Tribunal’s decisions in the present matters will be of benefit to the public. It does so substantially for two reasons. The first reason is that in both applications most of the documents released were held not to be exempt because, in reality, they pointed to the general adequacy of the relevant safety standards and practices, notwithstanding some occasional lapses. The second reason, principally relevant to the McKinnon application and the Service Difficulty Reports, is that the abridged substance of the reports is already available (on the CASA web site log) and the additional information in the formal Reports that have been held not to be exempt, will not provide any material public benefit.
  4. CASA’s contentions approach the matter too narrowly. In the case of the Vasta application audit documents, it is something of an oversimplification to say that all of the originally contentious audit report documents individually confirmed the adequacy of maintenance and service standards. But even if the characterisation is accepted, as I find it should be, in relation to the totality of the contentious audit report documents (as distinct from the contents of some individual reports), that acceptance does not lead to the conclusion that there is no relevant public benefit from the Tribunal decision. I am satisfied that there are in fact two components of the public benefit that will result from the Tribunal decision.
  5. The first is to establish the potential availability of air safety audit reports to the general public. That availability will be of benefit because it will afford a greater potential for informed public discussion of, and satisfaction about, details of audit practices and findings. It will also heighten both CASA’s and airline organisations’ awareness of the potential for informed independent scrutiny. I consider that this potential benefit will apply not only to the audit reports in the Vasta application, but also to the disclosure of the “major defect reports” in the McKinnon application.
  6. The second element of public benefit from the decision of the Tribunal is the rejection of CASA’s principal contention that the documents sought were all exempt because their disclosure would imperil its audit and supervision activities and, in particular, would relevantly and adversely restrict the scope of voluntary disclosure of safety related information by airline operators and organisations. In the 6 July 2010 reasons for decision I rejected CASA’s general contention to this effect, for the reason that it failed to pay sufficient regard to the actual content of the particular audit reports (in the case of the Vasta application – see paragraphs [89] to [94] of the decision) and insufficient regard to the precise contents of the “major defect reports” (in the case of the McKinnon application – see paragraphs [111] to [120] of the decision).
  7. The McKinnon application involved three categories of documents in addition to the “major defect reports” to which I have referred in the preceding paragraphs. These were: (i) the identified documents CASA contended were not responsive to the request; (ii) the correspondence (typically, but not exclusively, indicated by documents one to six in the Schedule “Exempt Documents Claim – McKinnon Request”); and (iii) the unidentified documents potentially responsible to the request. The contents of the documents in categories (i) and (ii) broadly parallel either the kinds of findings set out in the audit reports that were the subject of the Vasta application, or the contents of the “major defect reports” that were the subject of the decision in the Mckinnon application. As such, the decision in relation to those documents does not detract from the satisfaction I have earlier expressed about the public benefit that will result from the Tribunal decision. The evidence does not, of course, permit any views being expressed as to whether there are any documents in category (iii) or whether the decision in relation to them will be of public benefit.

REASONABLENESS OF THE DECISIONS REVIEWED BY THE TRIBUNAL


  1. I summarised the general nature of CASA’s exemption claims in paragraphs [30] to [33] of the 6 July 2010 reasons for decision. CASA’s two broad claims were that disclosure of the documents sought would (or could reasonably be expected to) impede its function of proper and efficient surveillance of the aviation industry, and/or unreasonably adversely affect the relevant affairs of aviation industry organisations. A significant part of CASA’s reasoning in supporting the exemption claims made in the reviewable decisions emphasised the potential significance of voluntary disclosure (to CASA) of information relating to aviation safety. CASA’s stated concern was that FOI disclosure of the contentious documents would, or could, have the adverse effects it apprehended.
  2. In the 6 July 2010 reasons for decision I addressed CASA’s apprehensions at some length. I summarised the extent to which those apprehensions were apparently shared by airline operators and maintenance organisations. (I refer here to the matters set out in paragraphs [54] to [62] of the reasons). I also considered the approach taken in other jurisdictions to the permissible extent of disclosure of aviation safety related documents under FOI legislation. (This topic was considered in paragraphs [63] to [82] of the reasons.) I accepted the proposition that the apparent amplitude of CASA’s compulsory powers might not provide a completely adequate response to CASA’s apprehensions, because “it is conceivable that both the quality and quantity of information provided to CASA might be influenced by the degree of cooperation voluntarily provided by regulated persons or organisations”: see paragraph [84] of the reasons. I pointed out that the relevant adverse risk sufficient to justify the exemption claims had to be assessed by reference to “the reasonableness of the expectation, rather than an estimate of the probability of its occurrence”: see paragraph [86] of the reasons. I also noted that it was important to assess CASA’s contentions about the exemption claims with an appreciation of the heightened risk awareness that characterises the aviation industry, and the difficulty of fully appreciating the objective reasonableness of the factors that contribute to the aviation industry’s sensitivity to safety related issues: see paragraphs [86] to [88] of the 6 July 2010 reasons.
  3. The considerations to which I have referred in the immediately preceding paragraphs make it difficult to characterise either of the reviewable decisions in the Vasta and McKinnon matters as irrational or absurd. That characterisation criterion has sometimes been suggested as the one required by FOI Act s 66(2)(d). The essential reasoning underlying this approach is that a reviewable decision should be characterised as “reasonable” if it is within the legally permissible range of possible outcomes: see, for example Brighton-Stangstins and Australian Competition and Consumer Commission [2008] AATA 773 at [56] to [59] and [64]. Conversely, a legally permissible decision cannot, or alternatively should not, be relevantly characterised as “unreasonable” for the purpose of having regard to the FOI Act s 66(2)(d) consideration: see Re Lobo and Minister for Immigration and Citizenship [2007] AATA 1038 at [28]; Re Novak and Australian Federal Police [2010] AATA 295; (2010) 115 ALD 166 at [16].
  4. The actual terms of FOI Act s 66(2)(d) mandate regard to “the reasonableness of the decision reviewed”. Those terms do not confine consideration to the question whether the reviewable decision was within the legally permissible range – which is the essential consideration implicit in the contrast between decisions that are “reasonable”, on the one hand, and those that are “irrational or absurd”, on the other. In fact, the more natural and appropriate interpretation of the mandated consideration of the “reasonableness of the decision reviewed” permits, and indeed requires, the Tribunal to form a view about the degree of reasonableness of the decision reviewed.
  5. Where the Tribunal either sets aside a reviewable decision, or otherwise determines that the applicant has been substantially successful, it necessarily follows that the reviewed decision was not the correct, or not the preferable, decision in the circumstances. Articulating cogently the nuances of distinction between “correct”, “preferable” and “reasonable” decisions is a difficult undertaking. If there is only one correct decision, any contrary decision is readily characterised as not reasonable. The same characterisation might be made where the Tribunal reaches comfortable satisfaction that a particular result is clearly “preferable” to the reviewed decision. The characterisation task is more difficult where the ultimate review decision reflects merely a marginal and impressionistic preference between closely competing alternatives. But the characterisation enquiry is apparently imposed by FOI Act s 66(2)(d). The subsection operates in the context of alternative threshold requirements of success, or substantial success. Since the alternative of “substantial success” implicitly assumes the legal permissibility of the reviewable decision, it would be odd to restrict the FOI Act s 66(2)(d) consideration of reasonableness to the mere legal permissibility of the original decision. The more likely interpretation, and the one that best accords with the literal terms of the subsection, requires the Tribunal to consider the degree of reasonableness of the reviewed decision. That consideration is not sufficiently carried out merely by expressing satisfaction that the reviewed decision had a rational basis and was, in that sense “reasonable”. In expressing that view I draw comfort from the decision of the Federal Court in Cashman & Partners v Secretary, Department of Human Services and Health [1995] FCA 1730; (1995) 61 FCR 301. In that case Beazley J considered that a decision maker’s delay was potentially relevant not only to the general discretion conferred by FOI Act s 66(1) but also to the specific consideration of “reasonableness” mandated by FOI Act s 66(2). The permissible relevance of delay to the FOI Act s 66(2)(d) criterion is inconsistent with that criterion only being concerned with the legal permissibility of the reviewable decision.
  6. I would not characterise either of the reviewable decisions in both the Vasta and McKinnon matters as irrational or absurd, and unreasonable in that sense. However, as I indicated in the 6 July 2010 reasons, both decisions were critically flawed. They were flawed principally because they failed properly to apply the general considerations on which CASA relied to the particular documents that were in contention. The particular criticisms that can be made of CASA’s reviewable decisions were addressed in paragraphs [37] to [49] of the 6 July 2010 reasons.
  7. In relation to the contentious audit reports in the Vasta matter, Mr Laws (CASA’s principal witness) ultimately disavowed any real apprehension that their disclosure would have a material impact on the CASA audit process: see paragraph [49] of the 6 July 2010 reasons. I consider that CASA’s exemption claims substantially failed to address properly the exemption criteria in relation to the contents of the particular documents. I consider that failure, whilst understandably influenced by CASA’s apprehensions about the potential impact of any disclosure, had a very low degree of reasonableness. CASA should have taken a much more conscientious approach to the application of the statutory exemption grounds to the particular documents.
  8. In relation to the McKinnon matter, two specific criticisms can be made of the reviewable decision. The first is that the decision did not even consider the Service Difficulty Reports to be responsive documents – because they had been overlooked: see paragraph [25] of the July 2010 reasons. The second is that CASA’s general claims about the effect of disclosure of the contentious Service Difficulty Reports were advanced through Mr Laws, despite the fact that he had no personal responsibility or involvement in relation to them. Mr Laws’ apprehensions about the effect of SDR disclosure had merely been suggested to him in the draft statement provided by CASA’s legal section and were not the product of his own informed and experienced assessment. Neither were they based on a detailed assessment of the individual reports: see paragraphs [46] and [47] of the reasons. CASA’s failure to identify the Service Difficulty Reports as originally responsive to Mr McKinnon’s request is understandable, when regard is had to the administrative complexity of the task involved. But in point of principle the documents were clearly responsive and should have been specifically addressed in the reviewable decision. CASA’s failure to do so was significant. The effect of that failure was compounded by the attitude CASA then took in the review proceedings in claiming exemption for the Service Difficulty Reports.
  9. There are other aspects of CASA’s reviewable decision in the McKinnon matter that detract from its reasonableness. These include what I characterised as the likely “untenably narrow views” that led Ms Ng to exclude many identified documents from consideration as potentially responsive to the request (see paragraphs [131] to [134] of the 6 July 2010 reasons). They also include CASA’s conduct in belatedly abandoning its exemption claim in relation to a substantial number of documents (as indicated in the Tribunal’s 12 August 2009 decision in accordance with AAT Act s 42C(1)).

OTHER CONSIDERATIONS

  1. I referred in paragraph [14] above to the additional section 37 documents the Tribunal ordered CASA to produce. That 16 December 2008 order was made in response to a contested application made by Messrs Vasta and McKinnon. On 3 June 2009, following another contested application, the Tribunal made a further order directing that two of those documents (which were specific CASA reports dated 22 November 2007 and 31 August 2008) be released to Messrs Vasta and McKinnon for use in connection with the proceedings. The circumstances involved in these two contested applications, on both of which CASA failed, are likely to have substantially increased the costs of the proceedings, and contributed to the length of the delay that occurred prior to the substantive hearing of the two review applications.
  2. The subject matter of the proceedings does raise a matter of significant public interest. The fundamental way in which CASA conducted itself in these proceedings was to seek to assert a point of principle about the appropriate level of disclosure of air safety related information. CASA took the view that, in effect, very wide scope should be given to the exemption grounds on which it relied in relation to the FOI exemption claims it made in its reviewable decisions. That point was, in substance the apprehension that the requested disclosure would imperil the effectiveness of CASA’s activities and materially reduce the extent of voluntary information disclosure by aviation organisations. On that point, which was in reality the principal point of contention in these proceedings, CASA failed. If CASA had not taken the approach it did, the review proceedings would very likely have been disposed of much more expeditiously than in fact occurred, and at considerably less expense.
  3. The likelihood that CASA’s conduct of the proceedings substantially increased the costs of the proceedings is a relevant consideration in determining whether to make the FOI Act s 66(1) recommendation requested by Messrs Vasta and McKinnon. That consideration, together with the point of principle addressed in the 6 July 2010 reasons for decision, point strongly towards making the recommendation sought.
  4. CASA’s 6 August 2010 supplementary costs submissions set out a different view about its conduct of the proceedings and, in particular, about the contested application relating to the additional documents it lodged with the Tribunal. (I referred to this application in paragraphs [13] and [14] above.) CASA says that few of these additional documents were in fact relevant to the review proceedings. CASA says that their substantial irrelevance was demonstrated by the facts that: (i) whilst the Applicants had sought to use the documents to advance criticisms of CASA’s performance, no such criticism was contained in the Tribunal’s findings; and (ii) the Tribunal’s reasons for decision referred to only one of the additional documents.
  5. CASA is correct in its contention that the Applicants conducted the review proceedings with an apparent motivation to criticise CASA’s performance. This was readily apparent in some of the cross examination of Mr Laws and in the Applicants’ criticism of what they regarded as CASA’s undue selectivity both in relation to some of its media releases and its FOI exemption claims. CASA is also correct in its observation that the Tribunal decision does not endorse (it expresses no view about) any of these criticisms the Applicants made. Nevertheless, I reject both CASA’s contention that the additional documents were substantially irrelevant, and that the Applicants were substantially responsible for any protracted delay or additional costs related to the additional documents. I do so for the following reasons.
  6. The first reason is that CASA had a statutory obligation, under AAT Act s 37, to produce the additional documents for the purpose of the review proceedings. The Tribunal so decided in its 16 December 2008 decision.
  7. The second reason is that CASA’s complaint about the Applicants’ criticism of its performance, and CASA’s reliance on the fact that the criticisms were not endorsed by the Tribunal, rather miss the substantial point. That substantial point was the potential relevance of the additional documents to the “information prejudice” and the “unreasonable adverse effect” exemption issues raised in the proceedings. The Applicants’ ultimate contention was that neither of these issues could be adequately assessed without an informed understanding of, and in some cases a comparison between, information that had been publicly released (the Applicants contended the releases were somewhat selective) and other detailed information to which CASA was privy. The Applicants’ point was that CASA, and some aviation organisations, were prepared to engage in media reports for the purpose of promoting their own best interests, without necessarily providing the public with all, or even the most material, relevant information. Obviously some criticism of CASA was a necessary part of the Applicants’ contentions in this regard. But the real point of the Applicants’ contentions was to provide a context for a properly informed assessment of the “information prejudice” and “unreasonable adverse effect” exemption claims.
  8. There is one final matter to which I should advert. As I pointed out in paragraph [28] above, neither Mr Vasta nor Mr McKinnon has provided any evidence of either the amount of the costs involved, or of the extent of their personal liability to pay those costs. In the absence of any such evidence there is some incongruity in making a recommendation under FOI Act s 66(1) – that “the costs of the applicant in relation to the proceedings be paid by the Commonwealth”. But the apparent incongruity is reduced by two considerations. The first is that the recommendation I propose to make is not based on any view that either of the Applicants would be caused financial hardship by paying their costs of the proceedings. The second is that the Tribunal’s function is limited to a recommendation of payment. It is a matter for the Attorney General to decide whether to act on that recommendation. It is not reasonably to be expected that the Attorney General would act on any recommendation without satisfaction that the particular applicants had in fact incurred a costs liability, and that the liability amount was in fact limited to “costs ... in relation to the proceedings”. In those circumstances, having regard to all of the other considerations to which I have referred, I do not consider that detailed (or indeed any) evidence of the Applicants’ costs is a necessary precondition that must be satisfied before the Tribunal could properly make the recommendations sought.

RECOMMENDATION

  1. In relation to the mandated considerations referred to in FOI Act s 66(2):
  2. In relation to the permissive generality of the discretion conferred by FOI Act s 66(1) I have not considered that any particular conclusion about the mandated considerations in FOI Act s 66(2) is a necessary precondition to making the recommendation sought. I have taken into account the additional considerations to which I have referred in paragraphs [50] to [57]. In taking those matters into account I have particularly concluded that CASA’s conduct of the review process was very likely to have materially increased its duration, cost and complexity. I have also considered that it is a matter for each of the Applicants to ultimately establish to the Attorney General’s satisfaction the fact and the amount of their respective liabilities for their costs in relation to the proceedings.
  3. I recommend to the Attorney General that Mr Vasta’s costs in relation to the proceedings be paid by the Commonwealth.
  4. I recommend to the Attorney General that Mr McKinnon’s costs in relation to the proceedings be paid by the Commonwealth.

I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member


Signed: sgd .................................................................

Associate


Dates of Hearing 19-22 April 2010

Date of Decision 11 February 2011

Counsel for the Applicants Mr T Brennan

Solicitor for the Applicants Ms R Eagles, Sparke Helmore

Solicitor for the Respondent Mr A Anastasi, CASA

Solicitor for Qantas Airways Limited Mr M Mackrell, Norton White

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