Public Service Board v. Scrivanich

(1985) 8 ALD 44
6 ALD 98; No. SAG 25 of 1984

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(Judgment by: Keely)

Re: Public Service Board
And: Antonia Scrivanich

Court:

Judge:
Keely

Subject References:
Administrative Law

Judgment date: 12 July 1985

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Judgment by:
Keely

The Public Service Board (the Board) has appealed against a decision of the Administrative Appeals Tribunal (the Tribunal), given on 12 June, 1984 . That decision set aside a decision refusing to grant to Ms. Scrivanich access to three documents, referred to as Documents A, B and D, and ordered the Board to give her access to them. The Tribunal in its decision held that another document, Document C, was exempt from disclosure under s. 36 and s. 40 of the Freedom of Information Act 1982, as amended, (the Act) and Ms. Scrivanich filed a cross-appeal against that part of the Tribunal's decision. Both the notice of appeal and the notice of cross-appeal were amended, by leave, at the hearing.

It was common ground that the Board is an agency within the meaning of s. 4(1) of the Act. Although the initial refusal to grant access to the four documents occurred before the amendments to the Act made in 1983 it was accepted by both parties in the proceedings before the Tribunal and also on the hearing of this appeal that the applications were to be determined in accordance with the Act, as amended; in this connexion the Tribunal referred to Re Waterford (No. 2) (1984) 5 A.L.D. 588 at pp. 600-601.

The four documents the subject of the appeal and cross-appeal were described by the Tribunal as follows:-

"Document A

Summary prepared by Mr G Cameron of the Grievance and Appeals Bureau of an interview conducted with Mr X on 25 January 1982

Document B

Summary prepared by Mr Cameron of an interview with Mr P Pledge of the Australian Taxation Office on 25 or 26 January 1982.

Document C

Mr Cameron's report to the Director of the Grievance and Appeals Bureau on Ms Scrivanich's grievance, 18 February 1982

Document D

Summary prepared by Mr Cameron of an interview with Mr V Lesiuk of the Australian Taxation Office, 26 January 1982."

At the material time Mr. G. Cameron was an officer of the Grievance Appeal Bureau.

The Tribunal found (para. 16) that all the documents fell within the requirements of s. 40(1)(c) i.e. their disclosure "would, or could reasonably be expected to ... have a substantial adverse effect on the management or assessment of personnel ... by an agency". In respect of Document C the Tribunal expressly found (at para. 13) that it could be "described as advice related to the internal processes of deliberation and as such is partly shielded from disclosure" and fell within s. 36(1)(a). Having regard to its conclusion (para. 25), immediately after its consideration of the public interest, that Documents A, B and D were not exempt from disclosure under s. 36 or s. 40 of the Act, it appears that the Tribunal found that those documents also fell within the description in s. 36(1)(a).

As to Documents A, B and D, the Tribunal, applying s. 36(1)(b) and s. 40(2) also expressed (para. 25) the opinion that the balance of the public interest lay in the disclosure to the applicant of those documents and that they were not exempted either under s. 36 or under s. 40 of the Act. On the other hand the Tribunal found (para. 26) that, on balance, the public interest lay in the non-disclosure of Document C (which is the subject of the cross-appeal) and that it was exempt from disclosure under both s. 36 and s. 40.

It should be observed that the Tribunal, in its consideration of s. 36(1)(b) and s. 40(2) of the Act in respect of all of the Documents, drew no distinction between the effect of those two sub-sections. The Tribunal approached the application of those sub-sections on the basis that the documents would not be exempt unless it was established that the balance of the public interest lay in disclosure of the document (see para. 21). At the hearing before this Court the parties did not attempt to differentiate between the effect of those sub-sections. For the purposes of resolving the questions raised by the appeal and cross-appeal, it is not necessary to express any conclusion as to whether that approach is correct; however, it is at least arguable that s. 40(2) (unlike s. 36(1)(b)) is not intended to impose a further condition that must be satisfied before a document "is an exempt document"; s. 40(2) rather provides that any matter in the document the disclosure of which would, on balance, be in the public interest to disclose, is not exempted from disclosure by s. 40(1).

It is necessary to set out certain of the relevant provisions of the Act. Section 36 provided that:-

"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.

...."

Section 40 included the following provisions:-

"40(1)

Subject to sub-section (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to-

...

(c)

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

.....

(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."

Each of the Board's grounds of appeal related to the Tribunal's findings on the issue of "public interest" under sub-sections 36(1)(b) and 40(2) of the Act. Mr. Anderson, of counsel, who appeared for the Board, contended (under ground (a)) that the Tribunal erred in law in incorrectly applying the principles enunciated in cases such as Conway v Rimmer [1968] A.C. 910 and Sankey v Whitlam (1978) 142 C.L.R. 1. However, I accept the submission by Mr. Bayne, of counsel, on behalf of Ms. Scrivanich, that, although the Tribunal referred to those cases, and considered the discussion in them of the "public interest", in the ultimate the Tribunal formed its own view as to the relevant meaning of public interest and as to where the balance of public interest lay.

Under grounds (b) and (c) it was submitted that the Tribunal had erred in wrongly assessing the function and work of the Grievance Appeal Bureau and had failed to place sufficient or any relevant weight on the nature of the Bureau's work. Mr. Anderson referred to the evidence of Mr. Forster as to the way in which the Bureau operated but he conceded that the Tribunal had considered the function of the Bureau; his criticism was rather of the Tribunal's assessment of that function. Allied to this submission was the contention that the Board had not had proper regard to the evidence that the three persons making statements to the Bureau had done so in the belief that the statements were to be given in confidence. However, the Tribunal itself (para. 15) expressly referred to the evidence as to the belief of those persons. It also quoted at some length from the evidence of Mr. Forster as to the functions of the Bureau. The question of what weight should be given to the evidence is a matter for the Tribunal and on the material the contention under grounds (b) and (c) that there was an error of law by the Tribunal cannot be upheld. It may be added that, both as to ground (b), and also as to grounds (e) and (g), Mr. Anderson frankly acknowledged the difficulties facing the Board in seeking to challenge findings of the Tribunal by submissions going to the weight of the evidence. I am unable to uphold that part of his written submission in reply (directed to grounds 4(b),(c) and (d)) which sought to overcome the Board's difficulties as to thos of its grounds of appeal which related to the weight of evidence.

Mr. Anderson did not support ground (d) in its amended form i.e. that "on the evidence that material would not have been disclosed" to her on a promotion appeal. Instead he contended that the Tribunal erred in law in that there was no evidence upon which it could decide that the documents would have been available to Ms. Scrivanich on a promotion appeal. However, the Board has failed to satisfy me that there was no such evidence.

The matters raised by the remaining grounds of appeal were referred to only briefly by Mr. Anderson. The Board has not satisfied me that there was any absence of evidence to support any finding of the Tribunal or any other error of law. As already mentioned, two of those grounds sought to raise questions going to the weight of the evidence. One of the other grounds related to the Tribunal's acceptance of "the reasons given in evidence by Mr. Christopher" as to the public interest existing in giving Ms. Scrivanich access to the records. Nor do I consider that the Tribunal "erred in law" in its application of the case of Science Research Council v Nasse [1980] A.C. 1028 (ground (h)).

The cross appeal by Ms. Scrivanich was against the Tribunal's finding that Document C (the report, dated 18 February, 1982 , to the Director of the Grievance and Appeal Bureau by Mr. Cameron on Ms. Scrivanich's grievance) was an exempt document under both s. 36 and s. 40 of the Act.

I accept Mr. Bayne's submission (ground (a)) that the Tribunal erred in law in finding (para. 13) that Mr. Cameron's report could "properly be described as advice related to the internal processes of deliberation and as such is partly shielded from disclosure". In my opinion, it was not open to the Tribunal, as a matter of law, to conclude on the material before it that Document C was :

"... 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 ...". (s. 36(1)(a))

More specifically, having considered the contents of Document C, I do not consider that the disclosure of it "would disclose matter in the nature of, or relating to, .. advice .. obtained or prepared .. in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency ..". I have formed that opinion as a matter of construction of s. 36(1)(a) and consider that it is consistent wih the views expressed in Harris v Australian Broadcasting Corporation by Beaumont J. (1983) 50 ALR 551 at 559 -560.

Having regard to that conclusion, it is, strictly speaking, unnecessary to consider ground (b) of the cross-appeal which contended that "the Tribunal erred in law in failing to consider whether the circumstance that the report ... contained opinion as to ultimate facts was sufficient to characterise it as containing purely factual material" within the meaning of s. 36(5) of the Act, "and thus render s. 36(1) ... inapplicable to that extent". However, I would accept Mr. Bayne's submission in support of that ground. The Tribunal (para. 26) stated that the report involved "an opinion as to ultimate facts and not an analysis of primary facts". In my view that passage indicates that the Tribunal assumed that such "an opinion" necessarily excluded "an analysis of primary facts". In my opinion such an assumption is not consistent with the opinions expressed by the Full Court in Harris v Australian Broadcasting Commission (1983) 51 A.L.R. at p. 586).

In respect of the Tribunal's finding that Document C was exempt from disclosure under s. 40 of the Act, I accept Mr. Bayne's submission (under ground (c)) that the Tribunal erred in law in its consideration of whether disclosure of the report "would, or could reasonably be expected to ... have a substantial adverse effect on the management or assessment of personnel ... by an agency" (s. 40(1)(c)). In this regard it was contended in ground (c) that the Tribunal failed "to have regard to the degree of relative harm necessary to warrant such a finding". Mr. Bayne's submission made it clear that the alleged failure was a failure to advert to the question whether there was "a sufficient degree of gravity about the matter". He relied upon the dictum of Beaumont J., in dealing with s. 40(b) of the Act (before its amendment) in Harris v Australian Broadcasting Commission (supra at 564):-

"Under s. 40(b), exemption is given only if 'a substantial adverse effect' of the kind there described can be established. In my opinion, no such inference should be drawn here. It is possible to imagine that disclosure of the reports at this stage could possibly embarrass those charged with supervising or reviewing the operations of the Legal Department of the Corporation. However, I am not persuaded that any such effect, even if adverse, could fairly be described as 'substantial' in its impact (see Tillmanns Butcheries Pty. Ltd. v Australasian Meat Industries Employees' Union (1979) 27 ALR 367 at 374, 382). In my view, the insertion of a requirement that the adverse effect be 'substantial' is an indication of the degree of gravity that must exist before this exemption can be made out."

The Tribunal's reasons for decision on his aspect are very brief and appear to be based upon the Public Service Board's written submission to the Tribunal. However, I accept the submission that there was an error of law in the Tribunal's approach to the question of the proper construction of s. 40(1)(c). Although the Tribunal quoted (in para. 16) the words "sustantial adverse effect" from s. 40(1)(c), it did not discuss the meaning of the important word "substantial"; nor did it refer to the dictum of Beaumont J. quoted above, although the Tribunal had earlier (paras. 9 and 11) referred to that decision; nor did it attempt to reconcile its view (in para. 16) that the Public Service Board's "arguments have force as indicating a 'substantial adverse effect ...'" with the following dicta (which were quoted in paras. 14 and 25 in the Tribunal's decision) from the decision of the Tribunal (Davies J. presiding) in Re Witheford (1983) 5 A.L.D. 534 at 544 :-

"However, whatever view of the law be adopted, the fact that the writer of the document would not have put his comments in such frank terms if he had thought they would be disclosed to Mr. Witheford is scarcely, of itself, a sufficient ground for a finding that disclosure of the document would be 'contrary to the public interest', under s. 36(1) or would have 'a substantial adverse effect on the staff management interests of the Commonwealth or of an agency, within s. 40(c) or that its disclosure 'would constitute a breach of confidence', which s. 45 precludes.

....... if they are exempt documents, it must be possible to identify the characteristics of each document or other circumstance which leads to this conclusion. Clearly, a document is not an exempt document simply because its author may have written in other terms if he or she had thought that the document would be disclosed to the person whose affairs were discussed in it. Indeed, where a document on a personal file is written in embarrassingly frank terms, the public interest may require its disclosure so that steps can be taken under Pt. V to amend the personal file by removing or correcting material that is incomplete, incorrect, out of date or misleading."

Having regard to my conclusions that the Tribunal erred in law in its consideration of whether Document C fell within section 36(1)(a) and 40(1)(c), it is not necessary to consider, in relation to that document, whether the Tribunal erred in law in concluding that on balance the public interest lay in non-disclosure of it. However as each of the other grounds of the cross-appeal were argued I will briefly express my views on some of them.

Mr. Bayne submitted that, although the Tribunal referred (para. 9) to the onus of proof being upon the agency under s. 61, it "did not advert sufficiently" to the question of onus. I am inclined to uphold the contention in ground (d) that "no Tribunal properly directing itself could have been satisfied that the Agency had discharged the onus of proof cast upon it to establish that disclosure of that report of Mr. Cameron would be contrary to the public interest".

Under ground (e) of the cross-appeal it was contended that the Tribunal erred in law in taking into account an irrelevant consideration, namely, its finding (para. 26) that Mr. Cameron's report could "be characterized as a 'high level communication' within the group so classified" by Lord Upjohn in Conway v Rimmer and another [1968] A.C. 910 . Mr. Bayne submitted that, on the material before it, the Tribunal erred in law in characterizing the report as a "high level communication"; he also submitted that the dictum of Lord Upjohn has not been accepted in Australia and should not have been applied by the Tribunal in this case. I would accept both of those submissions.

I have not found it necessary to reach any conclusion as to whether, as contended under ground (f), the Tribunal erred in law in finding (para. 26) that the report was "different in degree from the normal report by a superior officer on subordinates seeking promotion"; nor as to whether the Tribunal, in taking into account that consideration, had regard to a consideration which was not relevant to the matter which it had to determine.

Nor have I found it necessary to decide whether, as contended under ground (g), there "was no evidence to support the Tribunal's finding that the report ... was not a record which could be subject to amendment at the instance of the applicant under Part V" of the Act. It is not entirely clear that the Tribunal took that matter into account as a relevant consideration. Again, I have not found it necessary to reach any conclusion as to ground (h) or ground (i) of the cross-appeal.

Mr. Bayne conceded that if his submission on s. 36(1)(a) was upheld, the matter would "probably have to be remitted to the Tribunal, so the agency could ... argue their s. 45 claim".

For the reasons given, in my opinion the appeal by the Public Service Board against part of the decision of the Tribunal should be dismissed, and an order made affirming the decision of the Tribunal that Documents A, B and D are not exempt from disclosure. The cross-appeal by Ms. Scrivanich should be allowed and orders made setting aside the decision of the Tribunal on 12 June, 1984 that Document C is exempt from disclosure under s. 36 and s. 40 of the Freedom of Information Act and remitting the case, in so far as it relates to Document C, to the Tribunal to be heard and decided again either with or without the hearing of further evidence as the Tribunal may determine.

It is perhaps desirable to record that the two books of documents (which included copies of Documents A, B, C and D, together with the transcript of the proceedings before the Tribunal) supplied to me for my use in the course of hearing this case have been destroyed.