BY v Director General, Attorney General's Department

1 These applications for review are made pursuant to the provisions of the Freedom of Information Act 1989 (FOIA). The applicant during 1998 made two requests for access to documents held on his files by the Legal Practitioners Admission Board (LPAB) relating to applications made by him for admission to practise as a legal practitioner in New South Wales. 2 The first of the two requests is now the subject of the application for review no. 013088; and the second which sought access to any documents added to the file since the first was processed is the subject of application for review no. 013087. Functions of LPAB 3 The LPAB is a statutory body created by s 9 of the Legal Profession Act 1987 (LPA). By virtue of s 9(2) it has and may exercise the functions conferred or imposed on it by or under the LPA or any other Act. It is made up of 9 members, headed by the Chief Justice of New South Wales. 4 The LPAB has the power to refuse the application of a candidate for admission as a legal practitioner: s 12(2). The applicant may appeal to the Supreme Court against the refusal of an application for admission under s 12: s 14(1). It is obliged not to admit to practice any candidate unless it 'is satisfied that the candidate is of good fame and character and is otherwise suitable for admission': s 11. 5 It is also possible for a person to apply to the LPAB for a declaration that matters disclosed by the person will not, without more, adversely affect an assessment by the Board of his or her good fame or character or suitability for admission: s 13(1). Similarly an applicant may appeal to the Supreme Court against such a refusal: s 14(2). The Requests 6 A number of documents were released in response to the two requests. Others were the subject of claims for whole or partial exemption. 7 The request was one of a number of similar requests made by the applicant to all government agencies (State and Commonwealth) which, he believes, have been the recipients of information of a similar kind to that exempted in this case. As a result he believes that he has some, at least, of the documents refused by the agency in this case because of different responses by some of the other agencies. He has also believes that he has received in the context of criminal proceedings some of the documents for which the LPAB has claimed exemption. 8 All of the documents sought, as the LPAB acknowledges, involve accusations made to it about the conduct of the applicant, and it says this information was given in the expectation that it would be treated confidentially. The applicant states that this information has almost certainly been given to the LPAB by some or all of at least seven people known to him who, he says, have been, for many years, running a smear campaign against him involving the making of false allegations of serious criminal offences and other misconduct by him. 9 The applicant wants to have those documents released to him so that he can then exercise his rights under FOIA ss 39 & ff to have inaccuracies and falsehoods amended or deleted. 10 He said in the course of hearing that he wanted to ensure that the LPAB not have these documents before it when next considering his application for admission; or at least only have the documents before it in a properly amended form. 11 The applicant has placed before the Tribunal copious material in support of his contentions. 12 Both determinations were the subject of internal review processes, which confirmed the determinations (see letters attached to the respective applications for review). Since those decisions the applicant has exercised his right to have the matter further reviewed by the Ombudsman; and on 17 April 2001 lodged the applications for review. There have been several planning meetings in relation to the applications, with further documents from the files being released to the applicant. 13 The Tribunal disposed of preliminary issues raised by the agency and the Premier intervening (as Minister administering FOIA) in relation to the operation of s 57 of FOIA: see BY v Director General, Attorney General's Department [2002] NSWADT 79; and at a further hearing on 31 July 2002 found that in terms of s 57 there were 'reasonable grounds' for the agency's claim made in respect of seven of the eight documents that remain in issue that they were exempt within the meaning of the 'restricted documents' exemption, cl 4(1)(b) of Schedule 1 to FOIA. At that time, the question of the scope of the application of cl 4(1)(b) to non-police agencies was not closely considered. This issue is addressed in these reasons. 14 The two applications were the subject of a hearing on 19 September 2002. Documents in Issue 15 Many of the documents that were the subject of refusal in the original determinations have since been released in whole or in part. The following documents remained in issue when the 'reasonable grounds' inquiry was held on 31 July 2002, and have continued to remain in issue (and for clarity were listed in a revised schedule of exempt documents supplied to the Tribunal on 20 September 2002): In respect of application no 013087: Document 9, described as Handwritten note of telephone conversation; Document 13, handwritten note; Document 16, Letter to LPAB and accompanying documents. In respect of application no 013088: Document 12, anonymous typed letter addressed to the Solicitor's Admission Board; Document 13, anonymous typed letter addressed to the LPAB; Document 14, anonymous typed letter addressed to the Barristers and Solicitors Admission Board; Document 15 (pages 1-4 only), anonymous typed letter addressed to the Barristers and Solicitors Admission Boards; Document 18, unsigned statement of 'X' (partial exemption claimed). 16 In the case of the last document, Document 18/013088 (a statement to police), the agency refused disclosure of parts of the document on the basis that disclosure would involve the unreasonable disclosure of the author's personal affairs (cl 6, Sched 1 to FOIA). Clause 6 provides: ' 6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.' 17 In the case of the other seven documents, the agency has claimed on reasonable grounds that they were exempt on the basis that disclosure could be reasonably expected to enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained (cl 4(1)(b), Sched 1 to FOIA). Clause 4(1)(b) provides: ' 4 Documents affecting law enforcement and public safety (1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: ... (b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, ...'. 18 In the case of all seven documents Mr Singleton for the agency at hearing said that the agency also claimed that they were exempt on the basis that they contained material the disclosure of which would disclose information obtained in confidence, could reasonably be expected to prejudice the future supply of such information to the Government or an agency, and would, on balance, be contrary to the public interest (cl 13(b), Sched 1 to FOIA). (I note that in respect of one, Document 16/013087, the agency did not include a claim under cl 13(b) in its written schedule provided on 20 September 2002. I have proceeded on the basis that Mr Singleton's submission was the accurate one on this question. There is nothing on the face of the document to suggest that it is other than one of a similar kind to the other six documents for which the dual claim was made.) 19 Clause 13(b) provides: ' 13 Documents containing confidential material A document is an exempt document: ... (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest.' 20 Because of concerns on the part of the applicant that material that might cause damage to his reputation (as he sees it unfairly and maliciously) not be published, the recitation of the factual background to this matter and the degree of reference to the documents that can be made in these reasons must be constrained. There are also issues of confidentiality affecting the agency; and the Tribunal is obliged not to disclose in its reasons for decision any exempt matter (see FOIA, s 55). Evidence and Submissions 21 In support of its determination the agency placed the following evidence before the Tribunal: two affidavits, including one that was confidential to the Tribunal, both sworn by Roger William Wescombe, Executive Officer, LPAB; the Documents in Issue (Confidential Exhibit). The applicant also filed an affidavit and gave evidence at hearing. There were also written submissions from both parties. (In addition to his earlier submissions, I have taken account of the applicant's submissions dated 16 October 2002 and 20 December 2002.) 22 The applicant has held the necessary academic and practical training qualifications for admission to practise for some years. Shortly after obtaining those qualifications he applied for admission. In light of disclosures made by the applicant, the application was refused by the LPAB, but it stated that 'would entertain a further application supported by a proper submission as to why you should be admitted, taking into consideration previously disclosed matters.' Some time later the LPAB informed the applicant that in light of serious criminal charges then pending against him it would not further consider his application for admission until those matters were resolved. Ultimately the one conviction incurred by the applicant in relation to one of those charges was set aside and an acquittal entered. The applicant has chosen not to proceed formally to make a further application for admission: see para 29 of his affidavit. 23 In his open affidavit Mr Wescombe explained the functions of the LPAB, and the relevance of confidential reports to its deliberative processes. In submissions, counsel for the LPAB acknowledged that considerations of procedural fairness may ultimately give rise to a situation where the confidential reports may have to be exposed to an applicant. 24 In his submissions the applicant has referred to the injustice, as he sees it, of material being held on file about him that is in the nature of denunciations of him, and to which he has no ability to respond. He has also speculated as to the identity of the person or persons whose reports are held on file. He invites the Tribunal to examine the history of various Court and other proceedings that have involved him and the people he believes are his accusers so as to form a view as to the maliciousness of their intentions towards him. Clause 6 25 For convenience the one document not affected by the cl 4(1)(b) exemption, Document 18/013088, will be dealt with separately. The substantial contents of this document have been released to the applicant. The document is a statement to the police made by the complainant regarding alleged criminal offences by the applicant. The nature of the material deleted is self-evident from the text that has been released: the name of the complainant, past and present address information, employment information, the names of other persons mentioned in the statement by the complainant apart from the applicant. 26 It is clear, I consider, that information of this kind is information relating to the personal affairs of the complainant and the personal affairs of other individuals who have furnished the information in the setting of reporting an alleged crime. The conduct complained of is said to have occurred in the course of the ordinary conduct of the private life of the complainant and of the other people mentioned. 27 The main issue that this claim for exemption raises is whether the second limb of the exemption is satisfied, i.e. would disclosure involve an 'unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased)'. 28 The applicant stated that he had received an unexpurgated copy of this document in the course of criminal proceedings against him; and had heard the maker of the statement give evidence. The LPAB did not contest this statement. 29 The present discussion has a somewhat absurd quality. The applicant already has the document by other lawful means, but now he seeks it under FOI. He is not having information relevant to him withheld from him by government. He says he already has it. 30 There is, on first impression, some cogency in the applicant's stance that, as he already has the document, how could it be 'unreasonable' for him now to be given it under FOI. 31 Counsel for the LPAB nonetheless contended that it would be unreasonable to disclose the document. The argument, in essence, was that disclosure within the confines of criminal proceedings involved a protected form of disclosure, whereas disclosure under FOI involved an unprotected form of disclosure, and in effect disclosure to the world. 32 Counsel noted that often special restrictions applied to disclosure in the context of criminal proceedings, and that parties sometimes faced sanctions (such as contempt, or offences against specific provisions conferring confidential or restricted status on certain types of information) if they republished information given to them under the strict requirements as to fairness that apply to such proceedings. 33 The significance of these submissions was borne out later in the proceedings when the applicant stated that the criminal proceedings brought against him had been conducted under what he described as a 'blanket prohibition order' and they were not reported in the press. He said there were prohibition orders in respect of various persons including the alleged victim, as well as of his name. 34 It follows, I consider, that in light of the indication that suppression orders applied to the trial, this Tribunal should continue to furnish protection in relation to those limited matters which have not been disclosed to the applicant on this occasion. 35 The applicant contends that the contents of the statement are all untrue and not worthy of protection. An inquiry into the truth of the statements is not one that the Tribunal can properly make in the context of an FOI proceeding. The original recipient of the statement, the police and possibly prosecution authorities, are in a position to form a view as to accuracy and truthfulness of the statement. They have not sought to withdraw the document from circulation, or qualify its contents: see further my observations in Mauger v General Manager, Wingecaribbee Shire Council [1999] NSWADT 35. 36 The rights of amendment given by FOIA, which may necessitate the addressing of these questions, only extend to documents relating to the personal affairs of the applicant that have been released to the applicant. The legislative scheme supports the conclusion that the Parliament did not intend proceedings relating to disputes over claims to exemption to become examinations of the inherent accuracy of the documents in issue. Clause 4(1)(b) 37 As Cossins has noted: 'The exemption [cl 4(1)(b)] is ... directed towards protecting the flow of information from the public rather than the contents of the document': Annotated Freedom of Information Act New South Wales (1997) [104.14]. 38 The agency has the onus of proof to satisfy the Tribunal that the information was supplied on a confidential basis or in circumstances from which confidentiality could be implied. 39 Mr Wescombe's evidence referred to each of the documents for which this exemption had been claimed. At paras 12-18 of his affidavit he sets out his reasons for considering why cl 4(1)(b) applies to each of the seven documents. There is, I consider, clear evidence that the person or persons providing the information wished to protect their identity and the contents of the information disclosed in the case of Document 13/013087, Document 16/013087, Document 12/013088, Document 13/013088, Document 14/013088, Document 15:1-4/013088. In each case the maker of the statement states, or has been recorded as stating, that they desire anonymity or protection from legal action. The first document in the sequence, Document 9/013087, does not contain any express statement. However I am satisfied from the contents of the document and the surrounding information given by Mr Wescombe that the maker of the statement recorded there would have desired anonymity. 40 This conclusion does not dispose of the question of whether reliance on cl 4(1)(b) has been made out. 41 It is necessary also to establish that disclosure sought to be prevented is one that relates to 'the enforcement or administration of the law'. 42 The LPAB's functions have been outlined. They are connected with the administration of the law as it relates to the certification of persons seeking admission to practise as legal practitioners. So in that general sense it can be said that its functions relate to the 'administration of the law'. 43 But there are indications in the headings and content of cl 4 that it is an exemption directed towards the protection of criminal justice and emergency services functions. It is necessary to set out the whole of cl 4: ' 4 Documents affecting law enforcement and public safety (1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: (a) to prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, or (b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, or (c) to endanger the life or physical safety of any person, or (d) to prejudice the fair trial of any person or the impartial adjudication of any case, or (e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or (f) to prejudice the maintenance or enforcement of any lawful method or procedure for protecting public safety, or (g) to endanger the security of any building, structure or vehicle, or (h) to prejudice any system or procedure for the protection of persons or property, or (i) to facilitate the escape from lawful custody of any person. (2) A document is not an exempt document by virtue of subclause (1): (a) if it merely consists of: (i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or (ii) a document containing a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or (iii) a report on the degree of success achieved in any programme adopted by an agency for dealing with any contravention or possible contravention of the law, or (iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or (v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and (b) if disclosure of the document would, on balance, be in the public interest. (3) A document is an exempt document if it is a document that has been created by: (a) the Information and Intelligence Centre of the Police Service or the former State Intelligence Group, or (b) the Protective Security Group of the Police Service, the former Special Branch of the Police Service or the former Bureau of Criminal Intelligence. (4) In this clause, a reference to the law includes a reference to the law of the Commonwealth, the law of another State and the law of another country.' 44 The heading to the provision refers to 'documents affecting law enforcement and public safety'. This first exemption category found in cl 4(1)(a) includes after the words 'a possible contravention of the law' the words '(including any revenue law)'. If the first reference to a 'possible contravention of the law' had been intended to have a sweeping meaning it would not have been seen as necessary as to add the words 'including any revenue law'. The same extension of meaning to the field of 'revenue law' is found in cl 4(1)(e). 45 Other exemptions point towards the view that cl 4(1) seeks to uphold public interests that are concerned with the police, emergency services and, in at least one instance, the custodial functions of government (see (cl 4(1)(i)). Similarly cl 4(3) points towards a construction being adopted which limits the expression to the criminal justice and emergency services areas. That sub-clause declares that all documents held in certain agencies are to be regarded as exempt - the agencies are all connected with the Police Service. 46 In Accident Compensation Commission v Croom [1991] 2 VR 322 the Appeal Division of the Supreme Court of Victoria addressed the scope of the equivalent Victorian provision. Here the agency responsible for assessing accident compensation claims sought to withhold its medical practitioner's confidential report on the applicant. The Court was not satisfied that the exemption at s 33(1)(c) of the Victorian Freedom of Information Act 1982 was applicable. That exemption provides that a document is exempt if it 'would, or would be reasonably likely to - ... disclose, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law.' 47 Young CJ referred to the imprecise quality of much of the language of the FOI law. He indicated at 324 his agreement with the views of O'Bryan J on the interpretation to be given to the words 'the enforcement or administration of the law'. 48 O'Bryan J examined the statutory context in which the words appeared, and the kind of governmental interests that were addressed. He concluded at 328 that: 'A careful examination of all of the paragraphs in s 31 indicates to me that for a document to fall within one of the exemptions it should have a connection with the criminal law or with the legal process of upholding or enforcing civil law.' 49 At 329 O'Bryan J turned to the question of the role played by the 'informer' exemption. He said: 'The plain meaning one might ascribe to this paragraph is that it is concerned with the protection of the 'informer' and not with the protection of a potential witness who would prefer not to be identified. Public interest has dictated for a long time the need to protect the true 'informer' but a reluctant witness has never attracted the immunity at common law. ... In my opinion, the words 'confidential source of information' do not apply to a potential witness in a civil proceeding who would prefer to remain anonymous for the time being. A potential witness cannot clothe himself with secrecy in relation to the administration of the law unless he is able to invoke 'informer' immunity. Nor may an investigator confer upon a potential witness 'confidential' status until it is convenient to his principal to reveal the name and address.' 50 These dicta were adopted and applied in Re Gold and Australian Federal Police and National Crime Authority (1994) 37 ALD 168. There the Administrative Appeals Tribunal observed at 174: 'The phrase "administration of the law" in the context of similar legislation in Victoria was considered by Young CJ in Accident Compensation Commission v Croom [1991] 2 VR 322 where, at 324, His Honour said, to be exempt a document "should have a connection with the criminal law or with the processes of upholding or enforcing civil law". The Costigan Royal Commission was concerned with the investigation of numerous allegations of extensive criminal activity. Whilst it was an investigation carried on at the behest of the executive government (in this case both Commonwealth and states) rather than a trial conducted in a court, it would, in the tribunal's view, be an unduly narrow approach to characterise the activities of that Royal Commission other than as being concerned with the "administration of the law". It clearly has "a connection with the criminal law" and, therefore, falls within the ambit of the phrase as described by Young CJ in Croom's case, supra.' 51 This issue was examined by the Tribunal in Watkins v Chief Executive, Road Traffic Authority [2000] NSWADT 11, where Smith JM said, referring to Croom's case: '37 I agree with the submission [by the agency] that this case provides appropriate guidance for interpreting cl 4(1)(b) of the NSW FOI Act. However, I consider that it does not support the application of that exemption to the present documents, but indeed the contrary. In my opinion, it indicates that the words "administration of the law" should be given a narrow meaning which requires the documents to be "concerned with the process of the enforcement of legal rights or duties." 38 The words "administration of the law" have no established or fixed meaning, and if given a broad reading are capable of encompassing most activities of any government authority. In my opinion, the statutory context of the words shows that such a reading was not intended. 39 The immediate context is the collocation with "enforcement of the law". I am inclined to think that cl 4(1)(b) is referring to only one type of document, for which "enforcement or administration of the law" provides a composite description of one element. Even if two alternative elements are referred to, "administration of the law" takes colour from the other element. The two elements share a connection with "law enforcement" in a broad sense of referring to the policing of criminal laws or civil obligations. The language of the exemption is directed at establishing for FOI purposes an exemption comparable with the "police informer" privilege in courts, with the reference to "or administration of the law" reflecting the extension of the privilege to informers not only to police agencies but also in some analogous situations (c.f. D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218, 230, 232, 241).' 52 The LPAB, on the other hand, is more like a licensing authority. It is not a body set up to engage in active investigation of the background of people, or of misconduct. It has no need for informers in the way that the ordinary police, a drug law enforcement agency or a taxation and corporate crime agency might have. I am not satisfied that it is the kind of body or is engaged in the kind of activities to which the exemption contained in cl 4(1)(b) should be extended. 53 In light of this conclusion it is not necessary to consider at length the considerable discussion in this case of the exact scope of 'informer's immunity' under the general law and the exceptions to it: Cain v Glass (no 2) (1985) 3 NSWLR 230) including important recent English cases such as Greater Manchester Police v McNally [2002] EWCACiv 14. If I am wrong, and cl 4(1)(b) does extend to information of the type in issue, such a discussion, in my view, is only of marginal relevance. There is sufficient guidance at this point in history of Australian FOI case-law (especially at Commonwealth level, and in Victoria, Queensland and New South Wales) to enable the issues raised by cl 4(1)(b) to be addressed, without having to return to the general law for guidance. Clause 13(b) 54 The agency also invokes this exemption in respect of all documents other than Document 18/013088. 55 Clause 4(1)(b) focuses on the protection of information regarding the existence or identity of an informant, as I see it primarily in the setting of criminal justice. On the other hand clause 13(b) focuses on the character of the information supplied. 56 The first issue is whether disclosure of the information would 'disclose information obtained in confidence'. For the reasons given above at [39] when discussing the cl 4(1)(b) claim, I am satisfied that it would. 57 The second issue is whether disclosure 'could reasonably be expected to prejudice the future supply of such information to the Government or the agency'. 58 As I have noted previously, the LPAB is, in essence, a licensing authority. It is common for licences to be subject to the requirement that the applicant be a fit and proper person or a person of good character (various expressions are used) as well as strict educational or competence requirements. 59 In the context of admission to the legal profession, an applicant is required to provide the LPAB with two certificates as to character: Legal Practitioners Admission Rules 1994, cl 99. 60 In order to identify persons whose character may be in doubt, the LPAB must rely on other intelligence available to it, such as the knowledge of members of the Board itself; reports received from third parties such as members of the public who provide information; or the results of any enquiries or checks that it makes. The receipt of reports from third parties would, I consider, be prejudiced if it were to become the case that their reports might be at risk of release under FOIA. Mr Wescombe in his affidavit gives a number of reasons as to why future supply would be placed at risk if there was disclosure in this case: at paragraphs 6 to 11. I am satisfied in terms of criterion (ii) that disclosure 'could reasonably be expected to prejudice the future supply of such information' to the LPAB. 61 Finally, for the exemption to be applicable, it is necessary for the agency to show that disclosure would 'on balance, be contrary to the public interest'. 62 FOI schemes seek to ensure that the public has as much information as is possible available to it so that in that way the public can be more fully involved in and understand the basis for government decisions and actions. The scheme of FOI laws also recognise that there are areas of government where the public interest is not served by allowing general scrutiny through FOI of processes especially some of those that precede the making of decisions and the taking of actions. The most sacrosanct is the Cabinet process, as is reflected in cll 1 and 2, and in the special provisions that surround the consideration of these exemptions by the Tribunal: ss 57 & ff. There is no public interest balance involved. 63 Clause 13(b) seeks to ensure protection of those environments in which, after careful consideration, the conclusion is reached that the predominant public interest favours the maintenance of confidentiality. 64 In my view there is a clear public interest in licensing authorities being able to receive information that goes to the character and reputation of an applicant. It may well be that the information obtained will have to be put to the applicant at some stage. But that in my view does not diminish the importance of there being an earlier stage in the handling of the information to which strict confidentiality applies. The investigative stage must be distinguished from the determinative stage. 65 Mr Wescombe, similarly, acknowledged that a point may come when consideration will have to given to whether the information obtained will be relied upon before the LPAB in formal session. Some of the documents in issue note that he informed the person of the possibility that he or she might be asked to be a witness, and sought their response. 66 Croom's case in Victoria provides an illustration of circumstances where the public interest case for non-disclosure of medical reports obtained in the context of a claim or dispute was not a strong one. The Victorian court commented that the public interest in the speedy resolution of claims may well support early disclosure of the report: at 328. On the other hand Watkins' case provides a good illustration of circumstances where the public interest in maintaining confidences clearly is the predominant public interest. There the Tribunal said at [59]: 'I have no difficulty accepting that "the proper administration of the Government" (c.f. s 5(2)(b) of the FOI Act) in its regulation of driver fitness depends significantly on the ability to receiving information volunteered by members of the public in exchange for an undertaking of confidentiality.' 67 In my view the same is the case with legal practitioner licensing. A lawyer is expected by the community to be a person of the highest integrity who will faithfully uphold the law. It is vital that the licensing body have available to it information that might show breach of the law, or other conduct which would properly place in issue the applicant's integrity especially in situations that involve vulnerable people or relationships of trust. It follows that it should be able to give secure undertakings of confidentiality to people who have information going to those issues. 68 In submissions filed on 16 October 2002 the applicant referred to the decision in Australian Securities and Investment Commission [ASIC] v Whitlam [2002] NSWSC 526 (Gzell J). ASIC sought to resist the defendant's application for production of evidence given at a private examination on grounds of confidentiality in the context of penal proceedings brought by ASIC against the defendant. ASIC sought his disqualification as a director and financial penalties. The Court rejected the ASIC case that the public interest and other factors favoured non-disclosure. In particular it was satisfied that disclosure would serve a legitimate forensic purpose of the defendant. Decisions made on public interest balances in litigation of this kind should be applied with care in FOI cases. The principles relating to discovery and production of documents in litigation should not necessarily be adopted in FOI cases. This case is, with respect, of little value in resolving the question of how to strike the balance in the present case. 69 The present applicant's history, as I think he would concede, would cause the LPAB to wish to consider the question of his good fame and character. It may well be that, as he says, the denunciations that he has suffered are malicious and unfair. FOI proceedings do not, in my view, provide the appropriate context in which to engage in elaborate examination of the bona fides, fairness or reasonableness of the confidential and sometimes anonymous reports that government agencies receive in the course of their work. 70 The reports at this point remain relevant to the functions of the LPAB. The applicant's interest in being dealt with fairly is protected by the scheme of the legislation. Once a further application for admission is made, the LPAB will have to deal with it in a procedurally fair way. 71 It may be that the source or sources of the reports to the LPAB will be requested or required to give evidence to the LPAB formal session. As already noted, it will be for the LPAB at that point to consider any requests not to give evidence, or to give evidence in closed session or subject to publication restrictions. 72 If that process results in refusal, the applicant may appeal to the Supreme Court constituted by a Judge other than one who belongs to the LPAB. There is also a power given to the LPAB to refer a matter directly to the Supreme Court for determination: s 14A. 73 I am satisfied that the agency has established that the seven documents listed earlier are exempt documents within the meaning of cl 13(b). 74 I have not considered the question of the so-called 'public interest override' discretion. In a recent decision in another matter, I have rejected the view that there is any such discretion available to the Tribunal under s 25 of the FOIA: Neary v The Treasurer, New South Wales [2002] NSWADT 261. ORDER

1. The determination of the agency to refuse to grant access to the eight documents listed in the schedule dated 20 September 2002 is affirmed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.