1. The respondent submits that the applicant would not be unreasonably affected by the disclosure of the documents. It points out that the documents are all internal ASIC correspondence or ASIC correspondence with the Legal Services Commissioner. It submits that there is a public interest in enhancing transparency around ASIC's regulatory approach, practices and functions and that the documents at issue clearly relate to the body exercising its powers under the Australian Securities and Investments Commission Act 2001. It submits that releasing the relevant information in the documents in issue advances the following public interest factors: informing the community of the body's operations, its practices in identifying and referring potential misconduct to other regulatory bodies; informing the community of the reasons for ASIC's decision to refer the matter to another regulatory body.

1. Reputation is an invaluable commodity as Iago tells us: 'he that filches from me my good name robs me of that which not enriches him and makes me poor indeed.' The reputation of a legal firm is of fundamental importance.
2. A large part of the material the subject of the application is already in the public arena. Some is not.
3. An article in The Courier Mail on 24 November 2017 entitled, 'Complaints against Gadens law firm over alleged role in Brad Sherwin deals' contained the following:

Gadens ... is the subject of complaints for its alleged role in deals involving clients of crooked financial advisor and Ponzi scheme architect Brad Sherwin.

Complaints have been made to Queensland's Legal Services Commission about Gadens, The Courier-Mail can reveal.

Some victims of Brisbane based Sherwin ... have claimed Gadens acted for them in property deals.

Some deals allegedly involved Sherwin clients being both the buyer and seller of property, or borrower and lender on property - and Gadens acting for both parties in some instances.

But some clients claimed they were unaware they had been represented by Gadens, or that Gadens was acting for both parties in deals. Gadens and the Legal Services Commission declined to comment.

1. The reputation of the firm would likely have been affected by the original publication of the article by Mr Walsh. The documents in question are from four to nine years old. The significance of the age is that from one point of view the applicant can deal with any adverse publicity arising from disclosure by drawing attention to the fact that it all happened a long time ago; but on the other hand to accede to the request by the other party has the potential to reopen old wounds.
2. The applicant also submits that the newspaper article does not contain all of the matters raised in the documents in issue. The documents in issue arose in the process of investigation and in effect contain more detail than the matters that are alleged in the newspaper article. I am satisfied that the essence of the matters involved in the documents in question is contained in the newspaper article. There are also matters raised in the documents that are not to be found in the newspaper articles.
3. ASIC was at the time investigating Mr Sherwin and his entities. It was not actually investigating the applicant. The concerns about the conduct of the solicitors were peripheral. They are concerns only and not established facts. The concerns were referred to the Legal Services Commissioner in Queensland and a great many of the documents in question deal with and demonstrate the relationship between the state appointed Legal Services Commissioner and ASIC.
4. The applicant argues that all solicitors at the firm at the time are inferentially implicated in the documents. That appears to be correct, but that observation also can be made about the newspaper article and therefore is already in the public domain.
5. On the other hand the documents in question demonstrate to the public the way in which the respondent works, how it works with another agency, and how it refers the matter to another agency. I am satisfied that the documents that indicate the interagency cooperation and which inevitably disclose a number of concerns which were already in the public arena are not such that disclosure of them could reasonably be expected to unreasonably affect the applicant's business. Those documents are number 1, 2, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 36, 37, 39, 40. They are not conditionally exempt.
6. The remaining documents deal with the inquiries, conjecture, points for consideration, questions from one officer to another, speculation, reports of some allegations and concerns of ASIC in relation to the behaviour of the applicant. Those documents are numbers 3, 4, 5, 6, 11, 20, 34, 38.
7. In looking at the matter objectively I am satisfied that disclosure of the documents in question would, or could reasonably be expected to, unreasonably affect the applicant in its lawful business or professional affairs. In reaching this conclusion I am looking at it objectively and weighing up the interest of the applicant and the public interest. I am satisfied that the firm's reputation would be affected. I take into account that the matters involved are very old and that the allegations involved are serious; that they were peripheral to the respondent's central investigation and that the applicant was not given a chance to respond to them. In making that finding I make no criticism of the respondent. The matters are also generally expressed as 'concerns'.
8. I also take into consideration that allegations of misconduct by solicitors are the responsibility of the Legal Services Commissioner in Queensland. No suggestion was made in the hearing that the Legal Services Commissioner successfully prosecuted the firm or any member of it. Hence we are left with very old, unsubstantiated allegations or concerns in relation to behaviour that was peripheral to the investigation being conducted in relation to Mr Sherwin and his businesses.
9. The documents 3, 4, 5, 6, 11, 20, 34, 38 are conditionally exempt pursuant to the provisions of section 47G(1). I have not descended into a sentence by sentence analysis of these documents with a view to dissecting each document into particular sentences that are conditionally exempt and particular sentences that are not conditionally exempt. To embark on that kind of hair-splitting exercise would render many of the documents largely meaningless. Furthermore I accept a submission of the applicant that in some of these documents statements may not appear to have an adverse impact on the applicant if read in isolation, but combined with statements in other documents they have the potential to create such an impact.
10. It is necessary therefore to turn to the provisions of section 11A(5) which provides that a person must be given access to a conditionally exempt document unless in the circumstances access to the document at that time would on balance be contrary to the public interest. Factors which favour access, and irrelevant factors are set out in section 11B(3) and (4):

(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:

(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);

(b) inform debate on a matter of public importance;

(c) promote effective oversight of public expenditure;

(d) allow a person to access his or her own personal information.

(4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:

(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;

(b) access to the document could result in any person misinterpreting or misunderstanding the document;

(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;

(d) access to the document could result in confusion or unnecessary debate.

(5) In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.

1. The underlying object of the act is in favour of disclosure.
2. Guideline 6.8 provides:

The pro-disclosure principle declared in the objects of the FOI Act is given specific effect in the public interest test, as the test is weighted towards disclosure. If a decision is made that a conditionally exempt document should not be disclosed, the decision maker must include the public interest factors they took into account in their statement of reasons under s 26(1)(aa) ...

1. In dealing with public interest factors that weigh against disclosure of documents, Guideline 6.22(b) refers to documents that 'could reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct'.
2. Guideline 6.22(k) refers to documents that 'could reasonably be expected to harm the interests of an individual or group of individuals'.

1. I am satisfied that the documents that I have found are conditionally exempt are such that they could reasonably be expected to prejudice the fair treatment of individuals because they implicate all members of the applicant solicitors and the allegations in the documents are unsubstantiated allegations, or perhaps better described as, concerns of unlawful, negligent or improper conduct; and that they could reasonably be expected to harm the interests of an individual or group of individuals'.
2. I also take into account that conduct referred to in the documents was appropriately referred to the Legal Services Commissioner and the Law Society. They are the appropriate bodies to take action in respect of improper or unprofessional conduct. There is no evidence of any adverse finding against an individual or the members of the firm. I also take into account the fact that the documents are very old and the matters with which they deal are older still. It is reasonable to assume that the Legal Services Commissioner and/or The Law Society will not take any action on any conduct referred to in the documents after such length of time. I observe specifically that I have not taken into account that the documents might be misinterpreted or misunderstood.
3. The respondent submits that disclosure would promote the objects of the act, inform debate on a matter of public importance and advance the fair treatment of individuals. It submits that it would inform the community of the respondent's operations and practices. I am not satisfied that disclosure would inform debate on a matter of public importance or advance the fair treatment of individuals. Obviously disclosure would inform the community about the respondent's operations and practices. But that submission would be relevant in every matter. In respect of the documents I have decided are conditionally exempt, it takes this matter no further.
4. In all the circumstances I am satisfied that granting access to the documents numbered 3, 4, 5, 6, 11, 20, 34, 38 would on balance be contrary to the public interest.
5. The decision of the Commissioner dated 28 May 2020 is therefore set aside. In substitution I refuse access to documents numbered 3, 4, 5, 6, 11, 20, 34, 38. The Other Party should be given access to a copy of the remaining documents.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger AM QC

.........[SGD].......................................................

[2] The applicant does not oppose release of document 36.

[3] FOI Guidelines, Office of the Australian Information Commissioner, Version 1.4, December 2016 ('FOI Guidelines') [6.188].