Freedom of information - information coming into existence after initial request

Freedom of information - relevance of American case law

Freedom of Information Act 1982, ss.3, 11, 18, 36, 38, 41, 43, 44, 45, 46, 92

Broadcasting and Television Act 1942, ss.106, 106A, 106B

Re Murtagh and Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313

Re Chandra and Department of Immigration and Ethnic Affairs (1984) ADMN 92-027

Re Peters and Department of Prime Minister and Cabinet (No.2) (1983) 5 ALN N306 (Note 218)

Re Burns and Australian National University (No.1) (1984) 6 ALD 193

National Parks and Conservation Association v Morton 498 2 Fd 765 (DC Cir 1974)

Chrysler Corp v Brown [1979] USSC 68; 441 US 281 (1979)

Note: The first ten paragraphs of these Reasons for Decision are identical with paragraphs 1-10 of the "Reasons for Interim Decision" herein which were handed down on 7 May 1984. They are republished here as a matter of convenience.

Before this Tribunal is an application for review of a decision of the Australian Broadcasting Tribunal ("the ABT") refusing to the applicant access to certain documents. Application for such access was made by Actors' Equity Association of Australia ("Actors' Equity") pursuant to the provisions of the Freedom of Information Act 1982 ("FOI Act"). Subsequent to the commencement of the proceedings, orders were made joining as parties the Australian Consumers Association ("ACA"), which desired to support the applications made by Actors' Equity, and the Federation of Australian Commercial Television Stations ("FACTS"), which desired to support the refusal of the ABT to grant the access sought.

2. The relevant provisions of the Broadcasting and Television Act 1942 ("B&T Act") and of the FOI Act are as follows:

"106(1) A licensee shall, in respect of each

commercial broadcasting station or commercial

television station of which he is licensee -

(a) compile and maintain, in a recognized business

or commercial form, financial accounts in

respect of the operations of that station;

(b) make those accounts available for inspection

by the Tribunal or an authorized officer as

required;

(c) furnish to the Tribunal, within 6 months after

30 June in each year -

(i) an audited balance-sheet and profit and

loss account, in a form approved by the

Tribunal, for the year ending on that 30

June; and

(ii) a statutory declaration stating the

gross earnings of the station during

that year; and

(d) keep such records relating to the station as

the Tribunal from time to time directs and

supply copies thereof to the Tribunal as

required.

(2)-(5) ...."

"106A(1) The Tribunal shall assemble information

relating to broadcasting and television in

Australia, being information -

(a) supplied to the Tribunal in accordance with

section 106;

(b) supplied to the Tribunal in accordance with

sub-section (2); or

(c) otherwise acquired by the Tribunal in the

performance of its functions.

(2) The Tribunal may, by notice in writing,

require a person who is the holder of a licence

granted under Part IIIB to supply to the Tribunal,

within a specified period (not being less than 21

days after the receipt of the notice) such

information in his possession or control as is

specified, being information relating to a function

of the Tribunal, and that person shall comply with

the requirement.

(3) Subject to sub-sections (4) and (5), or

section 106B, information assembled under this

section -

(a) shall be made available to the Minister upon

request; and

(b) shall be made available (whether gratis or

otherwise, as the Tribunal thinks fit) to any

other person upon request.

(4) In complying with sub-section (3), the

Tribunal shall have regard to any directions given

under section 19 in relation to the information

concerned.

(5) Information assembled under this section

(other than information to which sub-section (4)

applies) shall not be made available under

sub-section (3) in such manner, or in such

circumstances, as, in the opinion of the Tribunal,

would be prejudicial to the interests of any

person."

"106B(1) This section applies to every person who

is or has been a member, acting member, associate

member or acting associate member of the Tribunal

or a member of the staff of the Tribunal.

(2) Subject to this section, a person to whom this

section applies shall not, either directly or

indirectly, except for the purposes of this Act -

(a) make a record of, or divulge or communicate to

any person, any information concerning the

affairs of another person acquired by him by

reason of his office or appointment under this

Act or in the performance of his duties, or

the exercise of his powers or functions, under

or in connexion with this Act; or

(b) produce to any person a document supplied to,

lodged with or otherwise acquired by, the

Tribunal under this Act.

Penalty: $1,000 or imprisonment for 3 months.

(2A) ....

(3) ....

(4) A person to whom this section applies shall

not be required to divulge or communicate to a

court information of a kind referred to in

paragraph (2)(a), or to produce in a court a

document of a kind referred to in paragraph (2)(b),

except where it is necessary to do so for the

purposes of this Act, or for the purposes of

proceedings under or arising out of this Act.

(5) Where, in accordance with this section, a

person to whom this section applies divulges or

communicates to another person information of a

kind referred to in paragraph (2)(a), or produces

to another person a document of a kind referred to

in paragraph (2)(b), that other person, if he is

not a person to whom this section applies, shall be

deemed, in relation to that information or

document, to be such a person.

(6) ...."

Freedom of Information Act 1982

"3(1) The object of this Act is to extend as far

as possible the right of the Australian community

to access to information in the possession of the

Government of the Commonwealth by -

(a) making available to the public information

about the operations of departments and public

authorities and, in particular, ensuring that

rules and practices affecting members of the

public in their dealings with departments and

public authorities are readily available to

persons affected by those rules and practices;

and

(b) creating a general right of access to

information in documentary form in the

possession of Ministers, departments and

public authorities, limited only by exceptions

and exemptions necessary for the protection of

essential public interests and the private and

business affairs of persons in respect of whom

information is collected and held by

departments and public authorities.

(2) It is the intention of the Parliament that

the provisions of this Act shall be interpreted so

as to further the object set out in sub-section (1)

and that any discretions conferred by this Act

shall be exercised as far as possible so as to

facilitate and promote, promptly and at the lowest

reasonable cost, the disclosure of information."

"11. Subject to this Act, every person has a

legally enforceable right to obtain access in

accordance with this Act to -

(a) a document of an agency, other than an exempt

document; or

(b) an official document of a Minister, other than

an exempt document."

"14. Nothing in this Act is intended to prevent or

discourage Ministers and agencies from publishing

or giving access to documents (including exempt

documents), otherwise than as required by this Act,

where they can properly do so or are required by

law to do so."

"18(1) Subject to this Act, where -

(a) a request is made in writing and in accordance

with the requirements of sub-section 15(2) by

a person to an agency or Minister for access

to a document of the agency or an official

document of the Minister; and

(b) any charge that, under the regulations, is

required to be paid before access is granted

has been paid,

the person shall be given access to the document in

accordance with this Act.

(2) An agency or Minister is not required by this

Act to give access to a document at a time when the

document is an exempt document."

"38. A document is an exempt document if there is

in force an enactment applying specifically to

information of a kind contained in the document and

prohibiting persons referred to in the enactment

from disclosing information of that kind, whether

the prohibition is absolute or is subject to

exceptions or qualifications."

"43(1) A document is an exempt document if its

disclosure under this Act would disclose -

(a) trade secrets;

(b) any other information having a commercial

value that would be, or could reasonably be

expected to be, destroyed or diminished if the

information were disclosed; or

(c) information (other than trade secrets or

information to which paragraph (b) applies)

concerning a person in respect of his business

or professional affairs or concerning the

business, commercial or financial affairs of

an organization or undertaking, being

information -

(i) the disclosure of which would, or could

reasonably be expected to, unreasonably

affect that person adversely in respect

of his lawful business or professional

affairs or that organization or

undertaking in respect of its lawful

business, commercial or financial

affairs; or

(ii) the disclosure of which under this Act

could reasonably be expected to prejudice

the future supply of information to the

Commonwealth or an agency for the purpose

of the administration of a law of the

Commonwealth or of a Territory or the

administration of matters administered by

an agency."

"45. A document is an exempt document if its

disclosure under this Act would constitute a breach

of confidence."

"92. Where access has been given to a document and -

(a) the access was required by this Act to be

given or would, but for the operation of

sub-section 12(2) or of that sub-section as

modified by regulations made in pursuance of

sub-section 12(3), have been so required to be

given; or

(b) the access was authorized by a Minister, or by

an officer having authority, in accordance

with section 23 or 54, to make decisions in

respect of requests, in the bona fide belief

that the access was required by this Act to be

given,

neither the person authorizing the access nor any

person concerned in the giving of the access is

guilty of a criminal offence by reason only of the

authorizing or giving of the access."

3. There is no need for Actors' Equity to justify its desire to have access to the documents in question, but it has strongly urged that access is of critical importance to it in responding to the ABT's invitation to interested parties to make submissions as to Australian content requirements for commercial television, and in particular to comment on a draft Discussion Paper prepared by the ABT on that subject. What Actors' Equity says, in brief, is that it cannot make detailed comments on such matters as program production capacity and costs, effects of existing Australian content requirements and proposed options, station profitability, program diversity and so on without access to appropriate data. And according to Actors' Equity the prime data in terms of these areas is that collected by the ABT from holders of commercial television licences, a group represented by FACTS.

4. The documents in question are what are called "ABT-12s". A "form ABT-12" is a form which the ABT requires each holder of a commercial television station licence to complete each year. Holders of a commercial broadcasting station licence complete an ABT-11. In fact, however, Actors' Equity did not seek access to ABT-12s as such. It requested the ABT to provide, in accordance with the provisions of s.106A(3)(b) of the B&T Act, the following information:

"(i) Audited balance-sheets and profit and loss

accounts, submitted to the Tribunal in

accordance with s.106(1)(c)(i) and (ii) of the

Broadcasting and Television Act 1942, in respect

of stations ATN, TCN, TEN Sydney, BTQ, QTQ, TVQ

Brisbane, ATV, GTV, HSV Melbourne, ADS, NWS, SAS

Adelaide, STW, TVW Perth, for the latest

available financial year and for the preceding

four financial years;

(ii) Information obtained by the Tribunal, in the

performance of its functions over the past five

years, on the costs of production/purchase of

Australian programs by and/or on behalf of the

abovementioned commercial television stations,

and the method of apportionment of production/

purchase costs for Australian programs by the

abovementioned commercial television stations;

(iii) Information obtained by the Tribunal, in the

performance of its functions over the past five

years, on the revenue earned by any of the

abovementioned commercial television stations

(or associated companies or agents) from the

re-sale of Australian program telecast rights to

another party."

5. This request was stated to be also made pursuant to the FOI Act. The ABT declined to accede to Actors' Equity's request made pursuant to s.106A B&T Act. In considering the FOI request it gave, to the licensees concerned, an opportunity pursuant to s.27 FOI Act to make submissions as to whether the documents requested by Actors' Equity were exempt documents in terms of s.43 FOI Act. One of the submissions made in response was that the request was ineffectual in that Actors' Equity had not sought access to a document within s.11 FOI Act, and in particular had not sought access to a document known as an ABT-12. The ABT took the view that a form ABT-12, presumably a completed version thereof, comes within s.106(1)(c)(i) and is therefore a document that has been specified in terms of s.11 FOI Act. No quarrel was made with this by any party appearing at the hearing and we are prepared to approach the matter on the footing that, having regard to the parties' knowledge of the relevant legislation and of those requirements of the ABT thereunder in relation to the supply of information thereunder, there was no doubt that Actors' Equity should be regarded as having sought access to completed ABT-12s.

6. It should be noted that release of audited balance sheets and profit and loss accounts as lodged with the Corporate Affairs Commission had not been opposed in submissions to the ABT. They would be open to public scrutiny accordingly. One licensee had opposed the release of audited balance sheets and profit and loss accounts on the basis that the company was an exempt proprietary company and not a public company and was therefore not obliged to file such accounts. Another had not opposed release of audited balance sheets but had opposed release of its profit and loss statement. At all events however, no documents other than ABT-12's were suggested in argument as being documents the subject of the request and it is upon these therefore that our attention is to be focussed.

7. It was submitted by Mr Littlemore, who appeared for Actors' Equity and ACA, that the ABT-12 forms are not supplied to the ABT in accordance with s.106, but rather had to be regarded as falling within information supplied under s.106A(1)(b) or (c), and it is desirable to deal with this point at this stage. A similar submission had in fact been made to the ABT by FACTS in relation to the request made by Actors Equity under s.106A. FACTS had contended in submissions to the ABT that the information contained in ABT-12 was not information supplied pursuant to s.106 and that it had been supplied gratuitously and not pursuant to a statutory function of the ABT. The ABT did not agree that the ABT-12s had been provided voluntarily pursuant to an agreement that it was confidential. It pointed out that the Form includes in its heading "Broadcasting and Television Act 1942 (Section 106)" and it stated that as it saw the position the document was provided by licensees in accordance with the requirements of s.106(1)(c)(i). The Form ABT-12 was said to be in a form approved by the ABT, which is plainly correct, and to contain income and expenditure details related to the station operated by the licensee. In the Tribunal's view it formed part of "the complement of documents filed in accordance with s.106(1)(c)(i)". The standard letter sent to licensees each year with respect to the lodging of accounts in compliance with s.106(1), and their response, was said to confirm that ABT-12 is lodged pursuant to s.106(1). That letter (pp.21-22 of T1) sets out the terms of s.106(1) and asks for the furnishing of, inter alia:

"(i) a profit and loss account in the attached form

(Form ABT 12) which has been approved by the

Tribunal;

(ii) an audited balance sheet, profit and loss

account and profit and loss appropriation

account in a recognised business or commercial

form. The balance sheet should include an item

for stocks of programs on hand indicating

therein overseas and Australian programs

separately;

(iii) a statutory declaration, on the enclosed form

(Form ABT 9), stating gross earnings for the

period within the meaning of the Television

Stations Licence Fees Act 1964; and

(iv) two copies of the annual report of the company,

where available."

8. The question is thus whether a completed ABT 12 falls within the phrase "an audited balance-sheet and profit and loss account, in a form approved by the Tribunal" appearing in s.106(1)(c)(i). It is true that the ABT 12, a pro forma of which was before us as Exhibit 3,* does not constitute a balance sheet. It in fact calls itself a "Financial Statement". But it appears to have the essential character of a profit and loss statement, at all events of a "profit and loss statement in a form approved by the Tribunal". It requires, under the heading "Operating", details of revenue (specifying in particular a number of specific items such as advertising, hire of facilities, sale of programs, and production of advertisements). From total "operating" revenue expenditure is deducted, the figure for such being arrived at on an attached schedule. The result is then carried through into a heading "Non-Operating" where various adjustments and allowances are made to produce a balance of accumulated profit or loss. The Expenditure Schedule, called "Schedule of Expenses" breaks up the cost of program, sales, technical and administrative expenses under a number of headings, specifically related to the business of operating a television station. As previously stated, these constitute a break-up of what appears as operating expenditure on the first page of ABT-12. The fact that the ABT does not appear to have imposed upon licensees a requirement to submit any special form of balance sheet other than one in a conventional business or commercial form does not detract from the fact that it has, in our opinion, sought in ABT-12 the furnishing of a profit and loss account in an approved form.

9. The decision of the ABT was that access should be refused, claiming that the documents were exempt under s.43 of the FOI Act, being the exemption relating to documents disclosure of which would disclose, inter alia, information of stipulated kinds concerning a person in respect of his business or professional affairs. No other claim of exemption was made.

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* The proforma is annexed as a Schedule to these

Reasons for Decision.

By the time the application for review had come on for hearing, however, the situation had changed. In a written submission placed before this Tribunal ("the AAT") FACTS had contended that the documents in question were exempt within ss.38 and 45 FOI Act. At a Directions hearing the ABT indicated that it did not wish to place any reliance upon the ground of exemption contained in s.45. It wished however to consider its position in relation to s.38, and shortly thereafter the ABT indicated that it did now wish to claim that the documents were exempt under that section. It was accepted at the hearing that it was open to the ABT so to proceed and this Tribunal sees no difficulty about its so doing. Were it necessary to decide the matter however, we would as at present advised require to be persuaded that any question under s.45 could arise in the absence of a claim by the ABT as the relevant agency that the documents were exempt under that section.

10. Prior to the hearing, all parties decided to invite the AAT to decide the questions arising under s.38 before proceeding to consider any other claim to exemption. There was an obvious convenience in this. No evidence was required to be called in order to determine this claim, and in the event that the claim to exemption under s.38 should succeed a great deal of time that would otherwise be spent in dealing with the claim under s.43, with the question of the availability of s.45 in the absence of reliance upon it by the ABT, and with the claim under that section should the AAT consider that FACTS could in some way rely upon it, would be saved. We therefore thought it proper to give to the claim under s.38 the prior consideration sought by the parties.

11. For reasons set out in paragraphs 11 to 26 of the Reasons for Interim Decision, the Tribunal decided that s.38 of the FOI Act did not found a claim for exemption of the documents in question. The Tribunal subsequently proceeded to hear evidence tendered by the parties in support of and in opposition to the remaining claims to exemption, and submissions in relation thereto. In this respect FACTS not only sought to rely, as previously stated, on the provisions of s.45 of the FOI Act, but also on the provisions of s.43(1)(a) and (b) and s.43(1)(c)(ii), the decision of the ABT having been originally limited to a claim for exemption based on s.43(1)(c)(i). We propose to consider the latter claim first. Such consideration is unaffected by the question, already referred to, whether the Tribunal should entertain claims to exemption not relied upon by the ABT or, in relation to s.45, specifically rejected by it.

12. The position adopted by the ABT in relation to s.43(1)(c)(i) was that the evidence placed before the AAT by FACTS showed that disclosure, which would of course be disclosure not simply to the applicant but effectively to all the world, of financial information of the kind contained in the completed ABT-12s would have some adverse effect on a licensee's business, commercial or financial affairs. The question was said to be whether disclosure could reasonably be expected to affect unreasonably the licensee adversely. Two competing principles were said to require objective weighing, namely that members of the public should have access to information in the possession of Commonwealth agencies, and that persons supplying information to agencies of the Commonwealth should not be at risk of damage as a result. It was said that where the damage to the supplier of the information that could reasonably be expected to flow from disclosure would be greater than any likely benefit to the public as a whole, disclosure would be unreasonable, in the sense that it would not be based on reason, good sense or sound judgment. What then became crucial on this analysis was the reasonableness of any expectation that an unreasonable effect, as analysed above, would flow. It was contended that from the evidence before the AAT, it was reasonable to form the expectation that each licensee concerned would suffer some adverse effect in the short or long term. On this basis the AAT was, it was said, entitled to find that disclosure of the ABT-12s would unreasonably affect licensees adversely.

13. For the applicant, it was stated that the request applied to ABT-12 forms in respect of the year ended 30 June 1982 and for the preceding four financial years. The letter of 4 March 1983, which constituted the application for access, sought information "for the latest available financial year and for the preceding four (4) financial years". There is thus some doubt as to the ambit of the claim. As the argument developed Actors' Equity sought to develop the thesis that the claim did not extend beyond the documents in existence when the application for access was made, so that the most recent of the documents would be at least two and a half years old by the time they were disclosed should the application be successful. Counsel for FACTS referred to the decision of the Tribunal in Re Murtagh and Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313 at 316 where it was said that "the Tribunal may give consideration to all documents which fall within the ambit of the dispute before it notwithstanding that some may have come into existence between the time of the decision under review and the time of the Tribunal's decision".

14. In the present situation it does not seem to us that what was said in Re Murtagh can be applied so as to compel an applicant to widen, against its own will, the ambit of the claim which it makes. Actors' Equity having sought information "for the latest available financial year and for the preceding four (4) financial years", that request should be construed as referring to the latest then available, that is to say at the date of the request. Not so to construe the request would be to accept that the applicant intended that as new documents were created the documents relating to the first of what was at the date of the request represented by the "four preceding financial years" should be removed from the ambit of the request. The applicant having expressly disavowed this intention, the request should be construed as being a request for access to ABT-12s for the year ended 30 June 1982 and for the four preceding financial years.

15. As FACTS in its written submission accepted, the question is, in the light of the provisions of s.61 of the FOI Act, whether it has been established on the balance of probabilities that the decision of the ABT given in respect of the request for access was justified or that the Tribunal should give a decision adverse to the applicant.

16. There is no doubt that disclosure of the ABT-12s would disclose information concerning the licensees which lodged them with the ABT in respect of their lawful business, commercial or financial affairs. The question is whether disclosure would or could reasonably be expected to affect unreasonably the licensees adversely in respect of their "lawful business, commercial or financial affairs" (s.43(1)(c)(i)). Logically, the questions flow as follows:

(i) Would disclosure affect the licensees adversely in respect of such affairs?

(ii) Alternatively, could disclosure reasonably be expected to affect the licensees adversely in respect of such affairs?

(iii) If yes to (i) or (ii) above, would such effect be unreasonable?

We acknowledge that the wording of s.43(1)(c)(i) requires us to consider that there may be an adverse effect that is not unreasonable. Certainly, an adverse effect that is of minor magnitude, or an effect that while not minor may be an effect arising from revelation of unlawful or improper conduct, could be so regarded although the reference to "lawful" business etc affairs might be thought to be an adequate provision in this latter regard.

17. The principal thrust of the argument put by FACTS was that the unreasonable adverse effect contemplated in s.43(1)(c)(i) was established by evidence of actual or potential impact upon the licensees which had provided the information, what may be called "impact factors". These impact factors seem to us to require division into two groups. No doubt there would be likely to be an interrelationship between the two groups, but the considerations applicable to each are different enough to make the division desirable. The first group was comprised of those relating to:

(a) Competition for advertising revenue, such competition being

offered by other television stations, newspapers, magazines

and radio;

(b) Competition with persons doing business, other than

advertising business, with the relevant television stations,

such as owners of rights to telecast completed productions

and films;

(c) Competition with other licensees seeking to buy or sell such telecasting rights; and

(d) Competition with persons seeking to hire production facilities owned by the relevant licensees.

(e) Affecting the value of shares in companies owning television licences;

(f) Affecting the vulnerability of those companies to takeovers;

(g) Affecting the ability of the companies to raise further share or loan capital; and

(h) Affecting, ultimately, the value to those companies of their

18. In the discussion that follows we deal with the first group of impact factors mentioned above. The matters dealt with therein do not affect, or may not necessarily affect, the corporate worth of the licensee, the management of its capital, or the resistance that may be made to assaults on the ownership of its shares by takeover, but rather the conduct of its day-to-day business, albeit over a period of years. It is of course perfectly true that an adverse effect arising from the factors referred to in the first group would ultimately be reflected in overall profitability of a licensee being lower than otherwise so that there would be an eventual connection between factors of the first group and factors of the second. The fact that s.43(1)(c)(i), in respect of an "organization or undertaking" as opposed to a "person", refers to its "business, commercial or financial affairs" as well as to its "business or professional affairs" is an indication that the matters dealt with in the second group may be taken into consideration. But as will appear, we find it unnecessary to consider the second group.

19. The evidence before the Tribunal was that of the following: Mr D.G. Morton, company secretary to United Telecasters Sydney Limited, the licensee of Channel 10, Sydney; Mr G.B. Carrington, Finance Director of Herald-Sun TV Pty Limited, the licensee of HSV Channel 7, Melbourne; Mr D.E. Mattschoss, company secretary of Television Broadcasters Limited, the licensee of ADS Channel 7, Adelaide; Mr D. Morgan, who is Deputy Federal Director and General Manager of FACTS; Mr G.J. Pickles, who is Chairman of Directors of Vestcorp Limited (formerly Filmco Limited); and Dr A.G. Brown, who is an economic consultant who has specialised in the economics of commercial mass media and has from time to time been a temporary employee of the ABT as a consultant. Dr Brown was called to give evidence by Actors' Equity. The other witnesses were called by FACTS. Pursuant to directions given by the Tribunal written statements of the evidence of the witnesses, other than of Dr Brown, had been exchanged and lodged with the Tribunal, and after further examination-in-chief the witnesses were cross-examined. Some statements by other prospective witnesses had been lodged both by FACTS and by Actors' Equity, but with the agreement of the parties we have relied only on statements of those who attended to give oral evidence and to be cross-examined.

20. The evidence was extensive, and we do not propose to rehearse it in detail. For the findings and conclusions which we set out below, we refer to and rely especially upon evidence, given in relation to s.43(1)(c)(i), and relating to the first group of impact factors referred to above. Specific references to the evidence are given in Exhibits 7 and 8, being two submissions placed before the Tribunal in writing in support of the final submissions of counsel for FACTS. Transcript references to the relevant evidence of Messrs Morton, Carrington and Mattschoss are set out on p.5 of Exhibit 7, and on pp.1-7 of Exhibit 8. We refer to and emphasise critical aspects of the evidence of these witnesses.

21. Our first finding from the evidence is that the cumulative effect of the information that could be gained from the ABT-12s, if disclosed and placed alongside other information, would be considerable. That cumulative effect would be available mainly to other licensees and to other organisations who are either directly competing with the licensees or are already otherwise involved in the field of business in question and have interests in it. This is because of the other information, and of the techniques of analysis, available to them. Examples of how this cumulative effect can occur are to be found in the evidence of Mr Morton at transcript pages 157, 167, 169 and of Mr Carrington at transcript pages 234-234a. The effect is the same as with all intelligence gathering, namely that a person already much "in the know" can gain a great deal from apparently small items of information, or even from generalised information, if it is put together in an orderly fashion with what is already known.

22. We also consider, from the evidence led, that there would be considerable value in making "year-to-year" comparisons. Mr Morton said, at transcript page 149, as to information 12 months old, that salesmen are given "an inkling as to how the other stations have been selling and how they have been formulating their marketing strategies from year to year and it is marketing strategies that are of paramount importance in these major annual negotiations". At pages 181-2 Mr Morton denied that five year old information as to writing-off of program stocks would be purely historical in value. He said that it would be of value, because it could then be assumed that a particular licensee was not changing his accounting practices in relation to principles of amortization from year to year: "If he adopted a term write-off for feature films in year one, you could be pretty safe to assume that in year three he would still be adopting the same basis ...". Another good example is at page 236 of the transcript where Mr Carrington said: "All information is historical. I mean, every company profit report is six months old normally before you get it. It is still a considerable advantage when you get it. You like to know whether a particular company has made a profit or a loss. Now, admittedly the fresher the information the more value it is, but if it happens to be three years old, and that is the best you can get, you would rather have it than not have it."

23. Another area to be emphasised from the evidence is the use that could be made of the ABT-12 information, if it were to be disclosed, for the development of market strategies. At transcript page 226 Mr Carrington spoke of the value to a competitor of the actual amount of the advertising dollar that another licensee is achieving: "Once (given) ... the precise figure he is able to do a lot of analysis particularly if he gives this figure over a period of time. It enables (the competitor) to arrive at some very satisfactory conclusions about the overall strategy of the individual station, and how it goes about selling itself. He is able to arrive at some very useful conclusions that he can put to his own advantage .... We certainly would like to know, and we spend a lot of time trying to find out, trying to estimate, that if we could have the actuals of our competitors, I am sure we would be able to use those actuals to arrive at some interesting conclusions."

24. Finally, we would refer in particular to evidence of Mr Mattschoss on page 2 of his written statement, as amplified at transcript pages 279 and following. This evidence gives a good example of the way in which information from ABT-12s can be used in support of existing information already available to a competitor. He explained that he had built up from sources currently available a reconstruction of a profit and loss account for two television competitors in South Australia. Any additional information obtained, he said, such as that in an ABT-12, would enable him to determine accurately specific cost structures of competitors by department. Such insight would provide valuable information as to their efficiency or otherwise and, coupled with revenue breakdown, the item in the ABT-12 headed "other" revenue in particular, would be indicative of the success (in monetary terms) of their facilities.

25. Mr Littlemore, for Actors' Equity, submitted strongly that the evidence of the witnesses called by FACTS was opinion unsupported by facts. He maintained that there were before us no more than assertions by witnesses of likely financial harm and of exploitation by those with whom they have contractual relations, but with no evidence to support such assertions. The Tribunal was urged to satisfy itself from the material before it, not from what he referred to as opinion. The fact is however that in relation to s.43(1)(c)(i), whatever may have been the situation in relation to s.43(1)(a) or (b), we are in the field of predictive opinion. The question is whether there is a reasonable expectation of adverse effect. It is to that question that the witnesses' evidence had to be directed, and their assertions are incapable of proof in the ordinary way. What there must be is a foundation for a finding that there is an expectation of adverse effect that is not fanciful, imaginary or contrived, but rather is reasonable, that is to say based on reason, namely "agreeable to reason; not irrational, absurd or ridiculous" (Shorter Oxford Dictionary). This is not very much to ask of evidence of an expectation of an adverse effect on a business. There is no doubt that because of the provisions of s.61 of the FOI Act the onus lies on those who claim the exemption to establish that the decision given in respect of Actors' Equity's request was justified or that the Tribunal should give a decision adverse to Actors' Equity. But in truth the evidence given here was, for all its inevitable reliance on what we have called predictive opinion, really all one way. The only evidence called to counter that presented by FACTS was that given by Dr Brown. It of course consisted no less of predictive opinion than did that of the witnesses called by FACTS. Certainly, his evidence tended to indicate that there might be disparity or inconsistency as between licensees in the responses to the requests for information represented by the ABT-12, but this is not in our view much to the point. In relation to the area that is relevant, Dr Brown did not in fact feel qualified to answer whether the ABT-12 revealed information in such detail that its disclosure would have any effect on the daily operations of an individual licensee. He agreed that one "would be able to do a better job" if one had the completed ABT-12s as well as documents lodged with the Corporate Affairs Commission rather than the latter only, and agreed that there was something to be derived from studying ABT-12s from individual licensees as to trends from year to year, but he was "not sure exactly what use would be made of that information". In this case then we consider that on balance the required proof was provided. Before setting out our specific findings, however, it is necessary to refer to some of the problems that emerge in the construction of s.43(1)(c)(i), so that our reasoning from the evidence may be placed properly in focus.

26. There is first a question whether the FOI Act requires the weighing of competing principles of public and private interest. Mr Grey, who appeared for the ABT, said in his final submission that two principles should be weighed, the first that members of the public should have access to information in the possession of agencies of the Commonwealth, and the second that those who supply information to such agencies should not suffer, presumably suffer unreasonably, as a result of the supply of such information. In striking such a balance the benefit to the public that is placed on one side of the scales would, he said, be the benefit that would result to the public as a whole, and not to a particular person or group.

27. Mr Simos QC, who appeared for FACTS at the continued hearing, contended with some force that the concept of public interest was not imported into s.43. He pointed out that that concept is specifically implanted in s.44 and that if it had been intended that some particular weight should be given to the notion of public interest in the context of s.43 it would have been easy to so provide. He submitted that no notion of public interest could be invoked to require disclosure of trade secrets under s.43(1)(a) or of the information referred to in s.43(1)(b). Section 43(1)(c)(i), on this footing, was inserted for the specific purpose of establishing the ambit of the exemption necessary for the protection of persons in respect of their business or professional affairs and of organizations or undertakings in respect of their business, commercial or financial affairs and did not require the public interest in disclosure to be addressed.

28. The difficulty that we have with Mr Simos' argument on this point is that we have to give some life to the word "unreasonably". The concept of there being a "reasonable" adverse effect seems an odd one. It is certainly less so if the use of the word "unreasonable" imports the notion of balancing public and private interest in or to the effect of the formulation suggested by Mr Grey. Such an interpretation in effect introduces a modified concept of public interest. It had the support of Deputy President A.N. Hall in Re Chandra and Department of Immigration and Ethnic Affairs (1984) ADMN 92-027 where in paragraph 52 of the Reasons for Decision he said, speaking of s.41 of the FOI Act:

"52. However, consistently with the stated

object of the Act (see s.3), it is also necessary

in my view to take into consideration the public

interest recognised by the Act in the disclosure of

information in documentary form in the possession

of an agency and to weigh that interest in the

balance against the public interest in protecting

the personal privacy of a third party whose

personal affairs may be unreasonably disclosed by

granting access to the document."

29. That there are nevertheless difficulties in moving from one statutory expression to another in the interpretative process is once again illustrated by the fact that s.41 refers to "unreasonable disclosure", not to a disclosure which could "reasonably be expected" to "unreasonably affect (a) person adversely". Section 41 therefore, it seems to us, more readily admits the interpretation of the concept of unreasonableness adopted in Re Chandra. Nevertheless we consider that that concept may be applied so that the public interest should be taken into consideration in relation to s.43(1)(c)(i) although it does not follow that it will in all cases constitute a total statement of the factors that are relevant in assessing what is to be viewed as an unreasonable effect. Nor, where we are dealing with the question of the exempt character of private information held by government, would it in our opinion be easy to see how there would be much room for the application of the principle enunciated in Re Peters and Department of Prime Minister and Cabinet (No.2) (1983) 5 ALN N306 (Note 218) and applied in Re Burns and Australian National University (No.1) (1984) 6 ALD 193 that, there being a public interest in an individual's "need to know", that must in an appropriate case be weighed against the general public interest in disclosure. Even if that view be incorrect, we would not see the present case as one in which such an individual need to know was established. But the truth is that if the public interest is to be taken into consideration under s.43(1)(c)(i) it is by a different pathway from that under s.36 and in consequence care must be exercised not to be distracted from the clear purpose of s.43(1)(c)(i) to protect business from unwarranted disclosure to the public of sensitive commercial information.

30. At page 194 of Bayne, "Freedom of Information", Law Book Co Limited, 1984, reference is made to the report of the Senate Committee on Freedom of Information (1979) where in paragraph 25.5 on page 268 it was stated:

"The Committee takes the view that there is no

right to total corporate privacy. Business

corporations are created under Federal and State

laws and are properly subject to regulation by

governments for the common good. A corollary of

this is the public's right to know how well that

regulation is being carried out on its behalf. In

the words of Theodore Roosevelt, corporations

'exist only because they are created and safe-

guarded by our institutions; and it is therefore

our right and our duty to see that they work in

harmony with those institutions'. It would be

totally unacceptable to allow a situation in which

a corporation could prevent the public disclosure,

for an indefinite period, of information provided

by it to a government agency (in many cases with a

view to receiving some benefit) simply by marking

the documents in question as confidential. Yet

this is a view which was put to us by a number of

corporate witnesses."

"The general justifications for the F.O.I. Act

underline this approach. The considerable

interaction between government and business, much

of which protects business against unregulated

competition, justifies close scrutiny of

government's dealings with business. The Act, of

course, is designed to facilitate such scrutiny.

The argument for scrutiny applies whether or not

the government body is doing business with a

business enterprise, or whether it is regulating or

supervising an enterprise. Regulatory agencies may

be 'captured' by the businesses they regulate, a

result partly due to intensive lobbying by these

businesses of such agencies. Consumer or public

interest groups are disadvantaged by the law and by

their lack of finance to match the lobbying of the

regulated businesses, and the Act could be a means

to redress the balance. There is also an argument

that freedom of information disclosure is desirable

in order to ensure that regulation is equal between

the regulated businesses."

31. The force of what is said in the passage cited must be acknowledged. But there are at least two kinds of what we may call government/business documents. The first are those that are truly "government" documents, that is to say documents that have been created by the administration or that form part of a flow of correspondence and other documents between the administration and business. The second are those that, as in this case, consist simply of business information supplied to government by direction with the authority of statute. The argument in favour of public scrutiny applies with much greater force to the first kind, in which "government's dealings with business" are involved. As to the second class, the considerations are somewhat different. Mr Littlemore's submissions encapsulated much of what is said in the latter part of the citation from Bayne and we have taken these considerations into account. But when all is said and done we are required to apply the provisions of the Act in relation to claims for exemption where their requirements are fulfilled.

32. We would add a brief comment on the American case-law in relation to the topic under review. The most relevant authorities are National Parks and Conservation Association v Morton 498 2 Fd 765 (DC Cir 1974) and Chrysler Corp v Brown [1979] USSC 68; 441 US 281 (1979). But the United States legislation is so differently based, and so differently worded, from the Australian provisions, that we can derive no real guidance from it. The provisions of the FOI Act have in this area adopted, plainly deliberately, a quite different form and the dangers in seeking to apply principles discussed in the American authorities are manifest.

33. We now state our findings and the reasons which lead us to our decision. The information gained by disclosure of the ABT-12s would in our opinion be likely to advantage a licensee in selling advertising time and in other activities to the detriment of its competitors. Those competitors would include not only other licensees but also other components of the media industry seeking the funds available for advertising, such as magazines and radio. Other broadcasters competing for advertising revenue would be enabled to obtain a better picture of the selling strategies adopted by the licensee.

34. We also accept that dangers to a licensee would exist where the licensees are in the market as buyers of rights to telecast local and overseas productions. The evidence in our view does establish that if a competitor knows how many rights have been purchased and at what cost, then that competitor will also know what will have to be paid to secure those rights in competition. The same would apply to resale rights, and as to this whole topic the knowledge gained from the ABT-12s would be a useful addition to total available knowledge. In our opinion it is a reasonable judgment that disclosure of the ABT-12s would weaken the bargaining position of licensees in selling or purchasing programs and in dealing with advertising agencies.

35. We again accept that the same kinds of consideration apply to the situation that obtains in respect of that part of a licensee's business that concerns the hire of production facilities. Knowledge of the revenues of competitors once combined with existing knowledge of their facilities would be highly likely to lead to knowledge of the price for which such facilities are being sold. Knowledge of the size of the market and the working out of the share of the market held by the opposition and oneself would aid the process of marketing and pricing of production facilities.

36. Overall, we consider that what is fundamental in the present context would be the likely ability of a competitor, once given the ABT-12 information in conjunction with all other available information, to tip the scales of knowledge in relation to an opponent's costs and his share of the market. All this emphasises and establishes at least that it may reasonably be expected that licensees would be affected adversely in respect of their lawful business, commercial or financial affairs by disclosure of the ABT-12s.

37. The remaining question is whether the adverse effect that we have found could reasonably be expected to flow from disclosure of the ABT-12s should be regarded as unreasonable. On the face of it, in the present context, it would seem almost axiomatic that such effect would be unreasonable. But the argument was put for Actors' Equity that disclosure would or could be for the common advantage of the licensees which supply the ABT-12s. While in a sense this argument smacks of a notion of telling persons how they should run their own businesses, nevertheless since it is implicit in the argument that if only the licensees knew what was best for themselves they would supply each other with the information anyway, it does raise a real point in the context of the FOI Act.

38. The answer to this argument is that the effect of acceptance of it would be that it would be appropriate for all in the business to be reduced to the lowest common denominator. The essence of the character of the industry is competition, and it is in our view not the intended function of the FOI Act to change the character of a field of commerce by intrusion into it of principles of disclosure that the Act has laid down in relation to the supply to the community of information held by government. It is after all a fact that the relevant agency of government, the ABT, has obtained commercial information for its statutory purposes. To convert that commercial information into "governmental" information and then to subject it to concepts that are in truth not appropriate to "private" information in the commercial field would not in our view be proper, and the FOI Act makes specific provision to avoid that consequence.

39. Overall then we consider that the requirements of s.43(1)(c)(i) are fulfilled in this case, and by a fairly substantial margin. The danger for the licensees in disclosure of the ABT-12s is, as we have already indicated, very much one of cumulative effect. One item, from one ABT-12, from one licensee, for one year, may not lead to any reasonable expectation of unreasonable adverse effect. But in a commercial field where competition is exceptionally fierce, the gradual accumulation of small pieces of evidence about competitors could, on the evidence, ultimately have a very significant adverse effect. It is a matter of building up a total picture of the strengths and weaknesses of a competitor's business. Perhaps without other inputs from other sources the information in the ABT-12s may not be very significant, but given that other sources exist it is in our view highly likely to become so, and it is a reasonable expectation that an adverse effect will occur. Should it so occur the likely adverse effect will in our opinion be unreasonable in all the circumstances.

40. There can of course be little doubt that at some stage in the future release of information contained in the particular ABT-12s sought could not reasonably be expected to have an adverse effect, or that if there should be an adverse effect such would not be unreasonable. At what point in time claims of the expectation of such an effect would have to be held not to be reasonable, or that such effect would not be unreasonable, we are unable to say. We do however point out that the provisions of the FOI Act do not stand alone in the present context. Section 106A(3) of the Broadcasting and Television Act 1942, as previously pointed out, effectively creates a presumption that information assembled under that section, being information supplied to the ABT under s.106, or under s.106A(2), or otherwise accepted by the ABT in the performance of its functions, shall be made available upon request, save that by s.106A(5) information so assembled shall not be made available in such manner, or in such circumstances, as, in the opinion of the Tribunal, would be prejudicial to the interests of any person.

41. For the reasons stated, we consider that the claim to exemption is clearly made out under s.43(1)(c)(i), the provision upon which the ABT originally relied, and that the decision under review should accordingly be affirmed. As previously indicated, we have made no findings in relation to the matters, described by us as the second group of impact factors, made the subject of submissions by Mr Simos under s.43(1)(c)(i). Nor is it necessary therefore to canvass the other grounds of exemption put forward. In particular, it is unnecessary for us to decide whether it would be open to consider the ground of exemption based on s.45, a ground supported by FACTS but expressly disavowed by the ABT. We note however Mr Simos' submission that the provisions of s.58 would have permitted us to consider that ground of exemption, a submission which may satisfy the doubts expressed in the concluding sentence of paragraph 9 above.