As ultimately framed, the claim made by the applicant is for access to parts of three classes of documents only. Compendiously described, the papers are the "write-up" in relation to the successful candidate (Mr. M.K. Curtis), the comparative assessment of the four most highly-rated candidates and the rated order of merit of those candidates. Further details of these documents and identification of those sections of them which are presently the subject of contention will be given later.

In making this claim, the applicant acknowledges that, although the decision now challenged was based upon s.41(1) of the Act, it is possible that some part of the documentary material to which access is sought may be exempt by virtue of s.40(1)(c) of the Act. By that provision, subject to s.40(2), a document is an exempt document if its disclosure under the Act would or could reasonably be expected to have a "substantial adverse effect on the management or assessment of personnel" by an agency. By s.40(2), that section does not apply to a document in respect of matter in the document the disclosure of which under the Act "would, on balance, be in the public interest". I will return to the possible application of s.40(1)(c) later.

The documents now in question were identified by Mr. Howard in general terms as follows:-

"B. Interview Reports, Committee's Comments and Referees' Comments prepared or recorded by Committee which interviewed applicants for position no 3988 in September and October 1984

28 November Comparative 1984 assessment of the four most-highly rated applicants.

29 November Names of five 1984 officers appearing after the name of Mr. M.K. Curtis in the list at the top of page 3."

(It should be noted that no question arises here as to the entitlement of the Applicant to access to so much of the documentation generated by the selection processes as concerns himself - that entitlement has been conceded).

The documents for which exemption is claimed were produced to the Tribunal on a confidential basis, an order in that regard having been made pursuant to s.35(2) of the Administrative Appeals Tribunal Act, 1975. Document D16 is an interview report in respect of Mr. Curtis. It contains an interview assessment which deals with, inter alia, the candidate's work history, knowledge of duties, potential and motivation. Comments of members of the selection committee and of two referees on these matters are set out. These comments are confined to an evaluation of the candidate's work capacity and performance. Nonetheless, the observations made are specific in their detail and could conceivably cause a measure of embarrassment to those concerned. Document D28 is the selection committee's comparative assessment of the first four candidates. Again, the observations made in this connection do not travel beyond an assessment of the work capacity and performance of those candidates; again, it is conceivable that the disclosure of some of the observations made could embarrass a person given to sensitivity in this type of situation. Document D29 is the report of the selection committee. The only part of the report to which Access was refused is the statement, in the order of merit, of the names appearing after Mr. Curtis.

In my opinion, no case for exemption under s.41(1) of the Act has been made in respect of any of the material now in contention.

Two questions arise in this connection. First, what is meant by the phrase "personal affairs" where used in s.41(1)? Secondly, can it be said, in the circumstances, that the disclosure is "unreasonable"?

In my opinion, the reference in the Act to the "personal affairs" of a person was intended to have its ordinary dictionary meaning, that is to say, to refer to matters of private concern to an individual. It is not necessary to attempt an exhaustive definition of the phrase. It will suffice, for present purposes, to say that, ordinarily, information as to the work capacity and performance of a person is not private in that sense. It is something observed by others and commonly discussed by those involved in that work. Ordinarily, information as to a person's vocational competence is not something which is treated as confidential. Prima facie at least, it is not part of his or her "personal affairs".

As to the second matter, the question of "reasonabless" is to be determined by balancing the several interests, public and private, involved. This requires a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance (see Re Chandra v. Department of Immigration and Ethnic Affairs (1984) ADMN 92-027 at pp.70,202-3).

I will deal first with document D29. The deleted portion of document D29 contains no reference to any of the personal affairs of the candidates there listed: it does no more than state an order of merit. Although the candidates are identified, no mention is made of anything which bears upon their private affairs. In my opinion, no case for exemption under s.41(1) has been made out in respect of any part of this document.

Although documents D16 and D28 are different in character from document D29, nonetheless, in my opinion, it has not been demonstrated that any unreasonable disclosure of the personal affairs of the candidates in question would occur if the contents of the former documents were disclosed. In the first place, the material which could conceivably be said to relate to their "personal affairs" is extremely limited. Little, if anything, of this character is contained in the material. There is reference to the date of birth of Mr. Curtis but it could hardly be suggested that the disclosure of that fact is "unreasonable". Since, otherwise, the material in documents D16 and D28 consists exclusively of an evaluation of the work capacity and performance of Mr. Curtis and of three other candidates, the element of privacy required to justify the exemption provided by s.41(1) is not present here. It follows, in my view, that access cannot be refused on this ground.

As has been mentioned, it is possible that s.40(1)(c) of the Act could justify the refusal of access in the present circumstances. However, in my opinion, no case has been made out here for the application of that provision. No attempt was made here to demonstrate, by evidence or otherwise, that the "substantial" adverse effect contemplated by s.40(1)(c) would or could reasonably be expected to occur (see Harris v. Australian Broadcasting Corporation [1983] FCA 242; (1983) 50 A.L.R. 551 at p.564; Public Service Board v. Scrivanich, Keely, J., unreported 12 July 1985 at pp.9-11; cf. Re Witherford v. Department of Foreign Affairs (1983) 5 A.L.D. 534 at p.544). The difficulties in now establishing such a case are formidable (Science Research Council v. Masse (1980) A.C. 1029 at pp.1065, 1070-1, 1080-1, 1085 of Sankev v. Whitlam (1978) 142 C.L.R. 1 at pp.40, 62-3, 97). It follows, in my view, that the documents now in question are also not protected by this provision.

Finally, it should be noted that the applicant sought to rely on several documents, collectively marked as document T10, containing, inter alia, expressions of opinion by the Department of the Attorney-General as to the operation of the Act. None of this material is extrinsic material of the kind to which recourse may be had for the purposes of interpretation of the Act (see Acts Interpretation Act, 1901, s.15AB(2)). It is thus, strictly speaking, not relevant for present purposes.

I would therefore find that documents D16, D28 and D29 are not exempt from disclosure. To that extent, I would set aside the decision under review. In substitution, I would make a decision that the applicant be granted access to those documents.

The facts of this review and the relevant provisions of the Freedom of Information Act ("the Act") are set out in the reasons of Beaumont J., which I have had the advantage of reading. I will express shortly my own reasons for agreeing with his finding and proposed decision.

The applicant was not legally represented at the hearing but presented his case quite articulately. He argued that s.41(1) had no bearing on any of the twenty-nine documents in question. The application of any of the provisions of that section would not result in any of the documents being exempt from disclosure. He did not say so explicity, but it would be implicit in his argument that none of the twenty-nine documents contained information relating to the personal affairs of a person, or if it did, then disclosure of that information would not be unreasonable.

However, he then went on to say that he recognised the possibility of an exemption argument in s.40(1)(c). If the respondent should succeed in that argument then he considered that he would be entitled to access only to documents 16, 28 and 29. In the event, I would find that he was entitled to access to those three documents but not for the reasons he advances. I would find that no case has been made out under s.40(1)(c) in respect of any of the documents. He would, in my view, be entitled to access to the three documents for reasons set out by Beaumont J., i.e., that in the circumstances the information they contained could not be said to relate to the personal affairs of any person but even if it could, disclosure of that information would not be unreasonable. He would not be entitled to access to the remaining twenty-six documents in my opinion because, in the same circumstances, they should be viewed as containing information relating to the personal affairs of a person, the disclosure of which would be unreasonable.

I agree that an examination of the three documents shows that none of them relates to the personal affairs of any person. I also agree, for the same reasons set out by Beaumont J., that disclosure of the information in those three documents would not be unreasonable in the circumstances.

The respondent therefore has not made out a case to support denial of access to those three documents under s.41(1). Wisely, it did not try to mount an argument under s.40(1)(c) - an argument that was almost conceded by the applicant. For the reasons set out by Beaumont J., I consider that the respondent would not have been successful even if it had attempted to justify its attitude under this section.

It seems to me, however, that the three documents are in a different category from the remainder of the twenty-six documents. It is relevant to say why I consider the remainder of those documents to relate to personal affairs and their disclosure to be unreasonable. The principal distinction I would draw between the group of three documents and the group of twenty-six is that the latter positively identifies the applicants in detail whereas the former does not. The latter group contains details not only of the names of the applicants but also of their address, age, marital status, sometimes their children and often their present salary. Even if all this information were excised and the documents made available under s.22 in a truncated form, the detailed work history of each applicant would be sufficient to identify him to any interested party. All the documents (being principally applications for employment) contain these histories. Documents D28 and D29 give the bare names only of the candidates. The group of twenty-six documents positively identifies them. In the context of an application for employment, promotion, transfer or the like, I consider the anonymity of unsuccessful candidates their personal affairs.

Documents 1 - 15 are the actual applications prepared and signed by the aspirants for the position. Documents 16 - 27 are commentaries by the committee on those applications. There is no evidence that any of the authors of documents 1 - 15 have given their consent to the entry of these documents, as it were, in to the public domain.

The documents associated with documents 1 and 3 indicate that each of those authors withdrew their application.

Document 16 is in a different category from all the other documents referred to in Mr Howard's affidavit. It is the document relating to the successful applicant, Mr Curtis. He has since been appointed to the position and the fact of his application must now be taken as public knowledge. This cannot be said of the remainder of the applications. For Mr Curtis, the entitlement to anonymity has passed. It is now known that he applied, that he must previously have intended to leave his former position, that he intended to pursue a career in circumstances different from his previous employment. The identity of others who might have had similar intentions is personal to them. The Macquarie Dictionary gives as its primary meaning of personal - "of or pertaining to a particular person".

I would consider it highly likely that the authors of all the twenty-six documents concerned would not wish their contents to be disclosed. If their documents became public and their identity was consequently disclosed, their present employment could be destablized. If there were any applicants outside the public service and it became known to their employer that they were considering moving to another position, this could have adverse effects on their present employment and their prospects for promotion. Even in the case of applicants within the public service, an application of this nature, if widely known, could indicate some dissatisfaction or restlessness which could have an affect on the applicant's career. These considerations are of special force in the case of those two persons who withdrew their applications,

It would therefore be unreasonable to disclose this information. In considering the test of reasonableness one must not think only of disclosure of the documents to this particular applicant. The identity of the applicant is irrelevant. Reasonableness must be considered as if disclosure was to the world at large. Section 11 gives a general right of access to "every person". Section 3 talks of a "right of the Australian community to access". One must ask oneself - is it reasonable to trumpet to X's friends, employers, rivals, associates, family, or enemies that X is applying for a new job? It certainly cannot be said that such disclosure would be in the public interest. How then can it be said to be reasonable when there is no countervailing consideration to the privacy to which one would normally expect to be entitled?

There is no relationship between any of the authors of the twenty-six documents, Mr Curtis, and the present applicant, except that they were at one stage competitors for appointment to a particular position. It is possible that they may be competitors in the future for another position. The revelation of details that each has put forward without the consent of that person would, in my view, impede competition in the future.

The question of the reasonableness of disclosure of personal affairs was considered in both Re Mr Z (1984) ADMN 92-031 and Re Wong (1984) ADMN 92-033. In both cases, the presence or absence of the consent to disclosure by the third party played an important part in deciding whether or not disclosure of information concerning that party was reasonable. In Re Chandra 1984 ADMN 92-027, the applicant's de facto wife and brother, whose affairs would have been disclosed, informed the Tribunal that they did not oppose release of the documents concerned in that case. In Re Mr Z, the applicant's wife was not even asked whether she would consent. This fact weighed strongly with the Tribunal. In the present application there is no evidence that any of the authors of the documents has been asked for his consent to disclosure. Certainly no such consent has been demonstrated.

There is another reason why the absence of this consent should persuade the Tribunal to approach the exemption of the twenty-six documents with caution. Assume the documents contained only information as to the work capacity and performance of a person (which Beaumont J. has indicated is not personal in the statutory sense), whatever might be said of the group of three, the group of twenty-six contains much more as has been discussed above. However, for the sake of the present argument one can make this assumption. If the documents do not relate to personal affairs but contain only work related information and assessments, then they could well be said to relate to "a person in respect of his business or professional affairs". Section 43(1)(c)(i) of the Act exempts documents if their disclosure would disclose information concerning a person in respect of his business or professional affairs, the disclosure of which could reasonably be expected to unreasonably affect that person adversely in respect of his lawful business or professional affairs. No argument was advanced in the present application seeking exemption under this section. If a claim had been made, the agency would have been obliged by s.27 to give to the person concerned a reasonable opportunity of making submissions. If necessary, after an unsuccessful attempt to protect his privacy, a person could apply to be joined as a third party to any appeal to this Tribunal. He would be involved with the application and would be given an opportunity to be heard. There is no such mechanism for giving notice to persons affected when a claim for exemption is made under s.41. In that case, I consider that the Tribunal should be even more reluctant than in other circumstances to compromise the privacy of an individual, who may not even be aware that his documents are to be made available to an outsider

No argument was put under s.45 that the remaining twenty-six documents were exempt because disclosure would constitute a breach of confidence. No evidence was offered to support any such argument and no finding can therefore be made. It may well be the case, however, that applications for employment, as a general rule, are given and received "not on the faith of a legal duty to respect that confidence but on the faith of a voluntary undertaking or understanding to respect it either in a specific case or as part of a tradition of dealing". Re Witheford and Department of Foreign Affairs 5 ALD 534 at 542. It is settled that s.45 is not limited in its application to situations where an action would lie in equity for breach of confidence. Whether the traditions of employment applications, interviews, assessments and reports encompass a general understanding of confidence is a matter to be decided at some future date.

For these reasons, therefore, I would also find that documents D16, D28 and D29 are not exempt from disclosure but that all other documents referred to in the affidavit of Mr Howard are exempt. They would be exempt from disclosure by the cumulative effect of sections 41(1), 43(1)(c) and possibly 45. The decision under review should therefore be affirmed except in so far as it relates to documents D16, D28 and D29.

I agree with the reasons and Decision proposed by Beaumont J.