Freedom of Information Act 1982, ss.16, 32, 33, 33A, 43, 45, 54, 61 Environment Protection (Impact of Proposals Act) 1974, ss.5, 6, 10 Customs (Prohibited Exports) Regulations, reg 3

Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534

Re Mickelberg and Australian Federal Police (1984) 6 ALN N176

Re Keay and Chief of Naval Staff, Department of Defence (1983) 5 ALN N350

Re Anderson and Department of Special Minister of State (1984) 7 ALN N155

Re Maher and Attorney-General's Department (17 July 1985)

Re Bracken and Minister for Education and Youth Affairs [1985] AATA 8; (1984) 7 ALD 243; 2 AAR 406

Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136

Re Actors' Equity and Australian Broadcasting Tribunal 3 AAR 1

On 30 November 1984 Mr Jeffrey Angel, an assistant director of the Total Environment Centre in Sydney, lodged with the Department of Primary Industry a request under the Freedom of Information Act 1982 ("the FOI Act") for access to the following documents:

other material by you, State forestry and

environmental departments, woodchip production/

consumption companies in regard to the Tasmanian

woodchip industry:

(1) Sources for woodchips, including quantity,

quality

(2) Markets for woodchips including quantity,

quality

(3) Environmental assessment of woodchip and

integrated logging schemes

(4) Environmental protection provisions

(5) Index of files

(6) Employment, profitability, subsidy figures."

Pursuant to s.16 of the FOI Act, the request was transferred to the respondent insofar as it related to documents originating with that Department. The Department of Primary Industry made a separate response which is not in issue in these proceedings. On 5 February 1985 the respondent informed the applicant that it had been decided to grant access to 90 or so documents originating within the Department itself. Exemption was, however, claimed in relation to some 43 documents which had come into its possession from Tasmanian State authorities.

2. Shortly after receiving advice of this decision Mr Angel sought an internal review of it pursuant to s.54 of the FOI Act. The internal review confirmed the original finding and on 26 March 1985 the applicant applied to this Tribunal for review of the decision refusing to grant access. By the date of the hearing, following consultation with the Tasmanian Government, the respondent had released a further 13 documents, thus leaving 30 in contention.

3. Shortly before the hearing of this matter, applications were lodged by the third and fourth parties to be made parties to the proceedings. H.C. Sleigh Resources Ltd ("H.C. Sleigh") sought to be made a party so as to contend that disclosure of the documents would affect, or could reasonably be expected to affect, the company unreasonably in respect of its lawful business, commercial or financial affairs. It is not in dispute that H.C. Sleigh, which until some time in 1980 was "Northern Woodchips Pty Ltd" is involved in the Tasmanian woodchip industry, owning a chip mill, a ship loading facility, and a number of rail loading facilities. The State of Tasmania sought to be made a party upon the ground that disclosure would reduce the flow of information between the Tasmanian and Commonwealth Governments and that that would have an adverse effect upon relations between the two governments, and further upon the ground, that disclosure would amount to a breach of confidence and would be harmful to the Tasmanian economy. The applicant having no objection, the third and fourth parties were made parties to the proceedings on 19 July 1985. Despite the number of parties involved, the matter was completed in two days, and counsel for all parties are to be congratulated for the clarity and sense of relevance with which the case was presented to the Tribunal.

4. Sometime in 1984 the applicant became aware that a number of woodchipping companies had applied to the Commonwealth for the renewal of their export licences under regulation 3(2) of the Customs (Prohibited Exports) Regulations. The licences, which are to expire in 1988, are renewable for a maximum period of 15 years from 1988. Under the provisions of the Environment Protection (Impact of Proposals) Act 1974 (Cth), compliance by the companies with certain procedures is required before a renewal application will be approved. That Act provides in s.5(1):

"5(1) The object of this Act is to ensure, to the

greatest extent that is practicable, that matters

affecting the environment to a significant extent

are fully examined and taken into account in and in

relation to -

(a) the formulation of proposals;

(b) the carrying out of works and other projects;

(c) the negotiation, operation and enforcement of

agreements and arrangements (including

agreements and arrangements with, and with

authorities of, the States);

(d) the making of, or the participation in the

making of, decisions and recommendations; and

(e) the incurring of expenditure,

by, or on behalf of, the Australian Government and

authorities of Australia, either alone or in

association with any other government, authority,

body or person."

Section 6 provides for the adoption of administrative procedures for the purpose of achieving the object of the Act. The procedure which has been adopted in relation to the renewal of export licences for woodchips has been to require the preparation of an environmental impact statement (an "EIS"). In common with all EISs prepared under the Environment Protection (Impact of Proposals) Act 1974, the woodchipping EIS was first prepared in a draft form and was then released for public comment. The period for public comment closed in June 1985 and the final EIS was, at the date of the hearing, in the course of preparation. Once the final EIS is completed it will be assessed by the respondent Department which will forward recommendations to the Minister for Primary Industry who is responsible for approving the export licences.

5. The woodchipping proposal would ordinarily have required a similar environmental assessment statement under Tasmanian legislation. However, pursuant to an arrangement made in 1977 between the then Prime Minister and the then Premier of Tasmania for the preparation of co-operative environmental assessments where a proposal would involve the approval of both Governments, the woodchip EIS which is being prepared will satisfy both Commonwealth and Tasmanian legislative requirements.

6. It was not disputed at the hearing that the documents in question are largely based upon information supplied by woodchipping companies to the Forestry Commission of Tasmania which, in turn, supplied it to the Tasmanian Department of the Environment which supplied it to the respondent Department.

7. We now turn to the documents themselves and to the evidence and submissions presented in respect of them. Needless to say, exemption was claimed under more than one section of the FOI Act for most of the documents. It is convenient to deal with ss.33A and 45 together, and with s.43 separately.

Documents affecting relations with States and documents containing material obtained in confidence

8. Sections 33A(1) and (5) of the FOI Act provide:

"33A(1) Subject to sub-section (5), a document is

an exempt document if disclosure of the document

under this Act -

(a) would, or could reasonably be expected to,

cause damage to relations between the

Commonwealth and a State; or

(b) would divulge information or matter

communicated in confidence by or on behalf of

the Government of a State or an authority of a

State, to the Government of the Commonwealth,

to an authority of the Commonwealth or to a

person receiving the communication on behalf

@of the Commonwealth or of an authority of the

Commonwealth.

(2) - (4) ....

(5) This section does not apply to a document in

respect of matter in the document the disclosure of

which under this Act would, on balance, be in the

public interest.

...."

Section 45 provides:

"45(1) A document is an exempt document if its

disclosure under this Act would constitute a breach

of confidence.

(2) Sub-section (1) does not apply to any document

to the disclosure of which paragraph 36(1)(a)

applies or would apply, but for the operation of

sub-section 36(2), (5) or (6), being a document

prepared by a Minister, a member of the staff of a

Minister, or an officer or employee of an agency,

in the course of his duties, or by a prescribed

authority in the performance of its functions, for

purposes relating to the affairs of an agency or a

Department of State."

Exemption under s.33A(1)(a) and (b) and ultimately under s.45 was claimed in respect of all 30 documents.

9. Mr Eric Maynard Anderson, an assistant secretary of the environment assessment branch in the respondent Department, gave evidence that insofar as his Department is required to consider proposals relating to Tasmania, the amount of information received by it from Tasmanian Government departments is of great significance. He said that because of limited resources his Department must rely to a very large extent on State environment agencies to provide information. The respondent Department has no local office in Tasmania, and he said that if the information currently provided by the Tasmanian Government stopped, the duties of his branch would be made extremely difficult. The information provided is of fundamental importance to the preparation of EISs, and were the flow to stop the respondent would probably be required to duplicate the information collecting functions of the State Government. Mr Anderson said that aside from the general free flow of information between State and Commonwealth governments, the States readily provided advice and opinions on Commonwealth proposals and these were always welcomed. He considered that any departure from this free flow of information and advice would have adverse consequences on the environmental assessment programme.

10. Mr Brian Oliver Healey, Acting Director of Environmental Control, and in that capacity Head of the Department of the Environment in the State of Tasmania, gave evidence that there exists a very co-operative relationship between his Department and the respondent Department based upon a commonality of interests. There is a free flow in both directions of information gathered as well as of forward advice of proposed undertakings, but Mr Healey said that in his view the importance of the relationship that has been built up is of greater importance to the Commonwealth because Tasmania "has supplied far more information to the Commonwealth than the Commonwealth has either found it necessary or convenient to supply it to the State".

11. Mr Anderson said that at the time at which the documents in question came into the respondent's possession, the FOI Act was not in operation and that it was his Department's standard practice not to release information obtained from a State Government without its permission. Mr Julian Ormond Green, Secretary of the Department of the Premier and Cabinet in the Government of the State of Tasmania, and Mr Healey both gave evidence that it had always been the intention and understanding of the Government of Tasmania that the information which it had provided to the Commonwealth concerning the environmental assessment of proposals affecting the State was confidential and was to be treated as such. Mr Green said that the Tasmanian Government remains of this view despite the enactment of the FOI Act.

12. Mr Healey said that the information furnished to the Commonwealth which comprises the documents in dispute has no relevance to the EIS on woodchipping. Furthermore, since some of the documents in dispute contain predictions which are now eight or so years old, they are no longer current or accurate. He predicted that if the documents were released his Department would need to re-assess the extent of co-operation with the Commonwealth and would have to ensure that "forever more no more confidential information ever ran the risk of being released". Mr Healey gave evidence that his organization has direct dealings with timber companies and can, under s.10 of the Environment Protection Act 1973 (Tas), obtain information from them relating to certain aspects of their activities. He said, however, that the statutory powers were very rarely used and that most information was obtained simply on request. Since the information which is the subject of these proceedings originated with the woodchipping companies, he said that disclosure by the respondent could be expected to cause the woodchipping companies to re-evaluate their relationship with the Forestry Commission.

13. Mr John Owen James, a Commissioner of the Forestry Commission of Tasmania, gave evidence that information received by the Forestry Commission of Tasmania from woodchip companies was freely provided to the Tasmanian Department of the Environment. This was done on the understanding that the Department could pass on the information to the respondent Department, but that the information remained confidential and was to be treated as such by those Departments. He said that a great deal of the information received by the Commission is on a confidential basis and that the free flow of information is very important to the activities of the Commission. Moreover, at the lower staff levels, the woodchip companies readily communicated with the Forestry Commission both providing and receiving information. He said that unless otherwise agreed, it was always understood that information received by the Commission was to be treated confidentially. He said that it did not appear that any of the woodchipping companies placed any restrictions upon their employees in relation to the transmission of information to the Commission.

14. Mr Desmond Patrick King, the general manager of the Forest Products Division of Petersville Sleigh Limited (of which H.C. Sleigh is a wholly owned subsidiary), gave evidence that the company is constantly providing the Tasmanian Government with information. This information is given on a confidential basis and is not presently guarded or restricted in any way. The information provided extends to operating and financial information about the company vis-a-vis competitors and overseas customers and includes information as to future strategies, anticipated export market movements and selling prices of produce. In relation to the damage to its business affairs, he said that the company specifically objected to the release of five of the documents, release of which, it was considered, would cause damage to the company, but that in relation to the remainder it objected to their release on the grounds of confidentiality.

15. Mr Robert Brian Cumberlidge, an executive director of Petersville Sleigh Limited, gave evidence in similar terms to that of Mr King. He said that the bulk of information provided to Government and Government agencies is provided voluntarily, rather than in pursuance of legislative requirements, and that if confidentiality were not maintained it would no longer be provided. Mr David James Bills, the Forestry, Technical and Export Manager of A.P.P.M. Forest Products, attested that should the documents in dispute be released his company could no longer be confident that documents passed on to the Commonwealth Government in confidence would remain confidential. His company, he said, would "have to be more selective in providing information to the Tasmanian Government".

16. Mr Wilson, counsel for the respondent, submitted that in order for a document to fall within s.33A it is sufficient that the mere act of disclosure itself would give rise to any of the matters specified in paragraphs (a) and (b) of s.33A(1). In other words, it is not necessary to turn to the contents of a particular document in order to invoke the section. He submitted that the section applied to all of the documents and that their disclosure both would cause, and could reasonably be expected to cause, damage to relations between the Commonwealth and Tasmania. The damage, he said, would result because of the stance of the Tasmanian Government and because disclosure would be a breach of the confidential relationship between the Commonwealth and Tasmania. In relation to the Tasmanian Government's stance he submitted that s.33A did not require that the act of disclosure itself directly cause damage. It is enough that there is a step in the chain whereby a certain stance is taken by one of the parties. He submitted that there was evidence that the free flow of information between Commonwealth and Tasmanian Government departments would be restricted were the documents to be disclosed, and that this is itself a reflection of the damage that would be caused. In relation to s.33A(1)(a) Mr Campbell, counsel for the State of Tasmania, submitted that the evidence demonstrated a complete dependence by the Commonwealth upon the Tasmanian State offices for environmental data. The Commonwealth has no office or employees in Tasmania for the collection of this information, although under the terms of the Environment Protection (Impact of Proposals) Act it is required to gather such data for the proper performance of its duties. He said that as a matter of interpretation it is not necessary to make a finding about the extent of damage caused to relations. Any damage that is more than negligible is sufficient to satisfy the paragraph and the public interest element in s.33A(5) must then be considered.

17. In relation to s.33A(1)(b), Mr Wilson submitted that there was clear evidence that the information was communicated in confidence. He said that it was sufficient for the attraction of this paragraph that the party communicating do so in the belief that it is done in confidence. In support of this approach he cited the decisions in Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534, Re Mickelberg and Australian Federal Police (1984) 6 ALN N176 and Re Keay and Chief of Naval Staff, Department of Defence (1983) 5 ALN N350. Although Re Witheford related, for relevant purposes, to s.45 of the FOI Act, it was submitted that the decision was applicable to s.33A insofar as it decided that communications in confidence were not restricted to the concept of confidence as enunciated by Courts of Equity. Re Mickelberg was relied upon for the proposition that where it is possible for persons to guess correctly the information contained in documents, that same information assumes much greater importance and can cause much greater damage if it is spelt out by a body having possession of those documents. Reference was also made to Re Anderson and Department of Special Minister of State (1984) 7 ALN N155 where disclosure of the document in issue would have divulged information communicated in confidence by a State government. The document contained information furnished by the police Special Branch of a State. In upholding the claim for exemption the Tribunal said at N156:

"It is of considerable importance that full and

frank discussions take place between State police

forces and the Commonwealth security organisations

and that in confidence discussions remain

confidential. Otherwise the State police forces

and their offices will become wary about

transmitting information. The Australian Government

and its agencies depend on a free flow of

information from State police forces to discharge

important security duties."

18. Both Mr Wilson and Mr Campbell submitted that where, as with all of the documents here, a document is communicated before the enactment of the FOI Act and there is evidence that it is communicated in confidence, the confidentiality which attaches to that document is an unconditional one. Mr Campbell further submitted that a document is one communicated in confidence where, because of a practice that has grown up in relation to documents of that type, it is expected that it will not be given out to the world. In relation to s.45, Mr Campbell submitted that it applied to all of the documents in issue. He said that, as in an equity of confidence, if information is passed through a chain and everyone in the chain knows that the initial communication was given in confidence then everyone is bound by the equity of confidence. Here, the documents having originally been given in confidence and every recipient having been aware of that confidence, s.45 operated to make the documents exempt.

19. The Tribunal agrees with Mr Wilson's arguments. In our opinion it is sufficient, in order to satisfy s.33A(1)(a), that either the mere fact of a document being disclosed or the disclosure of the contents of a document would cause, or could reasonably be expected to cause, damage to relations between the Commonwealth and a State. A comparative analysis of paragraphs (a) and (b) of s.33A(1) confirms this view. Whereas paragraph (a) concerns itself with the effects, howsoever caused, of the disclosure of a document, paragraph (b) only looks to the nature of the information or matter divulged. It follows that where there is evidence that divulging of information or matter communicated in confidence by or on behalf of a State to the Commonwealth could cause, or could reasonably be expected to cause, damage to relations between the two, disclosure may readily satisfy both paragraphs (a) and (b). Section 32 of the FOI Act clearly indicates that such an overlapping between exemption provisions was within the contemplation of the legislature.

20. It is clear from the evidence presented to us that disclosure by the Commonwealth of any one or more of these documents would cause damage to relations between the Commonwealth and the State of Tasmania and would also divulge information or matter communicated in confidence by the State of Tasmania to the Commonwealth. As earlier Tribunal decisions suggest, in order to fall within the scope of s.33(1)(b), 33A(1)(b) or 45(1) it is not necessary to show that disclosure would amount to a breach of confidence as understood by the rules of common law or equity. In addition to those decisions cited to us by Mr Wilson, reference shold be made to the decisions in Re Maher and Attorney-General's Department (17 July 1985), Re Bracken and Minister for Education and Youth Affairs [1985] AATA 8; (1984) 7 ALD 243 and Re Brennan and Law Society of the ACT (5 July 1985). The following passage from Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534 at 542 is particularly appropriate in relation to documents, such as those at hand, which were communicated to the Commonwealth before the commencement of the FOI Act:

"In respect of documents which came into existence

before the commencement of the FOI Act we consider

that there is a category of confidence that ought

to be respected but which, without seeking to rule

upon the point, may not exist in respect of

documents coming into existence after the

commencement of the Act. This category covers

documents disclosure of which would constitute a

breach of confidence where that confidence was

reposed 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, and where it was so reposed

and received at a time when there was an

expectation that having once been committed to

writing it would not be subjected to disclosure to

the public or to a specific person."

21. While it is true that since the decision in Re Witheford there has been an amendment to the FOI Act restricting the scope of that section by the addition of s.45(2), that amendment was directed at that part of the Witheford decision in which it had been held that s.45 was capable of applying to a confidential communication by one public servant to another in a document to which s.36(1)(a) applied: See Re Bracken [1985] AATA 8; 7 ALD 243 at 263. Bearing all of this in mind, the evidence, especially that of Messrs Green and Anderson, clearly indicates that the information forming the documents in dispute was communicated and received in confidence and that disclosure under the FOI Act would constitute a breach of confidence. Furthermore, in relation to s.33A, there is clear evidence to conclude that the disclosure of such documents would cause, or could reasonably be expected to cause, damage to relations between the Commonwealth and the State of Tasmania.

22. In relation to the public interest question raised by s.33A(5), Mr Wilson submitted that s.33A(5) required this Tribunal to ask itself whether, notwithstanding the conditions of s.33A(1) having been satisfied, there are any parts of any of the documents that should be released. He advanced the proposition that once an agency has brought itself within either paragraph of s.33A(1) the onus lies upon the applicant to show that disclosure would be in the public interest. Section 61, he said, has no part to play in relation to s.33A(5). Moreover there was evidence to suggest that disclosure would be against the public interest insofar as:

(i) It would cause damage to Commonwealth-State relations; (ii) It would cause detriment to the functioning of departments; (iii) It would cause damage to confidentiality; (iv) The material involved is politically sensitive; and (v) It would cause damage to business affairs of corporations.

23. On the question of onus in relation to s.33A(5) and its relationship with s.61, Mr Campbell submitted that the respondent is not required to adduce evidence that disclosure would be contrary to the public interest in order for the document to be exempt. Section 33A(5) is, he said, a distinct provision which provides for an exception in relation to a document which would otherwise be exempt because it falls within s.33A(1). In support of this proposition he cited the following passage from the decision of Dixon CJ in Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136 at 139-40:

"The argument treats the case as governed by the

common law doctrine that where a statute having

defined the grounds of some liability it imposes

proceeds to introduce by some distinct provision a

matter of exception or excuse, it lies upon the

party seeking to avail himself of the exception or

excuse to prove the facts which bring his case

within it. The common law rule distinguishes

between such a statutory provision and one where

the definition of the grounds of liability contains

within itself the statement of the exception or

qualification, and in the latter case the law

places upon the party asserting that the liability

has been incurred the burden of negativing the

existence of facts bringing the case within the

exception or qualification."

24. Quite aside from the question of onus, Mr Campbell contended, disclosure would be contrary to the public interest. There was evidence that disclosure of these documents would lead to the immediate establishment of a screening procedure for all information flowing between Tasmania and the Commonwealth, which itself would reflect damage to relations between the two. As well as re-iterating those points raised by Mr Wilson, Mr Campbell said that some of the information contained in the documents was superseded, and that its misleading nature made disclosure contrary to the public interest.

25. Mr Prineas, representing the applicant, contended that the mere assertion by a Minister that disclosure would damage relations does not necessarily conclude the matter. In support of this contention he referred us to the judgment of Deputy President Hall in Re Bracken and submitted that either no damage would be caused or that such damage as would be caused was outweighed by the public interest in disclosure. Mr Prineas said that there was a very strong public interest in woodchipping generally and that this was evidenced by the 400 or so submissions on the draft EIS and the evidence presented to the Tribunal by the applicant and Dr Robert James Brown.

26. In the decision in Re Mann and Australian Taxation Office (14 June 1985) the Tribunal considered the different operation of the various public interest provisions in the Act. The following extract is of relevance to the arguments presented to the Tribunal in the present case:

"23. Before considering this submission we

consider that some comment is required as to the

operation of s.40(2). Section 40 (and s.39) was

replaced by s.21 of the Freedom of Information

Amendment Act 1983. Sections 33A(5), 39(2) and

40(2) all have the same public interest element.

They should be compared with the two other types of

public interest element appearing in Part IV of the

FOI Act, viz:

(i) Section 36(1), where the requirement that

disclosure of the document be contrary to the

public interest is separate from and in

addition to the other requirements which must

be satisfied in order to make the document

exempt;

(ii) Sections 33 and 44 where a document is an

exempt document if disclosure of the document

under the Act would be contrary to the public

interest for the reason that (or by reason

that) the disclosure would or could have

certain effects.

24. It seems to us that the three types of

provision operate in different ways:

. Sections 33 and 44: Once the agency

satisfies any of the conditions enumerated in

s.33(1) or s.44(1), the document is established

as an exempt document and disclosure is in

effect deemed to be contrary to the public

interest. In other words, further consideration

of the public interest is not required to

determine whether the document is exempt. The

primary criteria are an expression of the

content of the public interest for the purpose

in hand.

. Section 36: The agency must show that, quite

independently of the matters enumerated in

s.36(1)(a), disclosure would be contrary to the

public interest. In other words, the respondent

is not entitled merely to rely on the matters

enumerated in s.36(1)(a) in support of a claim

that disclosure would be contrary to the public

interest - other grounds must be shown.

. Sections 33A(5), 39(2) and 40(2): Here, once

the respondent agency has satisfied the grounds

enumerated in ss.33A(1), 39(1) and 40(1)

respectively, that should ordinarily be enough

by itself to make the document an exempt

document. This is because the grounds

enumerated in ss.33A(1), 39(1) and 49(1) are,

of their very nature, such that satisfaction of

them would make disclosure prima facie contrar

to the public interest. Thus, s.39(1) speaks

in terms of disclosure having "a substantial

adverse effect", s.40(1) speaks in terms of

disclosure "prejudicing" or having "a

substantial adverse effect", and s.33A(1)

speaks in terms of disclosure causing "damage".

The effect of the terms of ss.33A(5), 39(2) and

49(2) is to allow this prima facie conclusion

to be displaced. While not overlooking the onus

imposed upon the respondent agency by s.61, the

terms in which these sub-sections are couched

will require an applicant in some circumstances

to raise matters which, being relevant to the

public interest, weigh in favour of disclosure.

It may not be enough for the applicant simply

to rely upon the general right of access given

by s.11 of the Act and the object of the Act as

laid out in s.3. Satisfaction by the respondent

agency of the requirements set out in

ss.33A(1), 39(1) and 49(1) will tend to

outweigh, in terms of public interest, the

considerations raised by those two sections. If

the applicant does raise such matters, the

agency is required either to show that the

matters raised by the applicant are

insufficient to outweigh the public interest

inherent in ss.33A(1), 39(1) or 49(1), as the

case may be, or to show that there are other

public interest considerations which, when

added to the statutorily inherent aspects of

public interest, outweigh the public interest

considerations raised by the applicant. There

may of course be in particular cases

circumstances such that it can be said that the

public interest considerations in favour of

disclosure are so well known or are so obvious

that the agency should take those consider-

ations into account when making its decision

without its attention having to be specifically

drawn to them."

This Tribunal adopts the observations made in Re Mann insofar as they relate to s.33 A.

27. In relation to the public interest considerations raised by Mr Wilson, all but one are proper matters to be taken into account in a balancing of the public interest. The Tribunal is unable to accept that the mere fact of information being "politically sensitive" is a factor which, in an assessment of the public interest, weighs against disclosure. It may well be that some or all of the attributes which make a document "politically sensitive" can be relevant in the assessment of the public interest, but, if this be the case, it is those attributes to which regard must be had. In relation to the two considerations added by Mr Campbell there can be no doubt that, as a general rule, the establishment of a screening procedure, where before there existed a free flow of information, is a factor weighing against disclosure. As to the fact that some of the information in the documents is superseded, whether disclosure of that information is contrary to the public interest is very much dependent upon the nature of the document and the superseded material in it. In Re Waterford and the Treasurer (16 May 1985) the Tribunal was required to consider whether there did exist reasonable grounds for the claim that the disclosure of the document, a three year forward revenue estimate prepared by the Treasury 11 months before the Tribunal hearing, would be contrary to the public interest. In deciding against the applicant the Tribunal had regard, inter alia, to evidence that the estimates were partly out of date. That decision, however, related to a very singular document. It was highly specialised and was prepared for an audience intimately familiar with the issues raised in it; it was speculative but had the appearance of being authoritative; and it was well-near impossible for an outsider to distinguish between the current and the superseded information contained in it. By contrast, in the present case it has not been shown, and we are unable to see from the documents themselves, that the outdated nature of some of the information contained within the documents is such as to make their disclosure contrary to the public interest. Every document in issue is dated and is either correspondence, having a clearly marked addressor and addressee, or a file note. It cannot properly be said that the superseded nature of the information presented makes the documents misleading as any reasonable reader would bear in mind their age. Unless it was the intention of the documents to mislead, we can see nothing in their character such as to make disclosure of them so misleading as to be contrary to the public interest.

28. In relation to the public interest considerations raised by Mr Prineas it needs to be said that merely because there is a section of the public that is interested in a certain activity it does not follow that disclosure of documents related to that activity is in the public interest. There are two reasons for this. First, there is a distinction between that in which the public, or a part of the public, is interested, and what is "in the public interest". Secondly, it does not necessarily follow that because there is a public interest in an activity there is a public interest in disclosure of every document relating to that activity. This conclusion should not be seen as resting upon an affirmation of the submissions made as to onus of proof in relation to s.33A(5). We simply note that argument for possible future attention, recalling the Tribunal's reluctance to import notions of onus of proof into the process of administrative review, notwithstanding that the Act here in question imparts an "ultimate" onus by the provisions of s.61. Here, it is enough to say that in the final analysis, the grounds of public interest advanced by Mr Prineas which this Tribunal regards as legitimate amounted to little more than the general public interest in making available to the public information about the operations of, or in the possession of, departments. Weighing up all the various factors, the Tribunal is not, in terms of s.33A(5), of the opinion that disclosure of any matter in the documents in issue would be in the public interest.

29. While this effectively concludes the matter, the Tribunal nevertheless feels that the considerable effort devoted by all of the parties' representatives to the claim of exemption under s.43 merits attention.

"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."

Exemption under s.43 was claimed in respect of all but three of the documents.

31. Mr James deposed in his affidavit that the Forestry Commission is of the opinion that disclosure of the documents would have an adverse effect upon the business of the woodchip companies. Similarly, Mr Bills testified that information provided by his company to the Tasmanian Government or its agencies would have an adverse effect upon its business affairs were it to be made public. He said that it would reveal confidential details of customer requirements and would enable chipwood buyers and competing producers to make profiles of production costs which could then be used in commercial negotiations.

32. Mr Wilson, Mr Campbell and Mr Garde, who appeared for H.C. Sleigh, all submitted that the documents fell within the terms of s.43(1)(c) and were therefore exempt. In the Tribunal's opinion disclosure of any of the 27 documents "would disclose information ... concerning the business, commercial or financial affairs of an organization or undertaking". The only real question is whether it is information which falls within sub-paragraph (i) or (ii). In relation to sub-paragraph (i), Mr Wilson submitted that it is sufficient to establish an unreasonable adverse effect on business affairs if a substantial detriment is caused. It does not matter, he said, whether or not there is a greater public interest in disclosure. In other words, a general balancing of the factors for and against disclosure is not necessary. Despite the age of the documents, the evidence indicated that disclosure would have this unreasonable adverse effect thereby making the documents exempt. Mr Garde submitted that once it is shown that disclosure would affect a person adversely, the Tribunal should be very loath to find a countervailing public interest such as would make disclosure reasonable. In any case, the countervailing public interest in disclosure is, he said, minimal. The documents cannot be used for the purpose of making submissions on the EIS because the documents are not relevant to it and the time for submissions has closed.

33. In relation to s.43(1)(c)(ii), Mr Garde contended that the evidence of Mr Bills and of the Tasmanian Government officers clearly indicated that disclosure could reasonably be expected to prejudice the future supply of information. Mr Garde noted that sub-paragraph (ii) does not require the disclosure to prejudice "unreasonably" the future supply of information. Unlike sub-paragraph (i), there is no requirement that the prejudice be an unreasonable one, so that there is no requirement to consider the public interest even in a modified form. He submitted that it does not matter that the documents had come into the respondent's hands from the Tasmanian Government: they have the character to which the opening words of s.43(1)(c) are addressed, and they do not lose that character by virtue of being handed on from one government agency to another.

34. Mr Prineas commended to the Tribunal the approach in Re Actors' Equity Association of Australia and Australian Broadcasting Tribunal 3 AAR 1 and, re-iterating the public interest grounds raised in relation to s.33A, submitted that the factors in favour of disclosure outweighed those against. He adopted a passage from the report of the Senate Committee on Freedom of Information 1979, quoted at paragraph 30 of Re Actors' Equity, which declared that there is no right to total corporate privacy, and that since corporations are creatures of statute, being created and regulated pursuant to legislation, the public has a right to know whether they are being properly regulated.

35. Section 43(1)(c)(i) received close consideration by the Tribunal in the decision in Re Actors' Equity. In relation to the word "reasonably" the Tribunal said at p 6:

"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)."

In relation to "unreasonably" the Tribunal said that this imports the notion of balancing public and private interests, thereby introducing a modified concept of public interest. Although the public interest needs to be taken into account, the Tribunal said, at p.8, that "it does not follow that it will in all cases constitute a total statement of all the factors that are relevant in assessing what is to be viewed as an unreasonable effect".

36. It will be noted that while s.43(1)(c)(ii) incorporates the same expression "could reasonably be expected to" as is used in sub-paragraph (i), there is no corresponding requirement that the prejudice be "unreasonable". This being so, the Tribunal is of the view that the observations made in Actors' Equity (supra) in relation to "reasonably", as it appears in sub-paragraph (i), are equally applicable to sub-paragraph (ii). However, sub-paragraph (ii) does not require the incorporation of even a modified concept of the public interest and to that extent the reasoning in Actors' Equity is inapplicable to sub-paragraph (ii). It may also be noted that under sub-paragraph (ii) the stage at which the flow of information is inhibited is immaterial. Thus, sub-paragraph (ii) is equally well satisfied where the immediate source of information is prepared to continue to supply information as before but, nevertheless, the future supply could reasonably be expected to be prejudiced because of the effects of disclosure upon the supply of information to that immediate source. Similarly, it is not necessary for the operation of the exemption that the source expected to be prejudiced be the same as the source of the information contained in the documents the subject of the request. No doubt, however, a logical connection of some sort between the source expected to be prejudiced and the source of the document in issue would make it easier to establish the reasonableness of the expectation of prejudice.

37. Given the age and contents of the documents before us, it is difficult to see how disclosure of some of them "would, or could reasonably be expected to, unreasonably affect" the parties in respect of their business. However, in light of our findings on s.33A it is unnecessary for us to identify those documents to which s.43(1)(c)(i) applies. Section 43(1)(c)(ii) is not unrelated to the claims of exemptions under ss.33A and 45, for where disclosure of the documents would divulge information communicated in confidence or would constitute a breach of confidence, that on the face of it could reasonably be expected to prejudice the future supply of information to the Commonwealth. In the present case the evidence of Messrs Cumberlidge and Bills (see paragraph 15) substantiate this conclusion and in the Tribunal's opinion exemption under s.43(1)(c)(ii) is made out in respect of those 27 documents for which it was claimed.

38. Having found that all of the documents are exempt, the Tribunal affirms the decision under review.