Administrative Appeals Tribunal Act 1975 - Section 37

Sex Discrimination Act 1984 - Section 106

Harris v. Australian Broadcasting Corporation [1983] FCA 242; (1983) 50 ALR 551

Kavvadias v. Commonwealth Ombudsman [1984] FCA 179; (1984) 54 ALR 285

Re Waterford and Department of the Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588

Re Scrivanich and Public Service Board (1984) 6 ALD 98

Rollo v. Minister of Town and Country Planning (1948) 1 All ER 13 CA

Attorney-General v. J.N. Perry Constructions Pty. Ltd. (1961) 6 LGRA 391

Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534 Minister for Health v. Sharvid Pty Ltd (1986) 10 ALD 124

Palser v. Grinling (1984) 1 All ER 1

In Tillmanns Butcheries Pty Ltd v. Australasian Meat Employees Union and Ors (1979) 27 ALR 367

Marco Ascic v. Australian Federal Police (1986) 11 ALN N184 Re Williams and Registrar of the Federal Court of Australia [1985] AATA 226; (1985) 8 ALD 219

Arnold (on behalf of Australians for Animals) v. Queensland and Anor (1987) ALR 73

By an application dated 6 January, 1989, the applicant, Mr Robert William Booker, sought review of a decision dated 14 December, 1988 by a delegate of the Secretary of the Department of Social Security ("the Department"). That decision was made under the Freedom of Information Act 1982 ("the FOI Act") and, in order to understand it, it needs to be considered in the context of the request which Mr Booker originally made to the Department and the delegate's original decision.

2. On 26 May, 1988, the Department received a request from Mr Booker, who is an officer of the Department,seeking access to the following material:

Any files, reports, file notes and any other written material

what-so-ever which names me or relates to me excluding

Management Team minutes and Occupational Health and

Safety Committee minutes. Additionally any material held

which is not supplied is to be listed and that list supplied.

(2) From Area North Management

Any files, reports, file notes and any other written material

what-so-ever which names me or relates to me. Any papers

or documents held by Anne Layton and Val O'Toole.

Additionally any material held which is not supplied is to be

listed and that list supplied.

(3) From Personnel Section

Any reports, files, file notes and any other written material

what-so-ever which names me or relates to them.

Additionally any material held which is not supplied is to be

listed and that list supplied.

3. On 7 September, 1988, the Department advised Mr Booker that his request covered 172 folios and that a decision had been made to grant him access in full to 143 of those. Of the remaining 29 folios, parts or all of 28 were exempt pursuant to section 45 of the FOI Act and one pursuant to section 41(1). Finally, a report of Mr M Imeson could not be located and he was advised that his request to that report was refused pursuant to section 11. When Mr Booker sought review of the decision by the Department, a delegate granted access to further folios but again denied access to the remainder by a decision dated 14 December, 1988. That is the decision under review. In summary, that decision is that:

(1) of the documents which related to investigations

carried out by the Discrimination Investigation Officer:

(a) he had been granted access in full to folios 13, 14, 16, 20

and 24;

(b) he had been granted access with some parts

deleted to folios 8, 9, 12, 15, 17, 18, 19, 21, and 22; and

(c) he had been refused access in full to folios 1, 2,

3, 4, 5, 6, 7, 10 and 11; and

(2) of the documents which related to investigations

carried out by the Assistant Area Manager, North:

(a) he had been granted access with some parts deleted to

folios 6, 7 and 11; and

(b) he had been refused access in full to folios 15, 16

and 17 (T27).

4. On the day before the hearing of this matter in Lismore, Mr Booker was granted access to one further folio so reducing the number of folios which were claimed to be either wholly or partially exempt to 23. Those 23 folios are referred to in a Schedule to an affidavit of David Brown sworn on 9 August, 1989. That Schedule is as follows:

DOCUMENT DATE AUTHOR DESCRIPTION GROUND FOR EXEMPTIONS

(Documents which relate to investigations carried out by the discrimination investigation officer into a complaint against the applicant of sexual harassment)

Folio 1 27/4/88 A Leighton Whole. List s.45 or 36

of those s.40(1)(d)

interviewed

with a few

brief notes

Folio 2-6 27/4/88 A Leighton Whole. Notes s.45 or 36

of interview s.40(1)(d)

with persons

in Grafton

Office

Folios 8- unknown A Leighton Parts. Draft s.45 or 36

Area manager sexual

(North), harassment

Manager allegations

Grafton and relating to

Deputy interviews

Director with other

staff members

Folios 10 unknown A Leighton Whole folios s.45 or 36

Area Manager report

(North), relating to

Manager interviews

Grafton and with other

Deputy staff members

Director

Folios 17 unknown A Leighton Parts of draft s.45 or 36

Manager (North) sexual

Manager harassment

Grafton and allegations

Deputy relating to

Director interviews

with other

staff members

Folio 20 8/5/88 A Leighton Whole office s.45 or 36

to minute s.40(1)(d)

Deputy inquiring as

Director to sufficicency

and reply of draft report

and response

Folios 21 undated A Leighton Part of final s.45 or 36

Area Manager harassment

(North) and allegations,

Manager Grafton

Grafton regional office

PART B

(Documents which relate to or are subsequent to an investigation by Assistant Area Manager (North) Ms V O'Toole, into formal complaints made by the applicant)

Folio 6 2/3/88 V O'Toole Part of report s.45 or 36

to on Mr Booker's s.40(1)(d)

Area Manager complaints -

(North) recollections

of staff as to

incident in the

lunchroom

to from report on

Area Manager Mr Booker's

(North) complaint -

comments on

the skills,

capacities and

work history

of other staff

members

to report on

Area Manager Mr Booker's

(North) complaint-

staff views

on union bias

allegations

Folio 15-undated confidential Whole s.45 or 36

after regarding

21/4/88) Mr Booker's

behaviour

5. At the hearing, Mr Booker, who conducted his own case, called his wife to give evidence and gave evidence himself. Mr Kenny, who appeared for the respondent, called David Brown, Senior Assistant Director (Resources), who is an authorised officer pursuant to sub-section 54(2) of the FOI Act. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") were admitted in evidence ("the T documents"). Mr Booker tendered a letter written by the Discrimination Investigation Officer, a letter written by Mr Dave Brown, a copy of the Department's "Guidelines on the Prevention and Elimination of Sexual Harassment", a bundle of documents collected by Mr Booker relating to the sexual harassment investigation, a written statement by Mr Booker on the denial of natural justice, an information handout on the New South Wales division of the Department, a written statement by Mr Booker on discrimination in promotion, an unsigned statement attributed to a co-worker in the Grafton office and a letter by Jan McCombie, consultant psychologist and they were admitted in evidence. Mr Kenny tendered some notes made by the Discrimination Investigation Officer, Anne Leighton, an affidavit sworn by Mr Brown, a letter by Daphne Carlson and these were also admitted.

6. Mr Booker argued that he should be given access to the documents. He said that he had been subjected to a campaign of conspiracy and harassment by certain employees and former employees of the Department. That harassment, he said has continued with the notification of his suspension on full pay as a result of unsigned allegations against him. He had still not, he said, received details of the allegations and had not received, in their entirety, all of the reports. In addition, the allegation made by one officer was, he said, a fabrication and wilfully defamed him.

7. Mr Booker argued that he should be given access to all documents which he had requested so that he could proceed with legal actions for compensation against various employees and former employees, so that he would know the allegations which had been made against him and to determine whether decisions made in regard to him had been justly made (transcript page 20). He argued that the documents which had been withheld had been so withheld on a technicality only under the FOI Act (transcript page 21). Mr Booker referred to the various documents which have been set out in paragraph 4 above in support of his case. Mr Booker went on to say that he should not have been subjected to the proceedings of a disciplinary committee and that he had not been given the opportunity to present witnesses.

8. Mr Booker relied upon the Department's Personnel Management Guidelines relating to Sexual Harassment in his case and, in particular, on the passage at pages 30-31 relating to access to documents under the FOI Act which states:

"The Freedom of Information Act provides rights of access

which parties to a sexual harassment case may wish to

exercise. The Guidelines on the keeping of and Access to

Personnel Records of Staff provide general guidance on the

obligations of managers to provide access to documents

concerning staff. Where possible the less formal

administrative processes authorised by the Guidelines

should be used but there is the obligation to advise staff of

their rights under the Freedom of Information Act.

The Freedom of Information Act makes particular provision

for persons to gain access to documents relating to their

personal affairs. Documents created in the course of

resolving a sexual harassment case present particular

problems when deciding on issues of privacy. It should be

noted that circumstances may occur where a document may

contain information that concerns the personal affairs of a

number of people and to disclose it may be an unreasonable

intrusion in to their private affairs. Despite this difficulty, the

general principle that staff should have access to material

about themselves should be applied. Freedom of

Information memorandum No. 23 provides further guidance

on the issue of personal affairs.

Situations may occur where disclosure of information under

the Freedom of Information Act would inhibit the proper

resolution of a case of sexual harassment. in these

circumstances agencies may claim that the documents are

exempt from disclosure in accordance with s.40(1)(c) and

40(1)(d) of the FOI Act. This provision allows an exemption

to be made where it is considered to have a substantial

adverse effect on the:

(a) personnel management interests of the agency

(40)(1)(c);and/or

(b) the proper and efficient conduct of the agency

(40)(1)(d)

Staff are advised to contact the FOI officer in their State for

assistance in determining:

the degree of access likely to be given in the

particular circumstances."

9. He also raised other matters relating to another request which he had made to the Department under the FOI Act when he sought access to documents relating to himself and his family as well as certain personnel records relating to him. Any decision which may have been made by the Department was not in issue in this case. Mr Booker also raised a number of other matters relating to the allegations which had been made against him and by him as well as the way in which the Department has handled various matters. He also complained that officers of the Department had spoken about the allegations to people outside the Department in breach of the Department's guidelines.

10. Mr Booker gave evidence. In response to questions put by Mr Kenny, he gave evidence about various matters relating to incidents in the Grafton Office of the Department. These related to allegations that he had threatened another officer that he would pull her hair out and to allegations revolving around which officer would be nominated to attend a meeting in Sydney as a union delegate. Mr Booker called his wife, Mrs Vivien Booker to give evidence. She is also an officer of the Grafton Office of the Department. Her evidence related to her having been sent on only one training course in the previous year and to matters relating to an application which she had made for another position in the office and the interview which had been held in relation to it. She said that the allegations which have been made against her husband were having an adverse effect upon her children. A report from Dr McCombie dated 10 July, 1989 referred to the stress that both Mr and Mrs Booker have been under due to events at the office.

11. In support of the Department's case, Mr Kenny called Mr Brown to give evidence. Mr Brown had also sworn an affidavit which was admitted in evidence. In it, he deposed that during 1988 the Department had investigated a complaint of sexual harassment against Mr Booker as well as complaints which Mr Booker had made. The documents to which Mr Booker now sought access related to those investigations. Mr Brown stated in his affidavit that the Department strove to take all reasonable steps to prevent its employees doing acts which would be unlawful under the Sex Discrimination Act, 1984 ("the SD Act"), to avoid liability under section 106 of that Act and to provide a workplace which is free of gender based discrimination and sexual harassment. In order to do this, it has policy guidelines, instructions, training programmes, posters and pamphlets declaring that information relevant to an allegation of sexual harassment or discrimination will be received in confidence. Officers dealing with allegation of that kind, he deposed, are required to maintain those confidences. If confidentiality cannot be assured, staff will be reluctant to discuss problems of this kind.

12. After referring to the Schedule of documents which is reproduced at paragraph 3 above, Mr Brown deposed that:

"(a) To the best of my information, knowledge and

belief the information in respect of which exemption is

claimed under section 45 of the Act was supplied to and

received by the Department in confidence.

(b) To the best of my information, knowledge and

belief the information in a document in respect of which

exemption is claimed under section 36 of the Act records

consultation that has taken place in confidence in the course

of or for the purposes of the conciliation or investigation of

staff grievances.

(c) To the best of my information, knowledge and belief, the

information in a document in respect of which exemption is

claimed under subsection 41(1) of the Act relates to the

personal affairs of a person other than the applicant.

(d) To the best of my information, knowledge and

belief, the disclosure of the information in a document in

respect of which exemption is claimed under paragraph

40(1)(d) would have a substantial adverse effect on the

management of personnel by the Department. Where staff

are required to work in an environment of sexual

harassment or discrimination, they are liable to suffer lack of

self esteem and motivation, perform their work less

efficiently and experience greater illness and absenteeism.

Skills and training are lost to the Department if staff are

forced to seek work elsewhere. Where productivity suffers,

the quality of service to the Departments's clients inevitably

suffers.

(e) The confidence of staff in management and the

productivity of the work unit depends, inter alia, on the

ability of management to resolve staff grievances and

tensions. These values will suffer if management is not able

to deal with sensitive matters in confidence.

(f) Release of the documents which the applicant is seeking

would severely hinder the progress of the Department in the

provision of an equitable work environment.

13. Mr Brown also gave oral evidence at the hearing. In response to a question by Mr Kenny regarding the standards used by the Department in receiving and keeping information which it receives from staff members, Mr Brown said that:

"It is a basic requirement of the personnel management that

staff-related matters be treated confidentially. When we

investigate grievances that fall outside the nature of this

particular case, where allegations are made against a staff

member, the staff members are made aware of the

substance of the allegations; and the identity of the

witnesses, if there are such, are protected."(transcript page

14. Mr Brown went on to say that in cases such as the present, the usual practice is to give an applicant under the FOI Act access to documents by deleting such matters as the names of the complainants. He said that he believed that if the information in the documents in question in this case were released to Mr Booker, then a number of staff in the office would feel very threatened by Mr Booker. The issue of whether or not there had been sexual harassment was only the tip of the iceberg and there were other matters under investigation (transcript page 55). By the term "safety", he did not mean that their "physical safety" was in danger (transcript page 56).

15. Mr Booker asked Mr Brown a number of questions relating to the investigation of the allegations relating to sexual harassment. The main thrust of his questions was directed to establishing that the allegations which had been made against him by officers of the Department were not true.

16. In his submissions, Mr Kenny relied upon the grounds set out in Mr Brown's affidavit and which are set out in paragraph 11 above and in the Schedule to that affidavit which is set out in paragraph 3 above. He addressed those arguments in the course of the hearing and I will turn to them shortly. Based on those arguments alone and on the evidence, I was not satisfied that the documents under consideration, were exempt. Consequently, I required their production pursuant to section 64 of the FOI Act. Having examined them, I am satisfied that they are accurately described in general terms the Schedule to Mr Brown's affidavit.

17. Turning first to the documents which relate to the investigation of allegations of sexual harassment against Mr Booker, he argued that they were exempt under the provisions of either section 36 or of section 45 and also under section 40. The Department had not relied upon section 36 when it made the decision under review and Mr Booker objected to its doing so at the hearing. However, as the Tribunal is not limited to the reasons given by the decision maker by the facts before him, Mr Booker's objection to argument on section 36 could not be allowed. The terms of sections 36 and 45 are such that they must be argued in the alternative as a document cannot be exempt under section 45 if its disclosure is

"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 unless the

disclosure would constitute a breach of confidence owed to

a person or body other than -

(a) a person in the capacity of Minister, member of the staff

of a Minister or officer of an agency; or

(b) an agency or the Commonwealth."

(sub-section 45(2))

18. It follows that the first argument to be considered is whether the documents come within the exemption set out in section 36 of the FOI Act. Mr Kenny did not develop the Department's argument that section 36 is applicable any further. That section provides, in so far as it is relevant:

"(1) Subject to this section, a document is an exempt

document if it is a document the disclosure of which under

this Act:

(a) Would disclose matter in the nature of, or relating to,

opinion, advice or recommendation obtained,prepared or

recorded, or consultation or deliberation that has taken

place, in the course of, or for the purposes of, the

deliberative processes involved in the functions of an

agency or Minister or the Government of the

Commonwealth; and

(2) In the case of a document of the kind referred to

in sub-section 9(1), the matter referred to in paragraph (1)(a)

of this section does not include matter that is used or to be

used for the making of decisions or recommendations

referred to in sub-section 9(1).

(3) ...

(4) ...

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

reason only of purely factual material contained in the

document.

(6) This section does not apply to-

(a) reports (including reports concerning the results of

studies, surveys or tests) of scientific or technical experts,

whether employed within an agency or not, including

reports expressing the opinions of such experts on scientific

or technical matters;

(b) reports of a prescribed body or organization

established within an agency; or

(c) the record of, formal statement of the reasons for, a final

decision given in the exercise of a power or of an

adjudicative function.

(7) Where a decision is made under Part III that an

applicant is not entitled to access to a document by reason of

the application of this section, the notice under section 26

shall state the ground of public interest on which the

decision is based

(8) The responsible Minister of an agency may,

either generally or as otherwise provided by the instrument

of delegation, by writing signed by him, delegate to the

principal officer of the agency his powers under this section

in respect of documents of the agency.

(9) A power delegated under sub-section (8), when

exercised by the delegate, shall, for the purposes of this Act,

be deemed to have been exercised by the responsible

minister.

(10) A delegation under sub-section (8) does not

prevent the exercise of a power by the responsible minister.

19. In view of the evidence and after examining them, I am satisfied that none of the documents under consideration is a report of the type referred to in sub-section 36(6). The first issue is whether their disclosure would disclose matter described in paragraph 36(1)(a). The paragraph, and the meaning of the words, "deliberative processes involved in the functions of an agency" have been considered by the Federal Court in several cases. In Harris v. Australian Broadcasting Corporation [1983] FCA 242; (1983) 50 ALR 551, Beaumont J carefully consider the meaning of a "deliberative process". His conclusion was based on the premise that the FOI Act draws a distinction between deliberative or policy - forming process on the one hand and purely factual investigative matters on the other. In Kavvadias v. Commonwealth Ombudsman [1984] FCA 179; (1984) 54 ALR 285, Shepherd J considered the judgement of Beaumont J in Harris. Although he did not need to conclude the issue, Shepherd J observed that he would not have imported any qualification to the ordinary meaning of the word "deliberative" based upon the need for there to be as part of the deliberative process some aspect of policy-forming. He would have tended to adopt a meaning more in accord with the definition of the term "deliberative" given in the Shorter Oxford Dictionary. Earlier, he had referred to that meaning in the following passage:

"According to the shorter Oxford English Dictionary the

word "deliberative" means, "pertaining to deliberation;

having the function of deliberating". The verb "deliberate"

means: "to weigh in the mind, to consider carefully with a

view to decision, to think over..; to use consideration with a

view to decision; to think carefully; to take time for

consideration...; to resolve, determine." The noun

"deliberation" means; "the action of deliberating; careful

consideration with a view to decision; the consideration and

discussion of the reasons for and against a measure by a

number of councillors; a resolution or determination;

deliberateness of action; absence of hurry; leisureliness."

The adjective "deliberate" means: "well weighed or

considered; carefully thought out; done of set purpose;

studied; not hasty or rash.""

20. In this Tribunal, section 36(1)(a), has been considered in Re Waterford and Department of the Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588 (Mr Hall, Deputy President, Messrs Prowse and Hughes, Members) . The applicant there applied for access to a range of documents relating to the processing of an earlier FOI application that had been made by him. Referring to the decision of Beaumont J in Harris (supra) the Tribunal said at paragraphs 56-60:

"56 There are some passages in his Honour's decision

that would suggest that the meaning of the expression

"deliberative processes" in the context or s36(1)(a) is

synonymous with "policy forming processes". If that be the

correct construction of those words, the documents to which

s36(1)(a) could apply would be restricted to documents

involving policy matters the subject of deliberative process.

The consequence of applying that view of s36(1)(a) in a

case such as the present would be to throw into question

whether, leaving aside perhaps the communications

between the Treasurer and the Attorney- General, there was

any "policy forming process" involved in the consideration

of Mr Waterford's original application.

57 However, we do not understand his Honour as saying

that the "deliberative processes "referred to in s36(1)(a) are

limited to policy matters the subject of deliberative

processes. Were the expression so limited, there could be

difficult questions as to the meaning of "policy" in that

context; see Spann, Public Administration in Australia, pp6-

8, 29-30; cf Dunsire, Administration the Word and the

Science, at 98-101 and 155-159.

58 As a matter of ordinary English the expression

"deliberative processes" appears to us to be wide enough to

include any of the processes of deliberation or consideration

involved in the functions of an agency. "Deliberation"

means "The action of deliberating: careful consideration

with a view to decision": see The Shorter Oxford English

Dictionary. The action of deliberating, in common

understanding, involves the weighing up or evaluation of

the competing arguments or considerations that may have a

bearing upon one's course of action. in short, the

deliberative processes involved in the functions of an

agency are its thinking processes - the processes of

reflection, for example, upon the wisdom and expediency of

a proposal, a particular decision or a course of action.

Deliberations on policy matters undoubtedly come within

this broad description. Only to the extent that a document

may disclose matter in the nature of or relating to

deliberative processes does s36(1)(a) come into play.

59 It by no means follows, therefore, that every document

on a departmental file will fall into this category. Section

36(5) provides that the section does not apply to a document

by reason only of purely factual material contained in the

document (see, in this regard, the Full Court decision in

Harris [1984] FCA 8; (1984) 51 ALR 581). See also s36(6) relating to

reports and the like. Furthermore, however imprecise the

dividing line may first appear to be in some cases,

documents disclosing deliberative processes must, in our

view, be distinguished from documents dealing with the

purely procedural or administrative processes involved in

the functions of an agency. A document which, for

example, discloses no more that a step in the procedures by

which an agency handles a request under the FOI Act is not

a document to which s36(1)(a) applies.

60 It is documents containing opinion, advice,

recommendations etc relating to the internal processes of

deliberation that are potentially shielded from disclosure -

documents that might, perhaps, have been more aptly

described in the headnote as "Internal Thinking

Documents". Out of that broad class of documents,

exemption under s36 only attaches to those documents the

disclosure of which is "contrary to the public interest":

s36(1)(b) of the FOI Act and cf ss35, 36, 37(1)(b) and 37(2)

of the Administrative Appeals Tribunal Act 1975."

21. The Tribunal's decision in Waterford was cited with approval by Senior Member Ballard in Re Scrivanich and Public Service Board (1984) 6 ALD 98 when he held that a report prepared by the Director of the Grievance and Appeals Bureau on a grievance made by the applicant was exempt under section 36. When taken on appeal to the Federal Court, Keely J decided that the report could not properly be described as an advice obtained or prepared in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency. Keely J concluded that he had "formed that opinion as a matter of construction of section 36(1)(a) and consider(ed) that it is consistent with the views expressed in Harris (supra) at 559- 560."

22. Having considered the documents relating to the allegations of sexual harassment in the light of these cases, the first question to consider is whether they came within the meaning of "opinion", "advice", "recommendation", "deliberation" or "consultation" before consideration needs to be given to whether or not they are part of the "deliberative process". I am satisfied that none comes within the description of an "opinion, advice or recommendation" or a "deliberation". Whether they are described as "reports" or "notes of interview" in the Schedule, each contains only what amount to notes of interview or statements from witnesses. They contain nothing in the nature of "internal thinking documents" of the Department. They are in the nature of evidence taken by the Department before it starts to consider the issues.

23. That leaves open the question whether the documents may be described as "consultation(s)" as that word is used in paragraph 36(1)(a). "Consultation" is defined in the Shorter Oxford Dictionary as

"Act of consulting; deliberation; conference"

"1.v.t. Have deliberations (with person, or abs). 2. v.t. Seek

information or advice from (person, book, one's watch, etc);

take into consideration (feelings, interests); ..."

24. It has also been considered in the context of town planning legislation both in the United Kingdom and in Australia. In Rollo v. Minister of Town and Country Planning (1948) 1 All ER 13 CA per Lord Greene, MR, at p 17 it was said:

"A certain amount has been said as to what consultation

means. In my view ... it means that, on one side, the

Minister must supply sufficient information to the local

authority to enable them to tender advice and, on the other

hand, a sufficient authority to render that advice."

In Australia, Myers J in Attorney-General v. J.N. Perry Constructions Pty. Ltd. (1961) 6 LGRA at page 391 said in relation to a provision that a particular determining authority was to "consult" with the Council before it made a decision that:

"If the two councils or their representatives had met and the

Cumberland County Council had made the request at the

meeting and it had been agreed to, there would have been a

consultation regarding development of the kind specified

and I do not think that it was any less a consultation because

the same thing was done by correspondence."

25. Taking these passages into account, it seems to me that, in order for there to be a consultation, there must be something of a two way exchange between at least two parties. The documents which I am presently considering are in the nature of notes of interview or statements of witnesses. As such, I do not consider that they can be regarded as "consultations" within the meaning of section 36. Having reached that view, there is no need for me to consider whether the Department's investigation into the allegations of sexual harassment can be described as part of its "functions" or whether their disclosure would disclose "deliberative processes" as those terms are used in paragraph 36(1)(a). It follows that the documents do not come within the terms of paragraph 36(1)(a).

26. It follows from this conclusion that it would be relevant to consider whether they are exempt pursuant to section 45. However, in view of the conclusion I have reached in relation to section 40 below there is no need to consider section 45.

27. The documents which I am considering are, as I have said, in the nature of interview reports or statements taken from witnesses and relate to the investigation of the allegations of sexual harassment made against Mr Booker. Whether or not the statements made in those documents are true was a matter which greatly concerned Mr Booker. While his concern is understandable, the truth or otherwise of the statements in those documents is not a matter in issue before me. That is a matter for determination in relation to the investigation of the allegations. Nor is it relevant to my consideration of whether the documents contain "confidential information received under circumstances imposing an obligation of confidence".

28. Mr Kenny also argued that the documents were exempt by virtue of section 40. That section, in so far as it is relevant, provides:

"40(1) Subject to sub-section (2), a document is an exempt

document if its disclosure under this Act would, or could

reasonably be expected to -

(a) ...

(b) ...

(c) have a substantial adverse effect on the management or

assessment of personnel by the Commonwealth or by an

agency;

(d) have a substantial adverse effect on the proper

and efficient conduct or the operations of an agency;

or

(e) have a substantial adverse effect on the conduct

by or on behalf of the Commonwealth or an agency of

industrial relations.

(2) 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.

29. Mr Kenny argued that the documents were exempt pursuant to paragraph 40(1)(d) on the basis that their disclosure would have a substantial adverse effect on the management of personnel in the department. Although the way in which his argument was presented and the affidavit of Mr Brown tended more to a conclusion that he was in fact arguing paragraph 40(1)(c), I have considered paragraph 40(1)(d) as it is the section on which he relied. In doing that, I have been unable to find any authority in which consideration is given to the meaning of the "operations" of an agency. Consequently, I have been unable to find any authority that assists me in determining whether disclosure of documents relating to an investigation into an allegation of sexual harassment can be said to have any effect on the "operations" of the agency.

30. The Concise Oxford Dictionary defines "operation", in part, as

"1. operating is being operated; working, action, way thing

works, (time or range of) efficiency or validity, scope

....active process, activity, performance, discharge of

function..."

I have not been able to find assistance from any other source as to the meaning of the word. No evidence was led specifically as to what are the "operations" of the Department. I have considered the Administrative Arrangements Order to which Mr Kenny referred me in relation to a consideration of "functions" under section 36. That Order states that the "principal matter dealt with " by the Department are "income security policies and programs" and then lists the particular enactments with which the Department is concerned. If it can be said that the operations of the Department are concerned with income security policies and programs, then it is difficult on its face to conclude that the Department's investigation into an allegation of sexual harassment relate in any way to its "operations". A Department however, cannot operate in isolation. Its operations are necessarily conducted by staff. In order for these documents to be exempt under section 40(1)(d), I must effectively be satisfied first that disclosure of matter relating to staff conduct and behaviour has some effect on the conduct of the Department's operations. At one level it does of course as, presumably, the Department would be able to carry out its operations more effectively if the attention of some of its staff were not diverted by the investigation or by any of the events that preceded it. It seems to me that , on the little evidence that I have before me and as the issue was not fully argued, I am unable to find that disclosure of those accounts could have any effect on the operations of the Department.

31. I am somewhat reinforced in this view by the provisions of paragraph 40(1)(c) set out in paragraph 27 above. That relates in part to the management of personnel and it seems to me that an inference may be drawn that paragraph 40(1)(d) is to be confined strictly to matters relating directly to operating and that matters relating to staff which have only a more individual effect should be considered under paragraph 40(1)(c). I do not intend to express any concluded view, though, as the matter has not been fully argued.

32. I will, however, consider 40(1)(c). Even though the respondent has not specifically made submissions on 40(1)(c), it is open to me to consider its application for upon every application for review the Tribunal may review the decision before it in light of the applicable law, even if a particular sections or particular enactments have not been urged upon it (Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534, Minister for Health v. Sharvid Pty Ltd (1986) 10 ALD 124). Before turning to consideration of the effect that disclosure here would have on the management of personnel, the significance of the word "substantial" must be determined. The phrase "substantial adverse effect" and in particular the word "substantial", has been considered in a number of cases. The word "substantial", is not one of clear meaning. There are at least two alternative senses in which it may be used, on the one hand it may mean large or weighty or of considerable amount, on the other, it may mean real or of substance as opposed to nominal or illusory. In Palser v. Grinling (1984) 1 All ER 1 Viscount Simon held that in the context in which he had to consider it the word "substantial" meant "considerable, solid or big".

33. In Tillmanns Butcheries Pty Ltd v. Australasian Meat Employees Union and Ors (1979) 27 ALR 367 Bowen C.J. and Deane J considered the words "substantial loss or damage". Bowen C.J. at page 374 said:

"The word "substantial" would certainly seem to require loss

or damage that is more than trivial or minimal. According to

one meaning of the word the loss or damage would have to

be considerable (see Palser v. Grinling (1984) AC 291 at

316-7). However, the word is quantitatively imprecise; it

cannot be said that it requires any specific level of loss or

damage. No doubt in the context in which it appears the

word implores a notion of relatively, that is to say, one

needs to know something of the circumstances of the

business affected before one can arrive at a conclusion

whether the loss or damage in question should be regarded

as substantial in relation to that business."

"The word "substantial" is not only susceptible of ambiguity;

it is a word calculated to conceal a lack of precision. In the

phrase "substantial loss or damage", it can, in an appropriate

context, mean real or of substance as distinct from

ephemeral or nominal. It can also mean large, weighty or

big. It can be used in a relative sense or can indicate an

absolute significance, quantity or size. ....As at present

advised, I incline to the view that the phrase, substantial loss

or damage, in s45D(1) includes loss or damage that is, in the

circumstances, real or of substance and not insubstantial or

nominal. It is, however, unnecessary that I form or express

any concluded view in that regard, since the ultimate

conclusion which I have reached is the same regardless of

which of the alternative meanings to which reference has

been made is given to the word "substantial" in s45D(1).

34. In Harris (supra) Beaumont J considered which reports or an independent review of the Legal Department of the respondent was exempt under the FOI Act. Beaumont J said that it is possible that the reports could embarrass those charged with supervising or reviewing the operations of the Legal Department but went on to say on page 564:

"However, I am not persuaded that any such effect, even if

adverse, could fairly be described as "substantial" in its

impact. In my view, the insertion of a requirement that the

adverse effect be "substantial" is an indication of the degree

of gravity that must exist before this exemption can be made

out."

Beaumont J was considering section 40 as it existed before it was replaced in 1983. The particular words which he considered, however, have not been varied and are still relevant.

35. Muirhead J has also considered the expression "substantial adverse effect" as it appears in section 40 in the case Marco Ascic v. Australian Federal Police (1986) 11 ALN N184 who there observed:

"The reference to "gravity" in that dictum (and I say so with

respect) causes me some difficulty. "Substantial" is a word

of common usage which can stand on its own feet and the

work ascribed to it in statutory interpretation will depend on

the statute and of course the issues under consideration. to

the word in Tillmanns Butcheries Pty Ltd v. Australasian

Meat Industry Employees' Union (1979) 27 ALR 376 at

382. Whilst the court there was considering an application

under s.45D of the Trade Practices Act which refers to

"substantial loss or damage" His Honour's words that

"substantial loss or damage....Includes loss or damage that is

in the circumstances and closer to the plain meaning of the

word and its dictionary interpretations." (page N185)

Finally, this Tribunal, presided over by Beaumont J, has considered paragraph 40(1)(c) in Re Williams and Registrar of the Federal Court of Australia [1985] AATA 226; (1985) 8 ALD 219 (Mr McMahon, then Senior Member and Dr Renouf, Member). Beaumont J said at page 222 that the difficulties in establishing that "substantial adverse effects" will occur are formidable.

36. Turning now to the evidence, I have Mr Brown's affidavit and his oral evidence referred to paragraphs 11 and 12 above. Mr Kenny argued on the basis of this evidence that if confidentiality were not able to be assured, management would not be able adequately to deal with problems of sexual harassment and general staff grievances. This, he said, would have a consequent effect on morale and productivity. Mr Kenny also argued that such is the personality and nature of the applicant that release of the information sought would create serious staff problems in the Grafton office. Mr Booker was a difficult person and the cause of some friction within the Grafton office. It was feared that if released to him, Mr Booker would attempt to use the information sought, in litigation against other members of the staff.

37. On the evidence, I am satisfied that the atmosphere in the Department's office must have been strained, at best. It was filled with accusations and suspicion. My consideration of the release of the documents must be considered against that background. In doing so, I emphasise that I am making no findings as to the truth or otherwise of any of the allegations made either by Mr Booker or against him. There are other avenues available to all parties in which those issues may be resolved. This Tribunal is not one of them.

38. The task of managing personnel is not an easy one. People have different personalities and they differ as to their attitudes and tolerances. Yet it is essential that they work together to achieve a common goal. It is inevitable that there are occasions on which problems arise between people and that there are arguments and allegations which need to be settled. Over the years, various mechanisms have been developed for dealing with such arguments and disputes. Whether or not they have been successful in this case is not relevant. What is relevant is that they exist and that they are being used. I must take some account for the fact that those mechanisms are being used in considering whether the documents are exempt.

39. On the evidence I am satisfied that the Department was formally investigating all of the allegations and, to that end had obtained statements from witnesses. I am also satisfied that in the atmosphere in that office, those people would not have been prepared to make the full statements that they did had they known that they would have been released under the FOI Act. That in itself would have led to the Department's not being able to investigate the complaints and allegations by all parties. Unresolved allegations and complaints are not only not conducive to good management of staff but can easily lead to gross inefficiencies in the workplace.

40. In investigating complaints and allegations, the mechanisms which exist, usually provide for the person against whom they are directed to be advised of them. The Personnel Management Guidelines which were admitted in evidence make such provision. Those Guidelines themselves recognise that access to documents relating to allegations of sexual harassment may be made available under the FOI Act. I am not satisfied that this is a case where they should be. On the evidence, I am satisfied that the atmosphere at the office is so disharmonious that disclosure under the FOI Act could only exacerbate the situation and prejudice any chance that the Department might have of resolving the issues between staff members. The management of staff in a branch office would be severely prejudiced I am satisfied, therefore, that disclosure of the documents would have a substantial adverse effect on the management or assessment of personnel in the Department's office.

41. That leaves for consideration sub-section 40(2). The relationship between sub-section 40(2) and sub-section 40(1) is identical to that between sub-section 33A(5) and sub-section 33A(1). These latter provisions, which deal with matters of Commonwealth/State relations and information communicated by a State to the Commonwealth, were considered by the Federal Court (Woodward, Wilcox and Burchett JJ) in Arnold (on behalf of Australians for Animals) v. Queensland and Anor (1987) ALR 73 at 607. Wilcox J at pages 616-617 said:

"Finally, it is important to bear in mind the significance of

sub-s(5) in the scheme of s33A. Sub-section (5) assumes

that, as a general principle, there is a public interest in the

non-disclosure of a document falling within sub-s(1). But it

contemplates that, nonetheless, it may, on balance, be in the

public interest for matter in that document to be disclosed,

The sub-section does not specify criteria for consideration in

the making of that judgment. All relevant circumstances

must be taken into account. One of those circumstances will

always be the principle enshrined in s3 of the Act.

...

It will be noted that Parliament was not content merely to

espouse a policy of extending access to information, as

stated in s3(1). The legislature went further by requiring the

implementation of that policy, as far as possible, in the

exercise of the discretions conferred by the Act. Although it

would not be correct to regard s33A(5) as conferring a

discretion, the command of s3(2) is an indication that

Parliament regarded the principle constituting a weighty

factor to be taken into account in making a judgment as to

the public interest in any decision whether to disclose

particular documents. In a particular case, especially where

the degree of public disadvantage caused by disclosure is

small, or the prospect of any public disadvantage is

comparatively remote, that principle may itself be enough to

tip the balance in favour of disclosure, notwithstanding that

the information falls within s33A(1)."

Burchett J (with whom Woodward J agreed) said at page 627:

Reference has also been made to sub-s(5) of s33A which

provides: "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."

That sub-section does not confer a discretion upon anyone.

It requires a determination of a matter of fact, albeit a matter

upon which different minds might well, in a particular case,

reach different conclusions. Where either branch of sub-s(1)

is found to apply, what sub-s(5) does is raise the question

whether nevertheless it can be affirmed of matter in the

document that its disclosure under the Act would, on

balance, be in the public interest. In reaching that

determination, it is clear that the tribunal would have regard

to the object of the Act expressed in s3, but it would also

have regard to the provision by Parliament of the

exemption. It might be expected in practice to look for

special features of the instant case which might indicate

where, in that particular case, the balance lay. Parliament

having provided an exemption, and an escape route from

that exemption, I do not think it is very profitable to put a

gloss upon the terms which Parliament has itself laid down

as a test to be applied - it is for the decision maker to decide

whether he can affirm on balance that disclosure would in

the public interest."

I have considered these documents in the light of the principles set out in Arnold's case and particularly the comments made in that case regarding the weight to be given to sub-section 3(2) in considering whether to disclose documents. In this case, there is no evidence that disclosure would be to the public interest. Certainly, the Act is based on the premise set out in section 3 that disclosure of information be facilitated and promoted. However, in this case, the serious and adverse consequences which we have, in considering paragraph 40(1)(c), found would flow from disclosure, far outweigh any public interest which might flow from that disclosure. Consequently, in this case, the principle in sub-section 3(2) is not sufficient to tip the balance in favour of disclosure.

42. There remains to be considered those documents detailed in Schedule B to Mr Brown's affidavit. Again these contain reports of interviews of witnesses relating to complaints and allegations made by Mr Booker or reports relating to those investigations. For the same reasons as are given in paragraphs 29 to 41 above, I consider that the documents are exempt pursuant to paragraph 40(1)(c).

43. Consequently, I affirm the decision under review.