Freedom of Information Act 1982 - Sections 4(1), 11(2), 15, 15(2)(b), 22, 22(1), 22(1)(a)(ii), 22(1)(c), 37, 40, 40(1)(c), 40(1)(d), 40(2), 41, 41(1), 41(2), 42, 43, 43(1)(c)(ii), 58(2),

Administrative Appeals Tribunal Act 1975 - Sections 35, 37

Freedom of Information Act 1991

Attorney-General v Cockcroft (1986) 64 ALR 97

Zalcberg and Australian and Overseas Telecommunications Corporation (unreported, 12 June, 1992, Decision No.8015)

Wiseman v The Commonwealth (unreported, 24 October, 1989, Decision No.637)

Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257

Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 13 AAR 261

Re Booker and Department of Social Security (unreported, 13 September, 1990, Decision No.6189)

Attorney-General (N.T.) v Maurice and Others [1986] HCA 80; (1986) 161 CLR 475

Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 71 ALR 673

The Tribunal varies the decision of a delegate of the Secretary dated 4 March, 1993 affirming a decision of another delegate dated 8 February, 1993 by:

1. setting aside that part of the decision refusing access to Attachment

E to the Department briefing to the Minister dated 3 September, 1992

(i.e. document 5) and substituting a decision that the applicant be

granted access to that document under the Act;

2. setting aside that part of the decision refusing access to the letter

dated 15 October, 1992 from Mr Sciacca to the Minister for Primary

Industries and Energy (document 6) and substituting a decision that the

applicant be granted access to all of that document other than:

(1) the fourth paragraph commencing with the word "To"; and

(2) the penultimate paragraph commencing with the word "In"; and

3. otherwise affirming the decision under review.

S.A. FORGIE On 30 April, 1993, the applicant, the Russell Island Development Association ("RIDA"), applied for review of a decision of Mr John Wicks of the Department of Primary Industries and Energy ("the Department") dated 4 March, 1993 affirming an earlier decision of Mr Peter Webb dated 8 February, 1993. In that earlier decision, Mr Webb had decided that RIDA would be granted access to some of the documents it had requested under the Freedom of Information Act 1982 ("the Act") but not to either the whole or part of others. It is in relation to those documents to which access was refused either in whole or in part that RIDA lodged its application.

2. At the hearing, RIDA was represented by its President, Mr Ian Olsson and Ms Atkinson of Counsel represented the Secretary of the Department. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") were admitted in evidence but an order was made under section 35 of that Act restricting access to those documents, or parts of documents, which are the subject of these proceedings and for which exemption is claimed under the Act. Also admitted in evidence were a copy of a schedule of the documents for which exemption is claimed, an affidavit of Mr Peter Webb sworn on 1 November, 1993, two affidavits of Mr Olsson sworn on 7 November, 1993, one of which attached the documents to which RIDA had been given access ("the accessed documents") and a further affidavit sworn on 9 November, 1993 and a file note of Mr Webb dated 24 November, 1992. Mr Webb gave evidence in support of the Secretary's case.

3. On behalf of RIDA, Mr Olsson first wrote to the Department on 8 December, 1992 requesting "access to the original selection of the Russell Island Development Association Inc. for a LEEP Grant and subsequent correspondence, telephone notations, notes or memorandums to or from third parties ie: the Minister, the press, politicians, persons from the Redland Shire Council Progress Association and Macleay Island." (T documents, T8) Mr Olsson went on to ask that the Department consider remitting any fees on the bases that RIDA was short of funds, that the documents sought related to its personal affairs and that the matter is in the public interest of a substantial section of the public, namely the people on Russell Island and in the Redland Shire.

4. By virtue of the decision under review, RIDA has been granted access to approximately 36 documents in their entirety. It has been granted access to a further five documents in part and denied access to four documents in their entirety. The documents to which access was refused either in whole or in part were described in greater detail in the Schedule of Exempt documents lodged on behalf of the Secretary in these proceedings. I will return to them later. On 22 February, 1992, Mr Webb wrote a further, and helpful, letter to RIDA in which he specifically linked a number of the documents to which access had been granted with the categories of documents identified in RIDA's request.

5. During the proceedings, it became apparent that there was no dispute between the parties with regard to a number of factual issues. On that basis and on the basis of all of the evidence, I will now set out the findings of fact which I have made.

6. The purpose and operation of the Local Energy Efficiency Projects Scheme ("the LEEP scheme") is found in the T documents, the accessed documents and in the affidavit of Mr Webb and I have made my findings in this regard on that material. Under that scheme, which has no legislative basis, grants are paid to various community groups. The grants are intended to provide support and encouragement to those groups to implement projects promoting energy efficiency and energy conservation and providing information about those practices.

7. The criteria to be met by projects for which grants would be given were set out at page 3 of the LEEP Guidelines and Conditions (see accessed documents). They were:

"Grants will be provided under LEEP for projects which are compatible

with the Federal Government's approach to improving energy efficiency

and which in general satisfy the following requirements:

. the geographical area to be covered in the project is 'manageable' in

terms of implementing a local project

. the planning of the project is locally driven and involves local

community groups and leaders

. there is adequate commitment of local funding and provision of local

organisational support

. the project reaches out to, and involves, a broad cross-section of the

local community

. the project has a central theme which will capture local attention,

including the interest of the local media

. objectives are clearly defined and there is a system for assessing the

project's effectiveness

. there are good prospects of bringing real and direct benefits to the

local community

. the project is related to longer term strategy for improving energy

efficiency in the area."

8. The scheme was advertised in the print media and applications invited. RIDA submitted an application for a grant and was one of some 222 applicants. Once the applications were received, they were checked against a checklist and assessed. The first step was that of assessing eligibility. In brief, that required that there be an underlying commitment to promote energy efficiency, that the project address the aims set out in the Guidelines, that it satisfy the criteria set out in the Guidelines and that the applicant be a properly constituted body as set out in those Guidelines (see accessed documents). Only if the criteria were met was the project then assessed and either recommended or not recommended for funding.

9. There is no suggestion in any of the evidence I have that the relative merits of each project were weighed against each other. They would seem to have been rated only against the criteria of the LEEP Scheme and there is no evidence that the applications for grants have been ranked in any particular order so that only a certain number are actually given a grant. This is so regardless of the fact that I find that the Department's assessment required that the project be rated as either high priority, medium priority or low priority. I have reached that conclusion on the bases that the question asked of the assessor is "Overall, what rating should be accorded this particular project" (accessed documents). The emphasis given in the form to the words "this particular" seems to me to direct attention to the merits of the project itself and not to its merits in relation to the projects proposed by other applicants. The statistical analysis of the applications in Attachment C to the Minister's briefing (exempt document 4 and see also paragraph 22 below) does not purport to rank the applications, to assess one against another or even describe the various merits of each, or even any, of the projects. This adds also to my view that there is no such ranking or rating process in the administration of the LEEP scheme.

10. On 3 September, 1992, Mr Webb, who is the Assistant Secretary of the Energy Programs Branch of the Energy Division of the Department, wrote a minute to the Minister for Resources ("the Minister"). Mr Webb advised that it was recommended that 63 projects, referred to in Attachment A to the minute, be funded. Those not ranked for funding were referred to in Attachment B. The minute went on to recommend that the Minister

"(a) approve the proposed funding for sixty-three grants under LEEP as

summarised at ATTACHMENT A

(b) consider a suitable strategy for announcement of the successful

applicants including the media release at ATTACHMENT D, and

(c) if you agree to (a), sign the letters at ATTACHMENT E." (T

documents, T13)

11. At the conclusion of the minute, as it has been released to RIDA, appear the words "Agreed and letters signed by Minister for Resources 17/9/92. For release in week following." (accessed documents)

12. RIDA was advised by the Minister that its application had been successful in a letter dated 22 September, 1992. The Minister went on to advise that his Department would be writing "shortly with further details about the grant, including any special requirements that may need to be addressed as part of making a formal offer of the grant." (accessed documents). He also issued a Press Release on 23 September, 1992 advising that grants had been allocated and attaching a list of successful applicants.

13. Following this announcement, Mr Webb wrote on 2 October, 1992 to RIDA providing further details about the proposed grant and submitting a formal offer of the grant. In particular, Mr Webb advised it of the special and general conditions set out in the Agreement which, together with RIDA's application for a grant, comprised the Department's formal offer for a grant to be made under the LEEP scheme. "Confirmation of the offer", which I understand to mean acceptance of the offer, was to be effected by countersigning the Agreement, initialling the Special Conditions and returning a copy to the Department. Upon receipt of the signed Agreement, arrangements would be made to effect the grant payment in accordance with the Special Conditions.

14. Following the announcement of the grants, representations were made to the Minister regarding the grant made to RIDA. These were made by the Redland Shire Council and the Russell Island Progress Association in early October and by the Hon. Con Sciacca, MP in mid October.

15. On 20 October, 1992, Mr Webb wrote to RIDA and advised of his decision to suspend payment of the grant funds pursuant to sub-clauses 13.2(b) and 13.2(ii) of the General Conditions (T documents, T3). The combination of these sub-clauses entitled the Commonwealth to suspend payment pending a review of the project's future performance where the Department is satisfied that any statement made in the application is incorrect or incomplete in a way which would have affected the original decision to approve the grant. Mr Webb said that his decision related to certain concerns that had been drawn to the attention of the Department since the announcement of the grant and there was a question whether RIDA's project application satisfied various criteria set out in the LEEP Guidelines. The criteria were then set out and Mr Webb advised that all information would be considered in reviewing whether the project came within the LEEP criteria. Mr Webb suggested that "early endeavours be made through constructive dialogue to see if common ground can be identified between the main interests (viz the Redland Shire Council, the Russell Island Progress Association and the Russell Island Development Association)." (T documents, T3)

16. Mr Webb advised the Minister of his decision to suspend payment to RIDA in his minute of 21 October, 1992 (accessed documents). In addition, Mr Webb provided responses to the representations received by the Minister from Mr Keogh of the Redland Shire Council (on 9 October, 1992), Mrs McLurcan of the Russell Island Progress Association (on 6 October, 1992) and Mr Sciacca (on 15 October, 1992). Those responses were sent on 27 October, 1992 (accessed documents) All of the letters were in similar terms. That to Mr Sciacca is typical and said:

"Thank you for your letter of 15 October, 1992 relating to the provision

of a grant to the Russell Island Development Association under the Local

Energy Efficiency Projects (LEEP) scheme.

Having regard to issues which have been raised for the first time since

the grant was announced, the Department of Primary Industries and Energy

has taken action to suspend payment of the grant pending a review of the

future of the project.

In this regard, the suspension provides the opportunity for all

interested parties to see whether there is any basis for a cooperative

effort.

That being said, I can assure all interests that funding for the project

under the LEEP scheme will not be able to proceed unless the criteria

for the scheme are generally satisfied. In this regard, I draw your

attention to page 3 of the enclosed copy of the LEEP Guidelines and

Conditions Publication." (accessed documents)

17. While indicating that the Department had not reached a final position on the matter and suggesting information which RIDA could supply to assist in the review, Mr Webb wrote again to RIDA on 27 October, 1992 and advised:

"Based on our consideration of RIDA's application prior to the

announcement of the grant, the Department had no reason to believe that

the provision of the grant would prospectively lead to a situation where

some groups with an interest in Russell Island would call into question

the viability of the project and therefore the suitability of the

project for Commonwealth support. As you are aware, the groups in

question are the Redland Shire Council and the Russell Island Progress

Association.

Nevertheless, now that those protests have been made, the Department's

judgement is that the decision to provide a grant would have been

affected to the extent that the grant would not have been recommended

had the nature and extent of those protests been known at the time of

consideration of RIDA's application. In particular, the protests

provide sufficient prima facie evidence that the project would not be

sustainable in the face of the opposition in question. Accordingly,

there is then a direct link with the four criteria mentioned in my

letter of 20 October 1992 in that, as a result of the protests, the

criteria are not generally satisfied. In other words, RIDA's

application was incomplete in a way which would have affected the

original decision to approve the grant, even though RIDA may not have

been in a position to adequately forewarn the Department of the likely

reaction." (T documents, T 4)

The Minister expressed similar sentiments to RIDA in his letter of 4 November, 1992 (accessed documents).

18. RIDA sent further information to assist the Department in conducting its review as did Mr Keogh and Mrs McLurcan (accessed documents). Having conducted the review, Mr Webb wrote to the Minister on 27 November, 1992 advising him of the views of the Redland Shire Council and of the Russell Island Progress Association as well as of the Department's efforts to encourage the parties to find common ground. The minute went on to advise the Minister of the Department's decision to terminate the grant to RIDA under the LEEP scheme.

19. On 2 December, 1992, Mr Webb wrote to RIDA and advised that the Department had decided to terminate the whole of the Agreement pursuant to sub-clause 12.1 of the General Conditions and that, as a consequence, no funds would be made available to RIDA under the LEEP scheme. Sub-clause 12.1 entitles the Commonwealth to terminate the agreement and any payment at any time and for any reason. The letter continued

"Although the Commonwealth is not required under sub-clause 12.1 to give

reasons for termination of the Agreement, I wish to advise that the

principal reason for the termination of the Agreement rest on the

Department's view that it is not viable to proceed with the grant in the

circumstances where there is very considerable, and apparently

irreconcilable, opposition to the grant from several interested parties.

In the Department's view, it is highly unlikely that the Association's

stated aims for the project could be carried out effectively and in

accordance with the underlying aims of the LEEP scheme in the climate

that currently prevails and while it continues. The Department further

considers that to proceed with the grant has a reasonable likelihood of

embroiling the Department and the scheme in wider issues which are of no

direct concern to the Department.

An associated reason for the Department's action under sub-clause 12.1

of the Agreement is that the grant would not have been approved in the

first instance had the information now at hand been in its possession at

the time of the Department's assessment of the Association's

application. As such, the Department, would have formed the view that

it was highly unlikely that the LEEP criteria could have been generally

satisfied." (T documents, T 7)

20. Mr Webb again advised the Minister of the Department's decision in a minute dated 3 December, 1992. The Minister wrote a brief letter to Mr Sciacca advising him of the termination and Mr Webb wrote in similar terms to Mr Keogh and to Mrs McLurcan (accessed documents).

21. The ten documents for which exemption was claimed either in whole or in part were divided into three different categories and submissions made on that basis. I will do the same. The submissions made by the parties were lengthy and were given over two days. I have not attempted to set them out in detail but have taken them into account. I will mention, however, one of the main themes in Mr Olsson's submissions. That theme was that access to the documents was in the public interest. I am unable to grant or deny access to documents simply on that basis. I am limited by the terms of the Act which gives Australians a general right of access to information in documentary form in the possession of Ministers, Departments and public authorities but which also qualifies that right by permitting certain information to be claimed as exempt. It is the Act which effectively prescribes what is in the public interest and, unless the Act allows me to do so as in sub-section 40(2), I cannot go outside the terms of the Act to give access to documents on the basis that it is in the public interest to do so. That this is so, is underlined by sub-section 58(2) which provides that the Tribunal does not have any discretion to grant access to a document which it has found to be an exempt document within the meaning of the Act.

22. While they had been treated as individual documents, documents 1-5 were essentially different parts of the one document. That document was described as a Departmental Briefing dated 3 September, 1992 to which there were four attachments. The briefing comprised, as the Schedule of Documents stated, a "commentary outlining the general characteristics of applications for LEEP grants which had not been recommended for funding and outlining the diversity of LEEP applications in broad terms and by cross-reference to document 4". Document 4 is Attachment C to the briefing and is a statistical comparison of the applications which had been received and those applications proposed for funding under the LEEP scheme. Attachment A is material relating to proposed successful applicants other than RIDA, Attachment B is material relating to proposed unsuccessful applicants for LEEP grants and Attachment E is a form letter to all proposed successful applicants for LEEP grants. For the sake of completeness, I note that Attachment D is a draft media release which I understand has already been released to RIDA.

23. During the course of the proceedings, Ms Atkinson advised that exemption was no longer claimed for Attachment E. As it was not practical for the Secretary to vary his formal decision to reflect his view and as the Tribunal does not have power to grant access to a document which is exempt (sub-section 58(2) of the Act), I have considered whether Attachment E is an exempt document. I have concluded that it is not and will reflect that in my final decision.

24. Ms Atkinson submitted that the remaining documents in this category were exempt as they are not relevant to the request. She referred to sub-paragraph 22(1)(a)(ii) of the Act in support of her submission. In order to understand it, sub-section 22(1) needs to be set out in full:

"(1) Where:

(a) an agency or Minister decides:

(i) not to grant a request for access to a document on the ground that

it is an exempt document; or

(ii) that to grant a request for access to a document would disclose

information that would reasonably be regarded as irrelevant to that

request; and

(b) it is possible for the agency or Minister to make a copy of the

document with such deletions that the copy:

(i) would not be an exempt document; and

(ii) would not disclose such information; and

(c) it is reasonably practical for the agency or Minister, having regard

to the nature and extent of the work involved in deciding on and making

those deletions and the resources available for that work, to make such

a copy;

the agency or Minister shall, unless it is apparent from the request or

as a result of consultation by the agency or Minister with the

applicant, that the applicant would not wish to have access to such a

copy, make, and grant access to, such a copy."

25. Mr Olsson argued that the documents were relevant to his request in that they are part of the selection process and his request was wide enough to include all documents forming part of the selection process. As RIDA's grant was ultimately cancelled, it is also important for it to know who were the other unsuccessful applicants for grants. It is not possible, Mr Olsson said, to separate the selection process from the rejection process and so a broad approach should be adopted in interpreting the request. In addition, it is in the public interest to know how the various recipients of the grants were selected as they are receiving public monies.

26. Section 22 was amended by the Freedom of Information Act 1991. Prior to its being amended, section 22 related to the deletion of exempt material but it now also applies to the deletion of irrelevant information. I have been unable to find any cases which have considered the effect of the section in its amended form.

27. Although the words "reasonably be regarded" appear nowhere else in the Act other than in sub-paragraph 22(1)(a)(ii), the somewhat similar formula of "could reasonably be expected to" appears in sections 37 and 43. While the words "regarded" and "expected" are not the same, there is some merit in considering the way in which the expression "reasonably be expected to" has been interpreted by the Full Court of the Federal Court in the context of sections 37 and 43.

28. In Attorney-General v Cockcroft (1986) 64 ALR 97 (Bowen CJ, Sheppard and Beaumont JJ), the Full Court considered a conclusion by the majority of the Tribunal that the sub-paragraph 43(1)(c)(ii) required that:

"The next question to be asked is whether the disclosure of the

information could reasonably be expected to produce certain

consequences. This does not mean that those consequences must be

regarded as reasonable from a public interest point of view. It means

whether it is more probable than not, looked at from an objective point

of view, that the consequences will flow. This approach was broadly

adopted by the Tribunal in Re Actors' Equity Association of Australia

and Australian Broadcasting Tribunal (1985) 3 AAR 1" (pages 105-106)

29. Bowen CJ and Beaumont J said in their joint judgement:

"It was submitted on behalf of the applicants that the majority of the

Tribunal erred both in the construction of s 43(1)(c)(ii) and in the

failure to hold that provision to be applicable in the present

circumstances. In aid of the submission, reference was made to some

observations of Woodward J as to the meaning of a similar provision, s

37(1) of the Act, in News Corporation Ltd v National Companies and

Securities Commission [1984] FCA 400; (1984) 57 ALR 550 at 561-2: 'I think that the

words "would, or could reasonably be expected to ... prejudice" mean

more than "would or might prejudice". A reasonable expectation of an

event requires more than a possibility, risk or chance of the event

occurring. On the other hand, if the legislature had required a

probability of prejudice it could easily have said so. In my view it is

reasonable to expect an event to occur if there is about an even chance

of its happening and, without attempting to suggest words alternative to

those chosen by the draftsman, it is in that general sense that the

phrase should be read.'

In our opinion, in the present context, the words 'could reasonably be

expected to prejudice the future supply of information' were intended to

receive their ordinary meaning. That is to say, they require a judgment

to be made by the decision-maker as to whether it is reasonable, as

distinct from something that is irrational, absurd or ridiculous, to

expect that those who would otherwise supply information of the

prescribed kind to the Commonwealth or any agency would decline to do so

if the document in question were disclosed under the Act. It is

undesirable to attempt any paraphrase of these words. In particular, it

is undesirable to consider the operation of the provision in terms of

probabilities or possibilities or the like. To construe s 43(1)(c)(ii)

as depending in its application upon the occurrence of certain events in

terms of any specific degree of likelihood or probability is, in our

view, to place an unwarranted gloss upon the relatively plain words of

the Act. It is preferable to confine the inquiry to whether the

expectation claimed was reasonably based (see Kioa v Minister for

Immigration and Ethnic Affairs [1985] HCA 81; (1985) 62 ALR 321 per Gibbs CJ and Mason

J." (page 106)

30. Sheppard J placed greater emphasis upon the meaning of the word "expect" than on the word "reasonably" for he did not

"... feel able to derive from the presence of the word 'reasonably' in

the relevant expression a great deal of assistance. The difficulty is

to give full weight to the meaning of the word 'expected'. It is only

then that one can turn one's mind to the question of the significance of

the qualification of it by the word 'reasonably'. The words are

expressed in the passive voice - 'could reasonably be expected'. What

is required is the decision-maker act reasonably. For the document to

be exempt his conduct must be taken to be that of the reasonable man.

But then comes the difficulty. So acting, the decision-maker must

expect that disclosure of the document could prejudice the future supply

of information. In my opinion he will not be justified in claiming

exemption unless, at the time the decision is made, he has real and

substantial grounds for thinking that the production of the document

could prejudice that supply. But, stringent though that test may be, it

does not go so far as to require the decision-maker to be satisfied upon

a balance of probabilities that the production of the document will in

fact prejudice the future supply of information." (pages 111-112)

31. Adopting a similar approach, I will consider the meaning of the word "regard". The word has a wide variety of meanings in both the Shorter Oxford Dictionary and the Macquarie Dictionary but, in the context of section 22, it would seem to be used in the sense of "To consider, look on, as being something" (Shorter Oxford Dictionary) or "to take into account, consider" (Macquarie Dictionary). There is nothing in the Act to suggest that anything other than these ordinary meanings should be attributed to the word "regard".

32. Returning to the expression "would reasonably be regarded" as it appears in sub-section 22(1) and having regard to Cockcroft's case, it seems to me that I must consider whether disclosure of certain information might reasonably, as opposed to irrationally or absurdly, be considered or looked on as irrelevant to the request for access made under the Act.

33. Before turning to RIDA's request, I should consider briefly the manner in which the request is to be interpreted. The only provisions relating to the form and content of the request are found in section 15. As to the information it must contain, paragraph 15(2)(b) provides that the request must "provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minster, to identify it". The paragraph recognises the difficulties which often face a person, who may know very little about the administration of government, in describing documents with great exactitude. Consequently, it does not require precise descriptions. It also recognises that there are different levels of knowledge within an agency about particular subject matters and so links the degree of information required to be given with a "responsible officer". Although it is not necessary to decide what qualities are necessary in a "responsible officer", I have, for the purpose of these proceedings, taken him or her to be a person with knowledge of the subject area indicated by the request.

34. These matters are relevant in shedding some light on the way in which sub-paragraph 22(1)(a)(ii) should be applied. As section 15 gives an applicatant a broad indication only of how he or she may frame a request and as the documents requested may be described in broad terms also, it follows that a request cannot be interpreted with the same degree of precision as one would approach a piece of legislation or even a set of pleadings. It is neither legislation nor pleadings and has not necessarily been drafted with the same eye to detail.

35. In determining what is relevant to the request, regard must first be had to the words of the request. I have already set them out at paragraph 3 above. The request is clearly seeking access to documents relating to its selection. The "subsequent correspondence" and the like which it goes on to specify does not refer to any matter in particular but, on the face of the request, it would seem that the words "subsequent correspondence, telephone notations, notes or memorandums to or from third parties" should be read back as referring to those documents which came into existence subsequent to RIDA's selection for a grant.

36. The request cannot be considered solely in isolation but must be considered in the context in which it is made. Part of that context is formed by the events leading to the request. In this case, those events would include both the original selection process and the cancellation of the grant. RIDA has been given documents relating to both matters in response to its request for documents relating to its original selection and to subsequent correspondence. Although it is not necessary to reach any decision on this aspect, it would seem appropriate that documents relating to the cancellation of the grant have also been considered as coming within the terms of the request. Those documents relating to cancellation clearly come within the "subsequent correspondence" requested and also clearly refer and relate to the original selection of RIDA even though they were not in existence and played no part in the original selection process. They are, therefore, relevant to the request.

37. Part of the context in which the request has been made is the selection process under the LEEP scheme. That must also be taken into account in assessing what is relevant to the request and that is so whether or not the person requesting documents under the Act is aware of the processes or not. In this case, I have already found that various applicants were not ranked but that each was ranked against the selection criteria alone (see paragraph 9 above). Looking, then, at the request solely in light of the selection process, information relating to other applicants, whether in particular, general or statistical terms is not necessarily relevant to the original selection of RIDA.

38. Finally, I must stand back and take an overall view of the request and the context in which it is made bearing in mind that those making requests under the Act cannot necessarily be expected to have an intimate knowledge of the subject matter of the documents they seek or of the workings of government and also bearing in mind what Mr Olsson submits was intended to be covered by the request. Doing that, and looking at the matters I have set out in the preceding paragraphs, I consider that the material in documents 1-4 to which RIDA has been refused access is not relevant to its request. The request relates to its selection and to documents following that selection. It is not concerned on its face with the selection of others and, when viewed against the background of the LEEP scheme, the selection or rejection of other applicants is not relevant to its selection. I have also considered whether it is possible to make a copy of the document with the irrelevant material deleted and I have decided that it is possible. I have also decided that it is reasonably practicable for the Department to do so within the meaning of paragraph 22(1)(c) of the Act.

39. Document 6 is described as a letter from Mr Sciacca to the Minister and as comprising his personal views as to the process involved in awarding the grant to RIDA and as to the local situation. It also contains his personal views as to the need for wider consultation in the awarding of future grants. Document 7 is a Departmental briefing for the Minister and access has been refused to one point in a paragraph on the basis that it is a commentary on document 6. Document 8, which is a letter from the Minister to Mr Sciacca also contains two paragraphs to which access has been excluded on the basis that it is a response to document 6.

40. Ms Atkinson based her submissions that the letter is exempt, either in whole or in part, on three sections of the Act. They were sections 40, 41 and 22 and I will deal with each in turn.

41. Ms Atkinson's first submission was to the effect that the letter contained personal information and so was totally exempt pursuant to sub-section 41(1). That sub-section provides that

"A document is an exempt document if its disclosure under this Act would

involve the unreasonable disclosure of personal information about any

person (including a deceased person)."

The term "personal information" is defined in sub-section 4(1) to mean

"... information or an opinion (including information forming part of a

database), whether true or not, and whether recorded in a material form

or not, about an individual whose identity is apparent, or can

reasonably be ascertained, from the information or opinion."

42. The letter contains three types of information. The first concerns Mr Sciacca's opinions about certain processes involved in the administration of the LEEP scheme. The second concerns Mrs Sciacca's opinions about a certain person or certain persons. The third concerns his opinions generally in relation to consultation. I will consider each type of information in turn.

43. With regard to the first type of information, the fact that the contents of the letter contain Mr Sciacca's opinion about certain matters including the processes involved in the LEEP scheme, is not enough in itself to bring the contents of the letter within the term "personal information". The opinion must be "about an individual" if it is to come within that term on the basis that it is an opinion. In so far as I am considering the first aspect of the letter, Mr Sciacca's opinions about certain matters are not opinions about an individual and so cannot be exempt pursuant to sub-section 41 on that basis.

44. I have also considered whether the content of Mr Sciacca's opinions can be regarded as personal information in the sense that disclosure of the content would disclose information about Mr Sciacca himself. That information would presumably be about his views. I have decided that I do not need to decide the point finally one way or the other for, even if I were to decide that this amounts to personal information, I have decided that its disclosure would not amount to an unreasonable disclosure of the personal information about Mr Sciacca. I will deal further with this aspect at paragraph 52 below.

45. Mr Sciacca's letter also contains certain other opinions which may be described as being about a person or persons and this is the second aspect of the letter to which I referred in paragraph 42 above. While this aspect was not argued during the hearing, those opinions do come within the meaning of "personal information". As the request for access to the documents was made by RIDA and not by that person or those persons, sub-section 41(2), which provides that

"... the provisions of subsection (1) do not have effect in relation to

a request by a person for access to a document by reason only of the

inclusion in the document of matter relating to that person.",

46. Having decided that the contents in the first aspect may be, and the contents of the second aspect are, personal information I must now consider what amounts to an unreasonable disclosure in the terms of section 41. This has been considered by both the Tribunal and the Federal Court prior to the amendment of the Act in 1991 (see the Freedom of Information Amendment Act 1991). The amending legislation did not affect the meaning to be attributed to the words "unreasonable disclosure" and so those earlier cases are still relevant. This was a conclusion reached also by the Tribunal in Zalcberg and Australian and Overseas Telecommunications Corporation (unreported, 12 June, 1992, Decision No.8015, Senior Member Gibbs, Mr Brewer and Ms Rodopoulos (Members)).

47. In Wiseman v The Commonwealth (unreported, 24 October, 1989, Decision No.637, Sheppard, Beaumont and Pincus JJ), the Full Court of the Federal Court said that "whether or not disclosure would be unreasonable is a question of fact and degree which calls for a balancing of all the legitimate interests involved". A similar view had been expressed earlier by Deputy President Hall in Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257 when he said:

"51. ... (I)t is not every document, the disclosure of which would

involve the disclosure of information relating to the personal affairs

of a person, that is exempt from disclosure under the Act. Exemption is

only attracted if the disclosure would involve the unreasonable

disclosure of information relating to those affairs. Whether a

disclosure is 'unreasonable' requires, in my view, a consideration of

all the circumstances, including the nature of the information that

would be disclosed, the circumstances in which the information was

obtained, the likelihood of the information being information that the

person concerned would not wish to have disclosed without consent, and

whether the information has any current relevance. Plainly enough what

s41 seeks to do is to provide a ground for preventing unreasonable

invasion of the privacy of third parties.

52. However, consistently with the stated object of the Act (see s3),

it is also necessary in my view to take into consideration the public

interest recognized by the Act in the disclosure of information in

documentary form in the possession of an agency and to weigh that

interest in the balance against the public interest in protecting the

personal privacy of a third party whose personal affairs may be

unreasonably disclosed by granting access to the document" (page N259).

48. In the case of Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 13 AAR 261 (Lockhart, Jenkinson and Heerey JJ), Lockhart J said:

"This is not an appropriate case in which to examine definitively the

circumstances that may constitute 'the unreasonable disclosure of

information' relating to a person's 'personal affairs' because the

argument before us proceeded on the limited basis outlined previously.

It is sufficient for present purposes to say that 'every person' has a

'legally enforceable right to obtain access' to documents under the FOI

Act (s11). There is no requirement that the person seeking access have

a proprietary or any other interest in documents or the information

contained in them. The object of the Act, as expressed by s3, is to

give the 'Australian community' the right of access to information in

the possession of the Australian Government. What is 'unreasonable'

disclosure of information for purposes of s41(1) must have as its core,

public interest considerations. The exemptions necessary for the

protection of 'personal affairs' (s41) and 'business or professional

affairs' (s43) are themselves, in my opinion, public interest

considerations. That is to say, it is not in the public interest that

the personal or business or professional affairs of persons are

necessarily to be disclosed on applications for access to documents.

The exemption from disclosure of such information is not to protect

private rights, rather it is in furtherance of the public interest that

information of this kind is excepted from the general right of public

access, provided the other conditions mentioned in ss41 and 43 are

satisfied. An examination of the other provisions of Pt IV of the Act

concerning exempt documents confirms this approach.

Before parting from the case there is a final observation I wish to

make. The FOI Act is, as its preamble states, 'an Act to give to

members of the public rights of access to official documents of the

government of the Commonwealth and of its agencies'. The object of the

Act is stated in s3 as being to enable Australians to have access, as

far as is possible, to information in the possession of the Federal

Government by making available to the public, information about the

operations of Departments of the Commonwealth and its public authorities

and by creating a general right of access to information in documentary

form in the possession of ministers, departments and public authorities.

But, as s3 itself recognises, there are limitations upon these rights of

the Australian community which are expressed as being 'necessary for the

protection of essential public interests and the private and business

affairs of persons in respect of whom information is collected and held

by departments and public authorities'" (page 270).

49. In considering whether disclosure is unreasonable, it would seem that reference should not be made to a person's interest in obtaining access under the Act. This would seem to be inherent in the passage from the judgement of Jenkinson J in Colakovski's case when he said:

"no provision is made in the Act for restricting dissemination of

information contained in a document to which access is granted. I say

nothing as to whether in this case the use of such a provisions, if it

had existed, might have been appropriate. But is it not difficult to

imagine circumstances in which the recipient of telephone calls of the

kind made in this case, would be thought to have a strong moral claim to

access to information about the caller's personal affairs which it would

be unreasonable to disclose to other members of what s3 of the Act calls

'the Australian community'. But nothing in the Act except s91(2)

qualifies the recipient's freedom to disseminate throughout the

community information contained in a document to which he has been

granted access" (page 272).

50. Since Colakovski's case was decided, sub-section 11(2) has been introduced into the Act and underlines that a person's interest in obtaining access is not relevant. That sub-section provides:

"(2) Subject to this Act, a person's right of access is not affected by:

(a) any reasons the person gives for seeking access; or

(b) the agency's or Minister's belief as to what are his or her reasons

for seeking access".

51. Mr Sciacca was consulted as to the possible release of his letter under the Act and resisted its release on the basis that it was private correspondence between himself and the Minister and contained personal and private policy advice (Annexure "A" to affidavit of Mr Webb sworn on 1 February, 1993).

52. The opinions expressed by Mr Sciacca about certain processes involved in the administration of the LEEP scheme (i.e. the first type of information) are clearly to do with the affairs of government and, in particular, with the affairs of the LEEP scheme which is a scheme funded by public money. Those views still have current relevance in that the scheme still operates and in that RIDA's grant has been cancelled. That is so even though it is apparent from the facts that I have already found, that Mr Sciacca's letter played no part in the final decision to cancel the grant. The Department made its own independent investigations of the circumstances surrounding the grant and based its decision on the basis of those investigations. Its concerns had been raised by people or organisations, including Mr Sciacca, outside the Department and outside RIDA. His letter expressing his concerns actually post dates those written by the Redland Shire Council and the Russell Island Progress Association. The contents of those letters have already been released under the Act. When all of these factors are taken into account, I find that the balance lies in its not being unreasonable to release information, which may possibly, on a broad interpretation of section 41, be described as personal information but which, although not the reason for making a decision under the LEEP scheme, pertains to the operation of that publicly funded scheme generally and to its particular operation in relation to RIDA.

53. The second type of information in Mr Sciacca's letter relates to his opinions about a certain person or persons. This aspect has caused me more difficulty. When considering whether or not access to documents would amount to an unreasonable disclosure of a person's personal affairs, I am considering disclosure under the Act. Under the Act, the interests of the person making the request are not relevant and so have no relevance in deciding what would be unreasonable disclosure. Having examined the material in Mr Sciacca's letter and having considered the matters to which it relates, I have decided that to give access to it under the Act would be an unreasonable disclosure of a person's personal affairs. The opinion expressed played no part in the selection or subsequent cancellation of the grant and have no relevance to the LEEP scheme generally. They relate to the person or persons concerned. It is not likely that he, she or they would, without his, her or their consent, want the views to be expressed to the world at large, which is the effect of access being granted under the Act. It is likely that he, she or they might want to balance those opinions with his, her or their own views if those opinions were to be released. There is no provision for such a balance to be struck under the Act when considering section 41. For these reasons, I have decided that the fourth paragraph of the letter commencing with the word "To" and ending "live" is exempt pursuant to section 41 of the Act.

54. That brings me to the submissions that Mr Sciacca's letter is exempt under the provisions of paragraph 40(1)(d) which provides that:

"(1) Subject to subsection (2), a document is an exempt document if its

disclosure under this Act would, or could reasonably be expected to:

(d) have a substantial adverse effect on the proper and efficient

conduct of the operations of an agency;"

"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."

56. Mr Olsson argued strongly that release of the document is in the public interest but I do not need to consider his argument unless the document is exempt under the section. In support of her argument that it is so exempt, Ms Atkinson relied on the evidence of Mr Webb. He said in his affidavit that it is his opinion that, if document 6 were to be disclosed to RIDA, "that disclosure ... (would) in future inhibit or obstruct the free flow of information from Members of Parliament and Senators as to the performance of government programmes." (Affidavit, paragraph 21) Mr Webb repeated his views in giving oral evidence. He said that it was the practice of Members of Parliament to write in forthright terms to the Minister about issues in which the Minister and/or his Department are concerned. In most instances, the letter will be forwarded to the Department. If they were to be inhibited in expressing themselves in such forthright terms, the Minister would not have the benefit of their views and it is important that he have them among the whole array of community views that may be relevant. If the views were to be expressed to him orally and not in writing, those views will be expressed less directly to the Minister's Department.

57. I considered what was meant by the words "substantial adverse effect" in the context of paragraph 40(1)(c) in Re Booker and Department of Social Security, unreported, 13 September, 1990, Decision No.6189). I refer to the following passage only as a summary of the cases which are relevant in interpreting those words:

"... The phrase 'substantial adverse effect' and in particular the word

'substantial', has (sic) 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 CJ and Deane J considered the

words 'substantial loss or damage'. Bowen CJ 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 (19840 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.'

Deane J at page 382 said

'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 (sic)(of)

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. Deane J gave detailed 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, real

or of substance and not insubstantial or nominal" appear to me to be

appropriate to most 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."

58. I do not know of any reason why I should adopt a different view in interpreting paragraph 40(1)(d) from that adopted in relation to paragraph 40(1)(c). On that basis, I must be satisfied that release of the documents would have a substantial adverse effect on the Department's operations in the sense that adverse effect would be real or of substance and not insubstantial or nominal.

59. While I do not question that it is Mr Webb's opinion that release of document 6 and portions of documents 7 and 8 will obstruct the free flow of information from Members of Parliament and Senators as to the performance of government programmes, I am not persuaded that it will have that effect. Mr Sciacca has not raised this as a concern in his letter annexed to Mr Webb's affidavit. It has not been raised as a concern in relation to the letters which have been written by the Russell Island Progress Association and the Redland Shire Council. The performance of government programmes is assessed in many different ways and information is gathered from many different sources. Such assessment is necessary for the efficient management of these programmes and so for the proper and efficient conduct of the operations of the Department undergoing those programmes. Two of the sources of information which may be used in such assessments are represented here and they are Members of Parliament and Senators on the one hand and the general public on the other. No evidence has been led to support a claim that members of the public will be more reticent if their comments are released under the Act. I do not have any evidence that Members of Parliament and Senators are any less robust than members of the general public. Even if they were to become more reticent in expressing their views on paper, I am not satisfied that they would not use other more indirect means to give the Minister, and hence his Department, information relating to government programmes. Those more indirect means may not be quite as satisfactory or quite as efficient as the written word may be but I cannot go so far as to say that release of those parts of document 6 which I have not already found to be exempt and documents 7 and 8 would lead to an effect which would be adverse in any real or significant way. Consequently, I do not find them to be exempt pursuant to paragraph 40(1)(d).

60. I will deal next with the submission that parts of each of the documents 6-8 should be regarded as exempt on the basis of sub-paragraph 22(1)(a)(ii). As I have already found, the scope of RIDA's request is fairly narrow in its ambit. It is limited to matters related to the selection of RIDA for a grant and the subsequent cancellation of that grant as well as all documents relating to those matters. I do not consider that it is wide enough to include documents relating to views as to what should happen in the future regarding consultation generally when those views have no connection at all with the particular grant made to RIDA. For these reasons, I find that the material in the penultimate paragraph of Mr Sciacca's letter dated 15 October, 1992 would reasonably be regarded as irrelevant to the request within the meaning of sub-paragraph 22(1)(a)(ii).

61. On the same basis, I find that the portion of document 7 which is a commentary on this part of document 6 is also irrelevant to the request. That portion of document 7 is that portion of the document to which access has already been denied. Similarly, I find that the last two paragraphs of document 8 are also irrelevant to the request as they are solely the Minister's response to Mr Sciacca on the wider issues of consultation. Consequently, RIDA is not entitled to these portions of documents 7 and 8 as the delegate has already decided. Documents 9-10

62. Document 9 is described as a formal request written by Mr Aylott of the Department to the Attorney-General's Department for advice on the right of the Department to terminate the LEEP agreement between RIDA and the Department. Document 10 is described as legal advice on that issue. It is claimed to be exempt pursuant to the provisions of section 42 of the Act. Only sub-section 42(1) is relevant and that provides:

"(1) A document is an exempt document if it is of such a nature that it

would be privileged from production in legal proceedings on the ground

of legal professional privilege."

63. As Deane J said in Attorney-General (NT) v Maurice and Others [1986] HCA 80; (1986) 161 CLR 475 at 490-491,

"It is a substantive general principle of the common law and not a mere

rule of evidence that, subject to defined qualifications and exceptions,

a person is entitled preserve the confidentiality of confidential

statements and other materials which have been made or brought into

existence for the sole purpose of his or her seeking or being furnished

with legal advice by a practising lawyer or for the sole purpose of

preparing for existing or contemplated judicial or quasi-judicial

proceedings: see generally, Baker v. Campbell [1983] HCA 39; (1983) 153 CLR 52. That

general principle is of great importance to the protection and

preservation of the rights, dignity and freedom of the ordinary citizen

under the law and to the administration of justice and law in that it

advances and safeguards the availability of full and unreserved

communication between the citizen and his or her lawyer and in that it

is a precondition of the informed and competent representation of the

interests of the ordinary person before the courts and tribunals of the

land. That being so, it is not to be sacrificed even to promote the

search for justice or truth in the individual case or matter and extends

to protect the citizen from compulsory disclosure of protected

communications or materials to any court or to any tribunal or person

with authority to require the giving of information or the production of

documents or other materials: see Pearse v. Pearse (1846) 1 De G and Sm

12, at pages 28-29 [1846] EngR 1195; (63 ER 950, at page 957); Baker v. Campbell at pages

115-116. The right of confidentiality which the principle enshrines has

recently, and correctly, been described in the European Court of Justice

as a "practical guarantee" and "a necessary corollary" of "fundamental,

constitutional or human rights": see AM and S Europe Ltd v. Commission

of the European Communities (1983) 1 QB 878, at pages 941, 947; Baker v.

Campbell at page 85. Indeed, the plain basis of the decision of the

majority of this Court in Baker v. Campbell was the acceptance of the

principle as a fundamental principle of our judicial system: see Murphy

J. at page 88; Wilson at pages 95-96; Deane J. at pages 116-117; Dawson

J. at pages 131-132. Like other traditional common law rights, it is

not to be abolished or cut down otherwise than by clear statutory

provision. Nor should it be narrowly construed or artificially

confined."

64. This passage, then, describes what is meant by the term "legal professional privilege" when it is used in sub-section 42(1). At one time, there was some debate as to whether the privilege extended to advice sought from and given by a legal officer employed by the government. That debate was resolved by the High Court in Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 71 ALR 673 (Mason CJ, Wilson, Brennan, Deane and Dawson JJ). The High Court decided that there was no reason for the doctrine of legal professional privilege not to apply provided the professional relationship between the legal officer and the person or agency seeking advice has necessary quality of independence notwithstanding the fact that both are employed by the government.

65. In this case, I am satisfied that the letter written by Mr Aylott was written solely for the purpose of obtaining legal advice from the Attorney-General's Department on the Department's right to terminate the LEEP agreement it had entered with RIDA. I am also satisfied that the letter written by Ms Richardson, a principal legal officer with the Attorney-General's Department, to Mr Aylott was brought into existence for the sole purpose of giving the legal advice sought. Finally, I am satisfied, by virtue of the fact that the advice has been sought from a legal officer who is in the Attorney-General's Department and so at arm's length from Mr Aylott, that there is the degree of independence in their relationship necessary to found a claim for legal professional privilege. Finally, it follows that I find that both documents, 9 and 10, are exempt pursuant to the provisions of sub-section 42(1) of the Act.

66. For the reasons I have given, I vary the decision of a delegate of the Secretary dated 4 March, 1993 affirming a decision of another delegate dated 8 February, 1993 by

1. setting aside that part of the decision refusing access to Attachment

E to the Department briefing to the Minister dated 3 September, 1992

(i.e. document 5) and substituting a decision that the applicant be

granted access to that document under the Act;

2. setting aside that part of the decision refusing access to the letter

dated 15 October, 1992 from Mr Sciacca to the Minister for Primary

Industries and Energy (document 6) and substituting a decision that the

applicant be granted access to all of that document other than:

(1) the fourth paragraph commencing with the word "To"; and

(2) the penultimate paragraph commencing with the word "In"; and

3. otherwise affirming the decision under review.