Freedom of Information Act 1982, ss.11, 15, 33(1)(a)(iii), 36, 37 (1)(b), 41, 45

Sankey v Whitlam (1978) 142 C.L.R. 1

Re Witheford and Director-General of Foreign Affairs (1983) 5 ALD 534

Re Waterford and Department of Treasury (No. 2), No. A83/52

Re Murtagh and Commissioner of Taxation, No. V83/236

Re News Corporation Ltd and National Companies, No. N83/543

Re Ward and Department of Industry and Commerce, No. V83/261

1. The Tribunal varies the decision under review by deciding that only the following claims of exemption are justified:-

2 and the first sentence in

paragraph 3.

(ii)Folio 134 : Lines 3, 4, 5 and 6 and the

name, address and phone number

appearing beneath the signature

of the person who signed the

document.

(iii) Folios 140-149A: The first and second sentences

of para 5.

The first sentence of para 8.

(iv) Folio 150 : The first and second sentences.

2. The Tribunal reserves liberty to either party to apply.

1. This is an application by John Chandra, formerly known as Vinesh Raj, (see Exhibit A), for a review of a decision by the Department of Immigration and Ethnic Affairs (the agency) refusing access to a number of documents sought under the Freedom of Information Act 1982 (the Act).

2. On 10 October 1983 the applicant lodged with the Department a request for "the complete file and all other documents in connection with my deportation ..." (T3/12). On 10 December 1983 the agency replied to this request granting access either in whole or in part to some documents held on the applicant's personal file (N79/403754) and refusing access to a large number of other documents. On 13 December 1983 the applicant requested internal review of this decision under s.54 of the Act. That review resulted in a large number of previously withheld folios being released in whole or in part but with claims to exemptions being maintained in respect of others.

3. In the course of, or shortly after, the hearing of this matter a number of other documents were released by the respondent in whole or in part. These were primarily documents, or parts of documents, access to which had been refused pursuant to s.41 of the Act on the ground that their disclosure would involve the unreasonable disclosure of information relating to the affairs of another person, namely Ms Angina Pal, who was said to be the applicant's de facto wife. They were released after Mr G. Miles of Counsel, who appeared for the applicant, informed the Tribunal that Mr Chandra's solicitor also acted for Ms Pal and that he was instructed that Ms Pal had no objection to the release to the applicant of any documents containing information relating to her personal affairs.

4. In addition, in respect of certain documents the only portions of which that had been withheld were paragraphs relating to persons other than the applicant (as with folio 89 - a telex containing 3 separate messages only one part of which related to the applicant), Counsel for the applicant withdrew his client's request for access once it became clear that the withheld information was irrelevant so far as the applicant was concerned.

5. Consequently, by one means or another, the number of documents for which exemption is still claimed has been greatly reduced. In fact there are only five folios in respect of which exemption is claimed for the entire document (folios 64, 65, 107, 134 and 150). With respect to the remaining 13 folios, the claims for exemption that are still maintained relate either to paragraphs, single sentences or names that have been deleted from documents to which access has otherwise been granted (folios 100, 104, 105, 136, 137, 140, 142, 143, 145, 147, 148, 149A and 196). Even with these folios, a number of them are actually duplicates (folios 140-149A - see later).

6. Before turning to the detail of these claims of exemption and the evidence given in support of them by Mr W.J. Perry, a Senior Assistant Director of Operations in the Department of Immigration and Ethnic Affairs, it will be convenient if I refer to the evidence given by the applicant as to the background to his request for access.

7. Mr Chandra said that he was born in Fiji on 24 May 1950 and that he was of the Indian race. He acknowledged having a criminal record in Fiji, which included a gaol sentence of 12 months in the late 1960s. He first came to Australia in December 1972. It is said by the Department that he was a stowaway on the vessel "Himalaya". Mr Chandra neither admitted nor denied that allegation. At the time of his departure from Fiji he was on bail to appear at the Magistrate's Court in Suva on charges of forgery.

8. Mr Chandra commenced to live in a de facto relationship with Ms Pal in Australia in about 1973. However, he was apprehended by Police in or about June 1974 and was deported to Fiji as a prohibited immigrant in the following September. He appeared before the Magistrate's Court in Suva shortly thereafter, when the forgery charges were dismissed but he was convicted and fined $150 on a charge of absconding bail.

9. In late 1974 or early 1975 he returned to Australia. It is alleged by the Department that he entered the country illegally. After about five months Mr Chandra located Ms Pal and resumed living with her in a de facto relationship. He claimed that, essentially, he and Ms Pal had lived together as man and wife since that time. He said that there was a child of the relationship born in Western Australia on 5 April 1977.

10. Mr Chandra admitted that he is a prohibited immigrant. There is a deportation order that was signed on 1 July 1979 awaiting enforcement against him. Both Mr Chandra and Ms Pal have sought permanent resident status under the general amnesty in respect of illegal immigrants announced by the Commonwealth Government in 1980. Mr Chandra's application was rejected on 14 September 1983. Ms Pal's application is still under consideration. Mr Chandra said, however, that he was still pursuing his application for permanent resident status through the Human Rights Commission, the Commonwealth Ombudsman, the Minister for Immigration and other Members of Parliament.

11. The applicant said that he was particularly concerned about allegations on the Departmental file that might have been made about him by a Mr Sujendra Sundar, a Fijian now resident in Australia who had made threats against him, and by Ms Pal's mother, Mrs Vinesh Jorgenson, also now a resident of Australia, who did not like her daughter living with him. He claimed that in the documents to which access had already been granted, there were a number of serious and damaging allegations against him including allegations of criminal activities in Australia and New Zealand which were totally untrue. He was concerned that the documents or parts of documents that had been withheld may contain similar false and damaging allegations. He said that he wished to have access to all the documents on his file so that he could present his side of the story for reconsideration by the Minister.

12. A person wishing to obtain access to a document of an agency or an official document of a Minister under the Act is not required to give any reason for the request (see s.15). The Act itself confers a legally enforceable right to access (see s.11) subject, of course, to the other provisions of the Act, particularly of Part IV concerning exemptions.

13. In the present case, as frequently occurs in applications under the Act, the applicant's evidence was led, not so much to justify his request, as to add substance to the considerations of public interest required to be weighed in the balance in relation to those claims of exemption having a public interest content.

14. Notwithstanding that the applicant is a prohibited immigrant against whom a deportation order has been made, it was not disputed that he is nevertheless entitled to request access to documents under the Act. (cf. Re Ward and Department of Industry and Commerce No.V83/261, decision handed down 16 December 1983). The right to access created by s.11 of the Act is conferred, without qualification, on "every person". The right so created may be contrasted with the entitlement conferred under s.48 of the Act (see Part V - Amendment of Personal Records) where a request for amendment of a document to which access has been provided under the Act may only be made by "a person ... who is an Australian citizen, or whose continued presence in Australia is not subject to any limitation as to time imposed by law ....".

15. I turn then to the claims of exemption that fall to be decided by the Tribunal. I will refer to Mr Perry's evidence, as appropriate, in relation to each claim. The references to "the Schedule" are to the schedule of documents annexed as annexure "WJP3" to the affidavit of Mr Perry dated 21 May 1984 (Exhibit 1).

These two documents were described in the Schedule as follows:

Folio 64: "Document written and received in

confidence from the Fijian Police Force dated 4

December 1972 regarding the applicant's movements

in December 1972."

Folio 65: "Document written by the NSW Police

referring to the confidential Fijian document

above."

The whole of each of these documents was claimed to be exempt pursuant to s.33(1)(a)(iii) and s.45 of the Act. Those sections, so far as relevant, provide as follows:

"33(1) A document is an exempt document if the

disclosure of the document under this Act would be

contrary to the public interest for the reason that

the disclosure -

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

cause damage to -

(i) the security of the Commonwealth;

(ii) the defence of the Commonwealth; or

(iii)the international relations of the

Commonwealth; or

(b) ... .

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

disclosure under the Act would constitute a breach

of confidence."

16. Folio 64 was actually a letter written on behalf of the Commissioner of Police in Fiji by the Officer Commanding, Criminal Investigation Department, to the New South Wales Commissioner of Police in relation to the applicant's movements in Fiji in December 1972. It was not addressed to or received by the agency direct from the Fijian Police as the Schedule tended to imply. The document has been stamped "IN CONFIDENCE". Folio 65 was a covering letter from the Assistant Commissioner of Police (NSW) addressed to the Superintendent in Charge, Scientific, Technical and Other Services Group, Criminal Investigation Branch. It forwarded for information and necessary attention a copy of the letter from the Commissioner of Police in Fiji. How either letter came into the possession of the agency was not explained in evidence and does not appear from the documents themselves.

(a) Section 33(1)(a)(iii) - Damage to international relations

17. Mr Perry said that, in his view, disclosure of either of these documents would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth with Fiji. He pointed out that the information contained in the letter had been provided in confidence; that it would be a breach of that confidence if the document was now disclosed to the applicant; and that, in his opinion, if the document were now disclosed, that disclosure could reasonably be expected to cause damage to the goodwill that the Australian Government relies upon in order to secure the type of information contained in the letter from foreign Governments. The same considerations also applied, in his view, to the covering letter dated 15 December 1972 (Folio 65), because the heading of that letter referred to the substance of the confidential communication from the Commissioner of Police in Fiji.

18. I cannot accept that disclosure of the documents now under consideration would or could reasonably be expected to cause such damage. There are a number of reasons for that conclusion. Firstly, the age of the documents. It is now nearly 12 years since the letters were written. They each deal with events long past and having no present relevance. Secondly, the parties to the correspondence. Neither letter was a high-level inter-governmental communication. Although folio 64 was addressed to the Commissioner of Police in New South Wales, folio 65 makes it fairly clear that it was seen as essentially a communication of information through proper channels from the Criminal Investigation Department in Fiji to the equivalent Branch in the New South Wales Police Force. Thirdly, the subject matter. The letter dealt with a routine police matter in a routine way. There are no matters disclosed regarding confidential Police procedures. It does not deal with sensitive international issues of State.

19. Although written "in confidence" the reasons for that confidentiality at the time when the letter was written, have long since ceased to have any continuing significance. There is nothing in the letter that, in my opinion, would be likely to cause any embarrassment to the Fijian Commissioner of Police or to the Fijian Government if it were now disclosed. The letter from the Fijian Police is simply of historical interest at this stage and probably has been of no more than such interest since the applicant was deported to Fiji in September 1974 when the charges of forgery were dismissed and he was convicted of absconding bail. Moreover, it is in my view almost certain that evidence would have been given in open court of the matters canvassed in the letter dated 4 December 1972 both in the proceedings against the applicant in Australia as a prohibited immigrant and in the proceedings in Suva in relation to absconding bail.

20. There was some inconclusive evidence before me concerning attempts that had been made to ascertain, through the Fijian Consulate in Canberra, whether there would be any objection to the release of the letter at this stage (see Exhibit T30). It appeared, however, that no clear answer had been received from the Fijian Government as to its attitude in the matter. 21. Although the claim of exemption was not formally put on this basis, it seemed to me that, in the final analysis, the claim of exemption under s.33(1)(a)(iii) rested on the ground that the letter from the Commissioner of Police in Fiji fell within a class of documents that should be protected from disclosure, namely confidential communications between the Australian and foreign Governments or Australian and foreign Government agencies. As Stephen J. said in Sankey v. Whitlam (1978) 142 CLR 1 at 62-3:- "Those who urge Crown privilege for classes of documents, regardless of particular contents, carry a heavy burden". In my view, however, the question which s.33(1)(a)(iii) requires to be addressed is whether the disclosure of the particular document would be contrary to the public interest for the reason that the disclosure of that document would or could reasonably be expected to cause damage to the international relations of the Commonwealth. For the reasons I have given, I see no reasonable ground for concern that the disclosure of the letter from the Fijian Commissioner of Police at this stage will damage in any respect Australia's international relations with Fiji. In particular I do not believe that disclosure would prejudice the future exchange of information of the type referred to in that letter. In my view, therefore, the disclosure of folio 64 would not be contrary to the public interest within the meaning of s.33(1)(a)(iii) of the Act.

22. As the covering letter dated 15 December 1972 from the Assistant Commissioner of Police in New South Wales (folio 65) reveals nothing other than the subject matter of the letter from the Fijian Police, the disclosure of that letter could not in my view reasonably be expected to cause any damage whatsoever to Australia's international relations. I would therefore reject the claim of exemption in respect of folio 65 insofar as that claim was based on s.33(1)(a)(iii) of the Act.

23. The alternative ground of exemption claimed in respect of folios 64 and 65 was that their disclosure would constitute a breach of confidence. In many respects the arguments presented in support of this claim of exemption overlapped the arguments based on s.33(1)(a)(iii). As already noted, folio 64 was a communication between the Commissioner of Police in Fiji and the Commissioner of Police in Sydney marked "In Confidence". In the absence of any evidence as to how the document came into the possession of the agency, I can only assume that a copy was sent to the agency by the Commissioner of Police in New South Wales because of the possible interest of the agency in the information contained in the letter.

24. Mr Miles sought to suggest in his cross-examination of Mr Perry that as folio 64 was a confidential communication between the Fijian Police and the New South Wales Police, that confidence had already been broken by the New South Wales Police having communicated a copy of the letter to the Department. It was suggested that, in those circumstances, the confidentiality of the document had in any event been lost. In my view, however, it is clear enough from the subject matter of the letter dated 4 December 1972 that the requirement of confidentiality imposed by the Fijian Commissioner of Police in respect of the information conveyed in that letter was not intended to preclude disclosure of the contents to any appropriate law enforcement agency having an interest in the matter. The Department clearly had such an interest. Disclosure of the confidential communication to the agency was not disclosure to the world at large (cf. Sankey v. Whitlam, supra at 64-5 per Stephen J.). In my view, therefore, Mr Perry was correct when he said in his evidence that, at the time when the information was communicated to the Department, it was communicated subject to the confidence reposed in the New South Wales Commissioner of Police by the Commissioner in Fiji . The question remains, however, whether disclosure of the letter by the agency to the applicant at this stage would constitute a breach of confidence.

25. In Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534 at 542, the Tribunal expressed the view that s.45 was not limited to situations where disclosure would amount to an actionable breach of confidence (cf. s.91(1)). It also differentiated between documents which came into existence before the commencement of the Act and those which have come into existence since then. The Tribunal said:

"In respect of documents which came into existence

before the commencement of the FOI Act we consider

that there is a category of confidence that ought

to be respected but which, without seeking to rule

upon the point, may not exist in respect of

documents coming into existence after the

commencement of the Act. This category covers

documents disclosure of which would constitute a

breach of confidence where that confidence was

reposed and received not on the faith of a legal

duty to respect that confidence but on the faith of

a voluntary undertaking or understanding to respect

it either in a specific case or as part of a

tradition of dealing, and where it was so reposed

and received at a time when there was an

expectation that having once been committed to

writing it would not be subjected to disclosure to

the public or to a specific person".

26. Neither Counsel advanced any arguments before the Tribunal as to the scope of s.45 except to adopt what was said in Witheford. In the circumstances, as I have reached a firm conclusion that, even on the broadest construction of s.45, the subject documents are not exempt, I do not need to address the question further.

27. In my view, where, as in this case, there is a communication between law enforcement agencies marked "in confidence" it is necessary to have regard to the substance of the communication and the circumstances in which it was conveyed in order to determine the ambit of the confidentiality sought to be established. Information that, at the time when it was first given and received, was inherently of a confidential nature may not necessarily have been intended to remain confidential for all time.

28. In the present case, the communication can, as I have said, be fairly described as dealing with a routine police matter in a routine way. The confidentiality attached to the communication can plainly be seen as relating to the information conveyed concerning the applicant, not to any broader issues of international crime or international police procedures canvassed in the letter. The information so conveyed, having regard to its nature, was necessarily confidential at the time it was sent. However, once the applicant was apprehended and deported back to Suva where he faced the outstanding charges against him, the purpose for which the cloak of confidentiality had been spread over the communication from the Fijian Police to the New South Wales Police was spent. Matters only suspected in December 1972, were established by further investigations. As I earlier said, evidence in respect of those matters would almost certainly have been given in open court in 1974 in the course of proceedings against the applicant, both in Australia as a prohibited immigrant and in Suva in relation to the charges of forgery and absconding bail.

29. Having regard to the subject matter of, and the circumstances surrounding, the confidential communication from the Commissioner in Fiji and to the events that followed the apprehension and deportation of the applicant in 1974, I cannot accept that any requirement of confidentiality that may have been imposed by the Fijian Commissioner of Police and any implied undertaking to respect that confidentiality that may have been given by the agency on receipt of a copy of the communication from the New South Wales Police, has not long ago ceased to have any continuing relevance. The disclosure of the letter at this stage would not, in my view, constitute a breach of confidence. There is, at this point of time, no reasonably foreseeable detriment, either to the Commissioner of Police in Fiji or to the Commissioner of Police in New South Wales or to the agency that would be likely to flow from such disclosure. In my view, therefore, in respect of both folios 64 and 65, the claim of exemption under s.45 of the Act cannot be sustained.

30. This is the last page of a four page report covering folios 100 to 103, the whole of which was originally claimed to be an exempt document pursuant to s.41 of the Act. That section provides, so far as relevant, as follows:

"41(1) A document is an exempt document if its

disclosure under the Act would involve the

unreasonable disclosure of information relating to

the personal affairs of any person (including a

deceased person)."

31. It was said that the report related to an interview with Ms Angina Pal; that the report related predominantly to her personal affairs with references to her association with the applicant; and that Ms Pal had not consented to the disclosure of that information. At the hearing, it emerged that Ms Pal had obtained access to a copy of this document from her file (V79/31376) and had made a copy available to the applicant. Accordingly, no evidence was called by the respondent in relation to these documents (Transcript 53).

32. At the conclusion of the hearing I directed that the respondent reconsider the position with respect to documents that had been claimed to be exempt on the grounds that disclosure would constitute an unreasonable disclosure of the affairs of Ms Pal. On 7 June 1984 I received an additional schedule of documents to be released to the applicant, either in whole or in part. This schedule indicated that folios 100 to 103 were to be released except for two deletions on folio 100, namely the first sentence in paragraph 2 and the first sentence in paragraph 3. I assume that similar deletions had been made from the copy of the report made available to Ms Pal because the two sentences in question referred to a person other than Ms Pal.

33. The letter dated 7 June 1984 gave no indication as to the basis on which the two sentences are said to be exempt from disclosure. In the circumstances, I have considered whether I should reserve liberty to the parties to apply for the reconvening of the hearing to enable me to hear argument on the point. However, as I am satisfied that both deletions were justified on the ground that the disclosure of those two sentences would disclose the identity of a confidential source of information in relation to the enforcement or administration of the law (s.37(1)(b)), I do not consider that that course would be warranted. I find therefore that the two sentences deleted are exempt from disclosure.

34. These two folios constituted a two page minute dated 2 August 1974 from the Sydney Regional Office (author unknown) to Mr P. Telfer, Residence Control Section of the Department of Immigration and Ethnic Affairs, Canberra. It referred to investigations conducted in relation to Ms Pal. Although access to this document was originally refused on the same basis as the previous report (folios 100 to 103), I am informed that, since the hearing, access has been granted in a form acceptable to the applicant.

35. This was a letter dated 15 August 1974 from the Regional Director of the Department in Sydney to the Australian High Commissioner in Suva relating primarily to the personal affairs of the applicant's brother. The second sentence, however, relates primarily to the applicant.

36. Exemption for the entire letter was claimed pursuant to s.41 of the Act on the ground that "there is no evidence that the applicant's brother knows of the Freedom of Information request nor that he consents to this document being disclosed. Accordingly disclosure in these circumstances is regarded as being unreasonable" (see Schedule).

37. Mr Perry said in his evidence (Transcript 94) that he believed that it would be inappropriate to disclose to Mr Chandra personal matters relating to his brother of the nature referred to in the letter.

38. Subsequent to the hearing, on 17 August 1984, there was lodged with the Tribunal Registry in Melbourne a copy of a letter on a Fijian aerogramme dated 4 June 1984 addressed to "The Freedom of Information Officer, Department of Immigration, Melbourne, Australia" purporting to have been sent from Fiji by Frank Chandra Bansraj of P.O. Box 2 Nausori, Fiji Islands. The signature is indecipherable. The letter bears a handwritten note indicating that Frank Chandra Bansraj was formerly "Kamlesh Chandra". It also carries the endorsement "Hand delivered to the Freedom of Information Unit on 19 June 1984" and a signature "J. Chandra" which appears to be that of the applicant. So far as presently relevant the letter says:

"I authorise you to grant access to Mr John

Chandra, all relevant and pertinent information

relating to myself and in particular folio 107 of

file V80/30280".

39. There was no covering letter of explanation or comment in respect of this letter lodged with the Tribunal and I have received no written submissions from either party in relation to it. If the letter is what it purports to be, then it may overcome the objection taken by the respondent in respect of the release of folio 107. The file number that is quoted does not appear, however, to be correct.

40. I do not regard it as satisfactory that information such as this should be submitted to the Tribunal after the completion of the hearing without some indication whether, in the circumstances, the letter alters the position in any respect. I can only say that, if the letter is accepted by the agency at face value, there is no continuing ground to be found within s.41 of the Act upon which to withhold access to folio 107. If the letter is not accepted by the respondent at face value, and if the applicant wishes to press his claim for access to that folio, it may be necessary to reconvene the hearing to enable me to hear further evidence and argument. I will reserve liberty to apply in that regard.

41. Folio 134 was described in the Schedule as containing a number of names, addresses and phone numbers of people other than the applicant. There is no reference made to the applicant on the document. The names were said to have been gathered in the course of departmental investigations conducted in 1979 in order to locate the applicant. It is not clear to whom the file note was addressed nor by whom it was written. This document was claimed to be exempt pursuant to s.41, (because its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of other persons) and pursuant to s.37(1)(b) of the Act which provides as follows:

"37(1) A document is an exempt document if its

disclosure under the Act would, or could reasonably

be expected to, -

(a) ....

(b) disclose, or enable a person to ascertain the

existence or identity of a confidential source

of information in relation to the enforcement

or administration of the law"

42. It will be convenient if I deal with the s.37(1)(b) claim first. Mr Perry said in his evidence that although there is nothing on folio 134 to indicate that the information contained therein was regarded as being confidential, he had concluded that, in the context of the entire investigation that was then being conducted as to the whereabouts of the applicant, there was an obvious inference that the people listed were concerned in some manner in the investigation or in giving information. Mr Perry said that he was concerned that, if the information was revealed, the persons named would "appear to be persons who have given information with regard to the investigation" (Transcript 76).

43. The document itself gives little or no indication as to the purpose for which it was prepared. In such circumstances, I agree with Mr Perry that it may not be sufficient simply to look at the document in isolation. It has a context within the Departmental file and, in this regard, it must be borne in mind that the applicant has been granted access to the following folio 135 and to a substantial part of folios 136 and 137. Certain portions of those folios are claimed to be exempt. In my view, it is necessary to consider folio 134 in relation to the immediately following folios because of their inter-relation.

44. Folio 135 is a handwritten note of no major significance. However, folio 136 is a draft of a letter from the Regional Director in the Regional Office of the Department in Sydney to the Secretary of the Department in Canberra concerning the applicant and Ms Pal. Folio 137 is a copy of the actual letter dated 18 April 1979. Access was originally granted to both documents subject to deletion of the whole of the first paragraph. It was said in the Schedule that the deleted paragraph:

"records steps taken by the Department to trace the

applicant's whereabouts .... In this report is

included allegations by a woman concerning her

daughter and the applicant and alludes to a number

of people other than the applicant and their

affairs."

The paragraph was said to be exempt pursuant to s.41 on the basis that it would be unreasonable to disclose the information to the applicant as the persons referred to had not given their consent to disclosing their personal affairs to the applicant.

45. After the hearing, however, access was granted by the respondent to the first paragraph subject to deletion of two sentences and a name appearing in lines 13 and 17 of that paragraph. The parts disclosed related primarily to the personal affairs of Ms Pal. The justification for the various deletions from the first paragraph was not explained to me. In the circumstances, I have to assume that the original grounds of exemption are maintained (i.e. s.41). However, as the deletions really raise a claim of exemption under s.37(1)(b) of the kind relied on in respect of folio 134, I would propose to consider the matter in that light.

46. Having regard to the statements made in the Schedule and having regard also to the portions of paragraph 1 of folios 136 and 137 now released to the applicant, I do not believe that the applicant could be in the slightest doubt as to who was the "woman" who made allegations concerning her "daughter" and the applicant. If the woman was regarded as a confidential source of information whose identity needed to be protected, the information already released to the applicant by the respondent has, I am afraid, caused that confidentiality to be lost. In those circumstances the withholding of the name of the informant in lines 13 and 17 is a rather empty gesture at this stage. I am not satisfied that the claim of exemption in respect of the deleted information, whether under s.41 or s.37(1)(b), has been sustained.

47. Insofar, therefore, as folio 134 identifies a woman by name, the disclosure of that part of the document would not disclose the identity of a confidential source of information. Whether the source was confidential at the time the information was first supplied I am unable to say. However, it has ceased to be confidential at this stage. So far as the other names, addresses and telephone numbers appearing on folio 134 are concerned (leaving aside the signature of the person who wrote the note) I am prepared to accept that, in the context in which folio 134 appears on the file, the probabilities are that the other names, addresses and information contained on that folio were prospective sources of information in relation to the applicant and that those sources were likely to be confidential. The disclosure of that part of the document would disclose the identity of these sources. As investigations were then in progress as to the whereabouts of the applicant who was believed to be a prohibited immigrant, I accept that those investigations related to the enforcement or administration of the law and that those other names and addresses are therefore exempt.

48. Having regard to the nature of folio 134 I consider that, for what it may be worth, access could be granted to it, subject to the deletion of the information contained on lines 3, 4, 5 and 6 and to the deletion of the name, address and phone number appearing beneath the signature of the person who prepared the document. Insofar as the document as so amended simply discloses the name of a woman, I do not consider that any claim of exemption under s.41 in respect of that information can be sustained. That disclosure would not in my view involve the unreasonable disclosure of any information relating to the personal affairs of the woman concerned.

49. Turning then to folios 136 and 137, I have already dealt with the deletions in lines 13 and 17 (see para 45) the first of the two sentences deleted, namely the seventh sentence of paragraph 1, contains allegations relating to the personal affairs of the applicant and Ms Pal and a comment on those allegations by the person who wrote the letter. The substance of those allegations (but not the comment) has otherwise been disclosed in those parts of paragraph 1 now released to the applicant. The only respect in which the seventh sentence might be said to relate to the personal affairs of the person who made the allegations is in the reference to the circumstances in which the allegations came to be made. Whilst it would have been useful to have some argument directed to this issue, I can only say that, as at present advised, I am not satisfied that the information truly relates to the personal affairs of the informant. If it does, I do not consider its disclosure would be unreasonable. In addition for the reasons earlier given, I do not consider that a claim of exemption under s.37(1)(b) can be sustained as the source of information is no longer confidential.

50. With respect to the last sentence of paragraph 1, it does disclose information relating to the personal affairs of a person other than the applicant. The sentence can be seen, I think, in two parts the first of which relates to the personal affairs of Ms Pal. In view of her consent to the disclosure of any such information I do not consider that the claim of exemption in respect of that part of the final sentence can be sustained. The second part of the sentence relates to the personal affairs of the applicant. Notwithstanding that a third party is mentioned, I do not think that the statement can fairly be characterised, for that reason alone, as relating to the personal affairs of the third party. However, even if I were wrong in that view I do not consider that, in the context, the disclosure of that information could be said to be an unreasonable disclosure.

51. My reasons for so thinking are that s.41(1) makes it clear that it 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 s.41 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 s.3), it is also necessary in my view to take into consideration the public interest recognised by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.

53. In the present case, insofar as the statement in the second part of the last sentence in paragraph 1 touches upon the personal affairs of a third person, it does not disclose anything done or said by the person. It concerns something allegedly said to or in reference to that person. It relates to something alleged to have occurred some five years ago. The circumstances to which it relates have no continuing relevance. The disclosure of the information can do no harm to the person referred to. It is not, in my view, information of such a kind that the third party would be likely to object to its disclosure. On the contrary, it may even serve that person's interests to have the information disclosed. Weighing these interests of personal privacy against the public interest in disclosure, it is my view that disclosure of the information in the last sentence insofar as it relates to the personal affairs of a third person would not be unreasonable. None of the claims of exemption in respect of folios 136 and 137 have therefore been justified.

54. The presentation of the claims of exemption in respect of the abovementioned folios was, in my view, unnecessarily confused by the way in which the Schedule was prepared. The reality appears to be that folios 140 to 144 inclusive and folios 145 to 149 inclusive were identical copies of a handwritten telex message dated 13 June 1979 comprising some 14 paragraphs, numbered sequentially, sent by Mr T. Prexl, Prohibited Immigrants Section in Sydney to Mr J. Kennedy, Residence Control, Canberra. A copy of the telex was repeated to all Regional Offices. Folio 149A is a printout of the handwritten telex message included at folios 140 to 148 inclusive. For some reason each of these folios was treated as if it were a discrete document.

55. As I understand it paragraphs 1 to 3, paragraph 6, the whole of paragraph 9 and paragraphs 11 to 14 inclusive have been released to the applicant. The remaining paragraphs (4, 5, 7, 8 and 10) are claimed to be exempt from disclosure. In the reasons that follow I will be referring solely to the printed telex at folio 149A. It should be noted however that, as there are two paragraphs numbered "4" in that document, I am treating the second such paragraph as paragraph numbered "5". My remarks apply equally to the identical paragraphs in the handwritten telex messages at folios 140-148 inclusive.

56. In respect of paragraphs 4, 5, 7 and 8, the ground of exemption claimed was s.41. Paragraph 4 relates exclusively to the affairs of the applicant and Ms Pal. Having regard to Ms Pal's consent to disclosure of any information relating to her and there being no other suggested basis upon which the information contained in paragraph 4 is exempt, I find that the claim of exemption is no longer justified. Paragraph 5 consists of three sentences the last of which relates exclusively to the affairs of Ms Pal and for the reasons earlier given is not exempt pursuant to s.41. The first and second sentences, however, relate primarily to the personal affairs of persons related to Ms Pal.

57. The disclosure of the first and second sentences would, in my view, involve the unreasonable disclosure of information relating to the personal affairs of the other person referred to in those sentences. Neither sentence refers to the applicant. On balance I am satisfied that the need to protect the privacy of the persons referred to far outweighs any public interest in disclosure of those sentences. I accordingly uphold the claim exemption in respect of the first and second sentences of paragraph 5.

58. Paragraph 7 is a summary of the information contained in folios 136 and 137 which has either already been disclosed or as to which I have earlier rejected similar claims for exemption (see paragraph 53). For the same reasons, therefore, I reject the claim of exemption in respect of paragraph 7.

59. Paragraph 8. This paragraph comprises three sentences. The first sentence refers to a person other than the applicant or Ms Pal. However, it cannot, in my view, be said to relate to the personal affairs of that person. It is not, therefore, exempt under s.41. The second and third sentences relate to Ms Pal and the applicant. For the reasons earlier given I do not consider that those sentences are exempt from disclosure under s.41 of the Act.

60. The first sentence discloses information relating to the investigations conducted by the agency. If disclosed, it would reveal the identity of a person that I have already accepted to be a confidential source of information. As it is clear that the respondent seeks to maintain a claim of exemption in respect of that sentence and as, in my view, the wrong ground of exemption has been invoked, I find that the first sentence of paragraph 8 is exempt pursuant to s.37(1)(b) of the Act.

61. There remains paragraph 10 in respect to which the claim of exemption is based entirely on s.36 of the Act. Section 36(1) provides as follows:

"36(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 of the

Government of the Commonwealth; and

(b) would be contrary to the public interest."

62. Paragraph 10 was described in the Schedule as "an adverse opinion concerning the applicant's character recorded in the course of the functions of the Department, that is, action taken pursuant to the Migration Act". It is said that this part of the document is of a kind referred to in s.36(1)(a) of the Act and that it would be contrary to the public interest to disclose the opinion as to do so would inhibit the candour of officers in the course of their duties.

63. The telex in question was sent to the Residence Control Branch of the Department in Canberra on 14 June 1979 approximately two weeks before a deportation order was signed by the then Minister for Immigration and Ethnic Affairs on 1 July 1979. Although much of the document contained purely factual material (which has been otherwise disclosed) I am prepared to accept, in the absence of any argument to the contrary, that the disclosure of this part of the telex would disclose matter in the nature of opinion recorded for the purposes of the deliberative processes involved in the functions of the agency, namely the deliberations over whether or not to deport the applicant (see Re Waterford and Department of the Treasury (No. 2) (No.A83/52 at paragraphs 54-64). The question, therefore, is whether disclosure of paragraph 10 of the document would be contrary to the public interest.

64. Mr Perry, in his evidence, based the claim for exemption in this regard entirely on the need to ensure that officers of the Department were free to express candid opinions. In his evidence he said (at page 75):

"I think the point is that here is an officer

expressing an opinion, and the opinion is in, I

think, a proper context as far as the investigation

is concerned and I believe that that opinion ought

to be protected because it is a candid opinion and

it may well be less candid if it were known at the

outset that it was to be shown to Mr Raj."

Asked by Miss Quirk, who appeared on behalf of the respondent, whether the nature of the opinion was such that action adverse to Mr Chandra could be taken on it, on its face value. Mr Perry replied:

It was, he said, simply an opinion as to something which may happen.

65. In cross-examination (Transcript 127) Mr Perry was asked:

"How does it hurt, if that candid opinion is

disclosed?---Because this disclosure took place, or

this type of disclosure took place, I believe that

we would lose - lead to less candour, that our

investigative processes would not be as effective

as they are because our officers would feel

inhibited".

Pressed on the point Mr Perry said that, in his opinion:

"If I were to go back from this place and say to

the Investigations Section that all the opinions

that they expressed would be made available to the

persons about whom they expressed them, I believe

that there is a case that there would be less

candour". (Transcript 127).

In Mr Perry's opinion it was reasonable that officers should be protected in the opinions that they express. (Transcript 128).

66. Re Murtagh and Commissioner of Taxation, (No.V83/236 decision handed down 5 July 1984), a Tribunal presided over by the President made the following pertinent observations in respect of a submission that candour and frankness in making recommendations and in writing opinions with respect to Taxation assessments, objections and requests for reference, would be affected if disclosure to the public or to the particular taxpayer of such recommendations and opinions took place. The Tribunal said at page 21:

"The candour and frankness argument is not new.

It achieved pre-eminence at one time but has now

been largely limited to high level decision-making

and to policy-making. See Conway v Rimmer & Anor,

cited above, Burmah Oil v Governor and Company of

the Bank of England [1979] UKHL 4; (1980) AC 1090, 1132-1133, per

Lord Keith; Campbell v Tameside Metropolitan

Borough Council (1982) 1 QB 1065, 1077, per Ackner

LJ, 1079, per O'Connor LJ; Science Research Council

v Nasse [1979] UKHL 9; (1980) AC 1028, 1070 per Lord Salmon, 1081

per Lord Fraser; Sankey v Whitlam, cited above,

62-63 per Stephen J, 97 per Mason J; cp Burmah Oil

v Governor and Company of the Bank of England,

cited above, 1112 per Lord Wilberforce, 1145 per

Lord Scarman; Sankey v Whitlam, cited above, 38

per Gibbs CJ. It was submitted that, if officers of

the Department of Taxation knew of the possibility

that their written comments would be disclosed to

the particular taxpayer, they would be more

reluctant to commit their views to paper. Mr

Tomkins gave evidence that officers of the

Department were actively encouraged to put their

personal beliefs in no uncertain terms. Often, Mr

Tomkins said, they would "argue strongly" in favour

of taxpayers. It was suggested that such a

process might be hampered if an officer knew that

at some later point in time in the appeal stage he

or she would have to argue in favour of the

Commissioner and contrary to the officer's earlier

observations. It was suggested that this would

put the officer in an untenable position.

We cannot accept this view. It is one of the

duties of an officer of the Department to argue in

favour of proper recovery of taxation. It is also

a duty to weigh up arguments in favour of and

against the taxpayer. The fact that an officer

may express views which favour a taxpayer cannot be

held against him or her in any way. The

expression of such views cannot be used against him

or her at the review stage. If officers are made

aware of this fact then they should not temper the

nature of their comments nor be reluctant to commit

them to paper.

No cogent evidence was been given to this Tribunal

either in this review or, so far as we are aware,

in any other, that the enactment of the FOI Act

1982 has led to an inappropriate lack of candour

between officers of a department or to a

deterioration in the quality of the work performed

by officers. Indeed, the presently perceived view

is that the new administrative law, of which the

FOI Act 1982 forms a part, has led to an

improvement in primary decision-making."

Those observations apply, in my view, with equal force in the present context.

67. The difficulties in the way of a claim of public interest immunity in respect of a class of documents were pointed out very clearly by Stephen J in the passage to which I earlier referred from Sankey v Whitlam (1978) 142 CLR 1 at 62-3. His Honour went on to say:

"Those who urge Crown privilege for classes of

documents, regardless of particular contents, carry

a heavy burden. As Lord Read said in Rogers v.

Home Secretary (1973) A.C., at p. 400, the speeches

in Conway v. Rimmer [1968] UKHL 2; (1968) AC 910 have made it

clear 'that there is a heavy burden of proof' on

these who make class claims. Sometimes class

claims are supported by reference to the need to

encourage candour on the part of public servants in

their advice to Ministers, the immunity from

subsequent disclosure which privilege affords being

said to promote such candour. The affidavits in

this case make reference to this aspect. Recent

authorities have disposed of this ground as a

tenable basis for privilege. Lord Radcliffe in

the Glasgow Corporation Case remarked 1956 S.C.

(H.L.), at p.20 that he would have supposed Crown

servants to be 'made of sterner stuff', a view

shared by Harman L.J. in the Grosvenor Hotel Case

(1965) Ch, at p 1255: then, in Conway v. Rimmer

(1968) AC 901, Lord Reid dismissed the 'candour'

argument but found the true basis for the public

interest in secrecy, in the case of cabinet minutes

and the like, to lie in the fact that were they to

be disclosed this would 'create or fan ill-informed

or captious public or political criticism. ... the

inner workings of the government machine being

exposed to the gaze of those ready to criticize

without adequate knowledge of the background and

perhaps with some axe to grind' (1968) A.C., at p.

952 and see as to the ground of 'candour' per Lord

Morris (1968) A.C., at p. 959, Lord Pearce (1968),

A.C., at pp.987-988 and Lord Upjohn (1968) A.C., at

pp 933-934. In Rogers v. Home Secretary (1973)

AC, at p 413 Lord Salmon spoke of the 'candour'

argument as 'the old fallacy'." (cf. per Mason J at

97 and Gibbs CJ at 38).

68. The new Commonwealth administrative law has now been in operation for some years. Admittedly, it has developed in somewhat piecemeal fashion starting with the Administrative Appeals Tribunal Act in 1975, the Ombudsman Act in 1976, the Administrative Decisions (Judicial Review) Act in 1977 and culminating in the Freedom of Information Act in 1982. Most agencies have had experience of external review of their decisions either before the Federal Court, this Tribunal or the Ombudsman. They have had to become used to their decision-making processes coming under external scrutiny.

69. Certainly, in proceedings before the Tribunal, it is a requirement of the Administrative Appeals Tribunal Act 1975 that documents in the possession or under the control of the agency, that are considered to be relevant to the review of the decision by the Tribunal, must be lodged with the Tribunal (see s.37). Subject to any order that may be made by the Tribunal pursuant to s.35 of the Act protecting specified documents from disclosure, it is a routine procedure for the Tribunal to make copies of the documents available to the applicant. Those documents frequently contain the comments of investigations, submissions both favourable to and adverse to a claimant, and frank opinion, including doubts, about the correctness of departmental action or proposed action.

70. Yet there is no documented evidence of which I am aware that disclosure of such matters has been harmful to the administrative process or has placed unreasonable fetters upon the freedom of officers to express their views with candour and frankness. On the contrary, such published comment as has come to my notice has been to the effect that, despite early doubts, about the likely impact of the new administrative law, the quality of decision-making has been improved and fears that candour and frankness would be impaired have not been realised.

71. Thus I am very loath to accept that documents containing expressions of opinion by an officer with respect to a prohibited immigrant under consideration for deportation are, as a class, documents which must be protected from disclosure in order to protect the candour and frankness with which such opinions need to be expressed.

72. I have considered whether, having regard to the particular expressions of opinion made in the telex, there is nevertheless any ground of public interest upon which those expressions of opinion should be withheld from disclosure at this stage. However, in my view, there are no such grounds. The expressions of opinion were made in the context of an investigation regarding the applicant, leading up to a decision whether or not to deport him from Australia. The deportation order was signed on 1 July 1979 and although it has not yet been implemented, neither has it been revoked. The only ongoing aspect of this matter so far as the applicant is concerned is his attempt to have reconsidered his application for permanent resident status. It was not suggested to me by Counsel for the respondent, nor can I see any basis upon which any further consideration that may be necessary to be given to the applicant's entitlement to remain in Australia, will be inhibited by disclosure of the opinion referred to in the telex. In my view therefore it has not been shown to be contrary to the public interest to disclose paragraph 10 of the telex and the ground of exemption claimed under s.36 of the Act cannot be sustained.

73. This document also raises a claim of exemption based on s.36. It was described as a memorandum dated 14 September 1981 to the Officer-in-Charge of Residence Control regarding the applicant. It was said that the second sentence had been deleted as it contained a suggestion of a deliberative nature made by a departmental officer concerning the appropriate method of contacting the applicant for further interview in 1981. The name of the author of the document was said to be illegible.

74. It appears however that the applicant had in fact been granted access to all but the last two lines of the second sentence (see Transcript 137). Mr Perry described the deleted two lines as containing a suggestion in relation to the investigative processes then in train within the Department. He said that in the circumstances it appeared to him to be a recommendation in relation to a deliberative process of the agency. As with the previous document Mr Perry based the claim of public interest on the need for candour and said (Transcript 138) that "it is a matter of whether that individual would be prepared to be as candid again if that (disclosure) were to occur." He added that this was his understanding as to why s.36 had been included in the Act because "it goes to the basis of good government and wanting an officer to feel absolutely unconstrained in making a statement". The deleted lines in his view should be protected because they express a candid opinion as part of a deliberative process of the agency.

75. In contrast with the opinion contained in paragraph 10 of the telex (folio 149A), which could be seen as flowing from a completed investigation and as being related to the deliberative process then in train (i.e. to deport or not), folio 196 is simply a procedural suggestion relating to an investigation then in process regarding the applicant. In the circumstances I find it difficult to see how the document can be said to relate to a deliberative process involved in the functions of the agency (cf. Waterford (No.2)). However, as I do not consider that the disclosure of the residue of the document would, in any event, be contrary to the public interest I do not need to resolve the question.

76. I do not profess to understand why the first two lines of the second sentence of this document were disclosed without also disclosing the first five words on the third line. I fail to see any arguable basis upon which disclosure of those five words would cause any possible damage to any investigative or deliberative process undertaken by the agency in the present case or in any future case. The suggestion made by the officer was of a quite routine nature. If the words are disclosed, it is, in my view, inconceivable that any officer faced with a similar problem in the future would feel inhibited in the slightest degree in making a similar suggestion, if thought appropriate.

77. The nub of the respondent's concern with respect to disclosure of this document appears to lie, however, in the concluding part of the second sentence commencing with the word "Otherwise". I agree with Mr Perry that this part of the document contains a candid comment presumably reflecting a genuine concern about a possible consequence if a certain procedure were followed. As with the previous document, however, I see no grounds for apprending that an investigating officer would feel inhibited in any future case from expressing a similar concern simply because the fact of his having expressed that concern might become known at a later stage.

78. It is important, in my view, to bear in mind that the Tribunal is here concerned with an observation made nearly three years ago at a point of time when the applicant's current address was evidently not known (so much is disclosed in the part of folio 196 access to which has been granted to the applicant). The applicant's whereabouts has since been ascertained and according to the information before me (see Exhibit 3) the applicant was taken into custody on 20 January 1984 pursuant to s.39 of the Migration Act 1958. He was, however, released from custody on 22 February 1984 subject to an obligation to report regularly to the Department. The circumstances in which the comment was made therefore have ceased to have any present relevance. In my view the respondent has failed to establish that the disclosure of the residue of folio 196 would be contrary to the public interest. I do not consider therefore, that the claim of exemption under s.36 of the Act was justified.

79. This document is described in the Schedule as a file note written in confidence and dated 14 July 1979. It is said to refer to the personal affairs of someone other than the applicant. Although the document constitutes a folio on the file of the applicant there is no mention made in the document of the applicant himself. The name of the author of the document is illegible. The grounds of exemption relied upon are s.37(1)(b) - on the basis that disclosure would disclose the identity of a confidential source of information and s.41 - on the ground that disclosure would involve an unreasonable disclosure of the personal affairs of the person referred to in the document.

80. There are in fact three separate statements within this document, the last of which clearly relates to the personal affairs of Ms Pal. Having regard to the consent given by her to disclosure of any information relating to her personal affairs, I see no reason whatever to withhold that part of the document pursuant to s.41. It does not disclose the identity of any confidential source of information and thus no question of exemption under s.37(1)(b) arises in respect of that statement. As the sentence is severable without making the document misleading I see no justification for withholding it.

81. The other two statements were described in Mr Perry's evidence as follows (Transcript 141):

"MR MYLES : How is it that you can say, the sources

are confidential from the document?---Because the

person who received the note has received it - I

would understand - in such a way as would lead him

to say that the Instrumentalities from whom he

receives the information wish it to be treated in

confidence. That is why the note is marked that

way, and then from the contents themselves - the (

type of thing that is disclosed - I would believe

it reasonable to assume that those

instrumentalities would want these matters treated

in confidence."

82. Dealing firstly with the claim of exemption under s.41 of the Act, I would have thought that the probabilities were that the first paragraph related to the affairs of Ms Pal. If that be so, then for the reasons earlier given, there could be no objection to the disclosure of that information so far as s.41 is concerned. It is not clear to me who the person is that is referred to in the second sentence, but as it appears to be a person other than the applicant or Ms Pal and as the information has no direct relevance to the applicant, I am satisfied that in respect of the second sentence its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of the person named therein and that it therefore is exempt pursuant to s.41.

83. With respect to the claim under s.37(1)(b) of the Act the position is more complex. Mr Perry's evidence (Transcript 141) discloses that the information in the first two sentences was obtained from instrumentalities. I am satisfied that the disclosure of these sentences would disclose the identity of a source of information in relation to the enforcement or administration of the law namely the enforcement of a deportation order signed in respect of the applicant on 1 July 1979. I am also satisfied that as at the date when the information was provided to the agency (which was well prior to the commencement of the Freedom of Information Act 1982) both sources would have expected both their identity and the information provided to be kept confidential. Prima facie, therefore, the claim of exemption under s.37(1)(b) in respect of both sentences was justified.

84. There remains the question, however, whether the information provided, if not otherwise exempt under any other provision of the Act, can be disclosed without revealing the source of information. With respect to the first sentence it is my view that the source of the information and the nature of that information is so inextricably interwoven that the information cannot be disclosed without also revealing the source. In the circumstances whilst the claim of exemption under s.41 may not have been justified, the claim under s.37(1)(b) was. With respect to the second sentence, it is my view that the information provided could be disclosed without so disclosing the source of that information. However as already mentioned the information provided is in my view exempt by virtue of s.41 of the Act.

85. Thus, in the final analysis, it is my view that the first sentence of folio 150 is exempt pursuant to s.37(1)(b) of the Act. The second sentence is exempt pursuant to s.37(1)(b) because its disclosure would disclose the identity of a confidential source of information in relation to the administration of the law and pursuant to s.41 because its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of a person other than the applicant or Ms Pal. However the third sentence in my view is not exempt, notwithstanding that the document is headed "Confidence".

86. In summary, I find that the only claims of exemption that have been sustained are those made in respect of the following parts of the undermentioned folios:-

(i)folio 100: The first sentence in para 2 and

the

first sentence in para 3.

(ii)folio 134: Lines 3, 4, 5 and 6 and the name,

address and phone number appearing

beneath the signature of the person

who

signed the document.

(iii)folios 140-149A: The first and second sentences of

para

The first sentence of para 8.

(iv)folio 150: The first and second sentences.

87. It will be apparent from what I have said that the presentation of this case was, in my view, unnecessarily confused. Some of that confusion was inevitable given that it was not until during the first day of the hearing of the matter that it became clear that Ms Pal did not object to disclosure of any documents containing information relating to her personal affairs. It would have considerably shortened the hearing, and avoided some of the resultant confusion, if this aspect of the matter had been clarified prior to the hearing. As it was, because partial access to some documents relating to Ms Pal was granted by the respondent after the hearing there has been no opportunity for evidence to be given or argument to be advanced as to the basis on which the remaining deletions are said to be justified.

88. There are a number of lessons to be learned in my view, from the way in which the Schedule of documents was prepared in this case. In the first place, where there is a large number of documents said to be exempt - as there were at the commencement of this hearing - a concise schedule of documents is usually invaluable both to the Tribunal and to the applicant (see Re News Corp. Ltd and National Companies and Securities Commission (N83/543) - Directions hearing decision handed down on 8 May 1984). A schedule of documents may, of course, be impracticable where even the description of the documents would disclose matter claimed to be exempt (see News Corporation Ltd and National Companies and Securities Commission - No. N83/543, decision handed down on 9 August 1984); or where the nature of the claim of exemption does not require more than a general description of the nature of the documents (e.g. budget estimates). However, the schedule usually provides the only framework within which the applicant and the Tribunal can consider the evidence relating to the various claims of exemption. Care is needed therefore to ensure that the schedule is as concise and accurate as possible.

89. It must be borne in mind that the applicant and his Counsel are denied access, during the hearing, to any of the documents claimed to be exempt (see s.64(1) of the Act and Re Arnold Bloch Leibler & Co and The Commissioner of Taxation, No. V83/198 decision handed down 18 April 1984). The Tribunal itself will be denied such access, unless the respondent voluntarily provides a set of those documents to the Tribunal for its assistance during the hearing. This is a practice which many agencies adopt, notwithstanding that s. 64(1) of the Act denies the Tribunal the power to require production of the documents until such time as it can properly say that it is not satisfied, by evidence on affidavit or otherwise, that the documents are exempt. If an agency is prepared at the commencement of a hearing to make a set of the documents available for the assistance of the Tribunal it would normally be desirable in my view for the Tribunal to make an order pursuant to s.35(2) of the Administrative Appeals Tribunal Act 1975, on the application of the agency, limiting access to the documents in accordance with the provisions of s.64(1) of the Freedom of Information Act 1982.

90. The second comment I would make is that, although it may be true, in one sense, that each folio on a departmental file is a "document", it is, in my view, very confusing if what is essentially a four or five page document consisting of consecutively numbered paragraphs is treated for the purposes of claims of exemption as if each page of that document was itself a separate document. In my view folios 140-144 inclusive and folios 145-149 inclusive should have been identified as what they really were, namely identical handwritten copies of a telex message comprising some 14 paragraphs. The paragraphs for which exemption was claimed in those folios and in folio 149A (the telex printout) could have been identified quite simply by the consecutive paragraph numbers.