FREEDOM OF INFORMATION - internal working documents - records generated in process of conducting investigation - documents concerning operations of agencies - tests, examinations, audits - personal information - non-natural person- information that person is officer in agency - telephone number of agency officer - secrecy provisions -

Administrative Appeals Tribunal Act 1975 ss 26(2), 35(2)(c),

Air Navigation Act 1920 Division 3 of Part 2A, ss 19AG, 19CA, 19CC, 19CT, 19HC

Freedom of Information Act 1982 ss 4(1) ("personal information"), 22, 27A, 36, 38(1)(b)(i), 40, 41, 61(1), 63, 64

Freedom of Information Act 1992 (WA) s 32

Christoforidis v Cygnet Bulk Carriers SA [2002] FCA 690

Collie and Deputy Commissioner of Taxation, Re [1997] AATA 713; (1997) 45 ALD 556

Fitzhenry as agent for Boeing Company, In the matter of an application by [2002] ACTSC 93

Howard and Treasurer of the Commonwealth, Re (1985) 3 AAR 169

Jamieson and Department of Aviation, Re (1983) 5 ALN N300; (AAT 1267, 18 October 1983)

Veale and Town of Bassendean, Re [1994] WAICmr 4

1. This is an application to the Administrative Appeals Tribunal ("the tribunal") by Bruno Schlegel ("the applicant", "the requester") for review of a decision by an authorised freedom of information ("FOI") internal review officer in the Department of Transport and Regional Services ("the respondent", "the department") dated 21 January 2002 (T4). The review officer varied the primary decision dated 31 October 2001 (T6/34) in that the review officer granted Mr Schlegel access to one additional document with deletions. The tribunal's task is to decide whether all or any of the documents copies of which were not provided, or were provided but with deletions, to Mr Schlegel should have been provided to the applicant in full or in some other form.

2. The tribunal convened a hearing in this matter in Sydney on 26 September 2002. Mr Ashley Tsacalos of Deacons Lawyers represented Mr Schlegel. Mr Greg Peek of the Australian Government Solicitor's office represented the department. Mr A L Stray from the department gave oral evidence. The tribunal had access to the following documents:

Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T11) provided by the respondent.

Exhibit A1 - Applicant's statement of facts and contentions, undated.

Exhibit A3 - Bureau of Air Safety Investigation Occurrence Brief 9800590 De Havilland Canada DHC-1 T MK 10, 25 February 1997.

Exhibit R1 - Respondent's statement of facts and contentions, 17 September 2002.

Exhibit R2 - Witness statement by Mr A L Stray, 6 September 2002.

Exhibit R4 - International Civil Aviation Organisation circular concerning Assembly Resolution A33-17, 31 January 2002.

In accordance with s 64 of the Freedom of Information Act 1982 ("the FOI Act) the respondent provided the tribunal with a copy of the set of disputed documents. In accordance with s 63 of the FOI Act, and exercising powers under s 35(2)(c) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), the tribunal issued the following direction:

That disclosure of the copies of the disputed documents provided by the respondent at the hearing of this matter is limited to only the tribunal and tribunal staff in carrying out their tribunal duties and to the respondent, its representatives and officers in carrying out their relevant functions and duties.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

3. The applicant requested on 17 September 2001 "all documents in relation to the investigation of the aeroplane accident involving [Bruno Schlegel] at Jandakot in Western Australia including, but not limited to, all documents relating to the report of the Bureau of Air Safety Investigation and Occurrence Brief 9700590" (T10).

4. The respondent's officers located one file, BO/199700590/01, relevant to the request (T6/34). The file contained 88 folios. Of these 1 folio was 71 loose colour photographs, of which only 4 were relevant and not released in full. 34 folios were released in full. 11 folios were released with deletions. 42 were regarded as exempt. The grounds of exemption variously claimed were:

* Some documents were alleged to be internal working documents and exempt from disclosure under s 36 of the FOI Act.

* Some documents were alleged to affect adversely the operations of the respondent and so were allegedly exempt under s 40 of the FOI Act.

* Disclosure of some documents was said to involve the unreasonable disclosure of personal information about a person and so were allegedly exempt under s 41 of the Act.

* Some documents were said to attract more than one of the above grounds of exemption.

* Some documents were provided with deletions which were justified on the above grounds.

5. At the internal review stage the decision-maker decided that an additional folio could be provided with deletions said to be justified under ss 36, 40 and 41 of the Act (T4).

6. The respondent's justifications for claiming these exemptions were set out in the respondent's statement of facts and contentions (ex R1). The respondent addressed the "internal working documents" exemption. Section 36 of the FOI Act is in the following terms:

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

(3) Where a Minister is satisfied, in relation to a document to which paragraph (1) (a) applies, that the disclosure of the document would be contrary to the public interest, he or she may sign a certificate to that effect (specifying the ground of public interest in relation to which the certificate is given) and, subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the disclosure of that document would be contrary to the public interest.

(4) Where a Minister is satisfied as mentioned in subsection (3) by reason only of matter contained in a particular part or particular parts of a document, a certificate under that subsection in respect of the document shall identify that part or those parts of the document as containing the matter by reason of which the certificate is given.

(5) This section does not apply to a document by reason only of purely factual material contained in the document.

(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;

(b) reports of a prescribed body or organization established within an agency; or

(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.

(7) Where a decision is made under Part III that an applicant is not entitled to access to a document by reason of the application of this section, the notice under section 26 shall state the ground of public interest on which the decision is based.

(8) The responsible Minister of an agency may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to the principal officer of the agency his or her powers under this section in respect of documents of the agency.

(9) A power delegated under subsection (8), when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the responsible Minister.

(10) A delegation under subsection (8) does not prevent the exercise of a power by the responsible Minister.

7. The respondent submitted that the documents in question, relating as they did to the aircraft accident which occurred on 25 February 1997, were clearly within the definition in s 36(1)(a) of the FOI Act.

8. As regards the sensitivity of the documents, the respondent stated that they were notes made by investigators during the course of their investigation into the accident. Other documents consisted of a BASI internal e-mail advising of the accident and containing interim information about the accident. The investigators' notes were said to be documents containing opinions of persons carrying out air safety investigations on behalf of the former BASI under the Air Navigation Act 1920 ("the ANA"). It was said that they did not represent any considered view of either the individual investigators involved, or of BASI, as to the cause of the accident.

9. It was said that the ultimate agency purpose or function to which the deliberations in the documents in this case related, was the investigation by BASI of the aircraft accident in accordance with the object of Division 3 of Part 2A of the ANA. This was for the purpose of reporting to the Secretary (of the Department of Transport and Regional Services) under section 19CT of the ANA. The documents said to be exempt under s 36 of the FOI Act were all created in the preliminary part of this process.

10. The respondent submitted that the public interest factor that weighed most heavily against release of internal working documents was their incomplete or interim nature, said to inhibit the ability of the agency concerned to formulate policy or perform other functions. The writer of ex R1 cited the public interest principles enunciated in the decision of Davies J in Re Howard and Treasurer of the Commonwealth (1985) 3 AAR 169, 178 as applicable in the current case:

"3. Disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest.

"4. Disclosure which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest.

"5. Disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process."

The respondent's general view was that release of these documents would be contrary to the public interest because release of such information would be prone to inappropriate use, namely to attribute blame for, or liability, in relation to accidents contrary to the objects stated in s 19CA of the ANA and because such release would inhibit the future disclosure of information to the Australian Transport Safety Bureau ("the ATSB") in the course of carrying out such investigations.

19CA The object of this Division is, by the establishment of a system of investigation for determining the circumstances surrounding any accident, serious incident, incident and safety deficiency, to prevent the occurrence of other accidents, serious incidents, incidents and deficiencies. It is not part of the object of this Division:

(a) to provide the means of apportioning blame for the occurrence of an accident, serious incident, incident or safety deficiency; or

(b) to provide the means of determining the liability of any person in respect of an accident, serious incident, incident or safety deficiency.

documents which if disclosed could reasonably be expected to have an adverse effect on an agency

12. The above heading is somewhat inaccurate but is so presented in the interests of brevity. The FOI Act fairly precisely defines the types of adverse effect that are relevant in relation to this ground of exemption. Section 40 of the FOI Act reads:

Documents concerning certain operations of agencies

40. (1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;

(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency; personnel by the Commonwealth or by an agency;

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or

(e) have a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations.

(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

13. The respondent suggested that the various activities involved in "investigating" are sufficiently analogous to the terms "tests, examinations or audits" to attract the protection of paragraphs (a) and (b) in s 40(1) of the FOI Act. Further, it was submitted that whether release of the documents would "prejudice" or "have a substantial adverse effect on" these activities entails the same considerations as those involved in whether disclosure would not "on balance, be in the public interest" as provided in s 40(2) of the FOI Act.

14. Relying on the statement by Mr Stray (ex R2) the statement of facts and contentions of the respondent suggests that the documents said to be exempt under s 40, with the exception of a document entitled "Chipmunk DC-1 Handling Notes", contain information provided to investigators by third parties, investigators' interim opinions on this information and information which would identify the persons who provided the information. Mr Stray was of the opinion that release of these documents would have a substantial adverse effect on the ability of the ATSB to carry out detailed investigations into aircraft accidents and incidents in the future. This is because persons with information on any future accident may be less likely to provide full and frank information if they know that notice of the discussions with ATSB investigators will be available to third parties. Mr Stray referred to the reliance of the ATSB on provision of information from members of the aviation industry and the public in carrying out investigations under Part 2A of the ANA and suggested instances where release of such information for purposes of attributing blame or liability had resulted in the flow of information from members of the aviation industry and members of the public being prejudiced or adversely affected.

15. It was therefore submitted that the tribunal would accept that there is a "reasonable expectation" that the investigatory functions, activities or "operations" of the ATSB under Part 2A of the ANA would be "prejudiced" or "substantially adversely affected" if the material were to be released, and also that release would not on balance be in the public interest.

16. The respondent addressed the "public interest" aspect of this exemption and suggested that there is considerable indication of a legislative intention that documents relating to investigations under Part 2A of the ANA are to be afforded the highest degree of confidentiality in order to preserve the integrity of the investigation process, and the candid and voluntary provision of information to investigators. The respondent pointed to:

* The express statement in s 19CA of the ANA that the object of Division 3 of Part 2A of the ANA is not for the purpose of attributing blame or liability.

* Reports to the Secretary of the department, or other documents given to him or her with the report, under s 19CT of the ANA, which is the culmination of the investigatory process set out in Part 2A by the ANA, are exempt from production under s 38(1)(b)(i) of the FOI Act.

* The majority of documents associated with air safety investigations come within the definition of "air safety records" in s 19AG of the ANA. Such air safety records are accorded a high degree of confidentiality. Air safety records are defined as follows:

air safety record means all or any of the following:

(a) all statements (whether oral or in writing) taken from persons by an investigator in the course of an investigation under this Part including any record of such a statement;

(b) all communications between persons involved in the operation of an aircraft;

(c) medical or private information regarding persons (including deceased persons) involved in an accident, serious incident or incident;

(d) cockpit voice recordings and transcripts from such recordings;

(e) flight data recording and transcripts from such recordings;

(f) opinions expressed by a person in the analysis of information including flight data recorder information.

Section 19HC of the ANA provides a significant penalty for the disclosure of any such documents by an air safety officer.

17. The respondent referred to Annex 13 to the Chicago Convention, of which Australia is a party, and which is incorporated into Australian Law via the ANA. Annex 13 sets out international standards and recommended practices in relation to aircraft accidents and incident investigation. Part 2A by the ANA reflects these requirements. On 31 January 2002 the International Civil Aviation Organisation ("ICAO") contacted all parties to the Convention to commend to them ICAO Assembly Resolution A33-17 dealing with the nondisclosure of certain accident and incident records ex R4). In the communication ICAO emphasised that the Assembly had recognised the need for confidentiality in relation to investigation records to ensure that information is made available to investigators.

18. The respondent argued that material containing personal information had been deleted where documents released contained personal information about persons assisting with the investigation and it was considered that disclosure of the documents would involve the unreasonable disclosure of such information. These reasons accord with the drafting of s 41 of the FOI Act:

41. (1) 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).

(2) Subject to subsection (3), 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.

19. "Personal information" is defined in s 4 of the FOI Act:

"personal information" means 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;

20. The respondent said that the information that had been deleted in this case comprised information from which the identity of individuals who provided information during investigation could be ascertained. This included their names, addresses, facsimile contact details and photographs of them.

21. Disclosure was said to be unreasonable because the privacy of individuals concerned should outweigh the general public interest in disclosure of public information, particularly given the strong public interest factors against disclosure of information relating to the investigation of aircraft accidents. The personal information in the documents would have been perceived by those to whom it relates as having been provided "in confidence". The intrusion into their personal privacy on the basis that they have assisted BASI with their investigations, particularly if compelled to become involved in litigation, would have an obvious deterrent effect on such persons being prepared to assist in future.

22. Mr Stray, Deputy Director, Air Safety Investigation, ATSB, was called by Mr Peek to give evidence. He had provided a considered and very helpful statement in advance (ex R2). There were several threads to Mr Stray's evidence. However, his basic point was that it is only if the confidentiality of material gathered in the course of an air safety investigation could be guaranteed that persons with useful information would come forward to present their information to the ATSB.

23. Section 19CC of the ANA had been enacted in 1995 to provide the Director of Air Safety Investigation ("the director") with powers of compulsion to obtain information. Those compelled to provide information are indemnified against the use of their information in a proceeding of a criminal nature or a proceeding to exact a penalty. Section 19CC is as follows:

19CC (1) For the purposes of an investigation under this Part, the Director may, by written notice given to a person:

(a) require the person to attend before the Director and answer questions relating to matters relevant to the investigation; and

(b) require the person to produce to the Director a specified document, or a specified part or component of an aircraft, or any other thing relevant to the investigation to the Director.

(2) A notice under subsection (1) must be signed by the Director and must specify the time and place at which the person is required to attend before the Director or produce the document, part or component of an aircraft or other thing relevant to the investigation.

(3) When a person attends before the Director in accordance with a requirement under paragraph (1)(a), the Director may require the person to answer questions on oath or affirmation. For that purpose, the Director may:

(a) require the person to take an oath or make an affirmation that the answers the person will give to the Director's questions will be true; and

(b) administer an oath or affirmation to the person.

(4) A person to whom a requirement under paragraph (1)(a) or (1)(b) is given must not:

(a) fail to attend before the Director in accordance with the requirement; or

(b) refuse to take an oath or make an affirmation when required by the Director to do so; or

(c) fail to answer a question lawfully put to the person by the Director; or

(d) fail to produce to the Director the document, or specified part or component of an aircraft or other thing in accordance with the requirement.

(4A) Subsection (4) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4A) (see subsection 13.3(3) of the Criminal Code).

(4B) An offence under paragraph (4)(a), (c) or (d) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(a) retain a document produced in accordance with a notice under subsection (1) for so long as is reasonable and necessary for the purposes of the investigation; and

(b) make copies of, or take extracts from, such a document; and

(c) retain a part or component of an aircraft produced in accordance with a requirement under subsection (1) for so long as is reasonable and necessary for the purposes of the investigation.

(6) It is not a reasonable excuse for a person's refusal or failure to:

(c) produce a part or component of an aircraft or other thing;

that the giving of an answer, or the production of the document, part, component or thing, as the case may be, may tend to incriminate the person or make the person liable to a penalty.

(a) answering a question put to the person by the Director; or

(c) producing a part or component of an aircraft or other thing to the Director;

on the ground that the answer to the question, or the production of the document, part or component or thing, as the case may be, may tend to incriminate the person or make the person liable to a penalty, subsections (8) to (10) have effect.

(8) The person is not relieved of the obligation to answer the question or produce the document, part, component or thing, as the case may be.

(9) The answer to the question, the production of the document, part, component or thing, or any information or thing obtained as a direct or indirect consequence of the answer to the question or the production of the document, part, component or thing is not admissible in evidence against the person in a criminal proceeding or in a proceeding for the recovery of a penalty.

(10) Subsection (9) does not render an answer inadmissible in evidence in proceedings in respect of the falsity of the statement.

(11) A person who attends before the Director in accordance with a requirement under paragraph (1)(a) or (b) is entitled to be paid, in relation to that attendance, fees and allowances for expenses fixed by, or calculated in accordance with, the regulations.

24. Mr Stray told the tribunal that the ATSB uses s 19CC when a person with information refuses to co-operate voluntarily. The tribunal queried whether information provided under compulsion is as valuable and as full as information provided voluntarily. Mr Stray said that he believes it is of equal value. However, later in his evidence he said that a witness now compelled to provide information could say that he or she does not remember if he or she is doubtful about co-operating fully.

25. In the applicant's extensive statement of facts and contentions (ex A1) and in oral argument the applicant's representative made a number of submissions suggesting that access should be given to the documents.

26. Mr Tsacalos said that the effect of Annex 13 to the Chicago Convention within a contracting State depends on the legislative framework within the contracting State. The Australian context is relevant within Australia.

27. Within Australia the FOI Act was enacted to promote open, accountable, transparent government. These purposes should not be frustrated by explicit provisions in other legislation.

28. Mr Tsacalos noted that much of the respondent's argument was based on concern that, if information gleaned during an air safety investigation is released, information given to air safety investigators will dry up. He said, however, that the ANA gives the ATSB powers to compel the provision of information.

29. Mr Tsacalos conceded that his client had been given access to the final report on the relevant crash. This was the Occurrence Brief (ex A3). However, access to the investigation documents was necessary for a complete understanding of the material in the report and of what occurred.

30. Mr Tsacalos cross-examined Mr Stray extensively. Mr Stray told him that people with a contribution to offer were often reluctant to provide information about an air accident to the ATSB because of fears for their career or promotional opportunities. In Mr Stray's view the mistrust of the ATSB has grown over about 16 years because of attempts by and through courts to secure access to ATSB documents and personnel. Police, coronial and FOI action are a part of this picture also. Part of the difficulty is that individuals can confuse the ATSB with the Civil Aviation Safety Authority ("CASA") which is an enforcement body. The ATSB is a safety body without powers of enforcement.

31. Mr Tsacalos quizzed Mr Stray about air safety investigations covering such matters as the steps involved once an accident has occurred. Essentially these are:

* A decision is made as to whether the ATSB will investigate. If an investigation is to occur it could be office based or a field investigation. If a field investigation there will be a site inspection. A team goes onto the site which the police will have secured.

* On site the team determines how long the investigation will run and how long the site must be secured. Police can often assist with the names of witnesses.

* The ATSB identifies who is the "investigator in charge". He or she may be head of a team. The ATSB team speak to witnesses and gather information.

* A draft report is written by the team leader. This proceeds through several reviews. There is a peer review of the draft report, then a review by the Deputy Director, then a review by the director, then a review at Executive Director level. Affected parties are given the draft for comment.

32. Mr Stray said that the procedure in the past four years has been fairly consistent. The report in the present case was reviewed in draft form by the investigator in charge and by peers. It was finalised and released by the field office manager, an officer a level below Deputy Director level.

33. Mr Stray advised that this had been a "level 4" investigation. He may have meant a "category 4" investigation. Exhibit A3 explains the categories. Category 4 applies to occurrences where the facts revealed by the reported circumstances suggest neither a concern for public safety nor a serious safety deficiency. It is applied to "minor accidents" and occurrences where there is no need for recommended remedial action but where the circumstances are sufficiently complex to require more detailed information from the pilot or operator. Data from the occurrence is collected and stored for trend analysis.

* Category 1 occurrences involve serious occurrences which present a threat to public safety or are subject of much public interest.

* Category 2 occurrences involve a reasonable concern for public safety or potential for formal recommendations.

* Category 3 occurrences generally involve fatal accidents.

* Category 5 occurrences suggest no need for safety action by the ATSB.

Category 1 and 2 occurrences tend to involve commercial airliners.

34. In the instant case Mr Schlegel was injured when he was flying a training craft under instruction and the aircraft was forced to ground for a rough landing that left him paralysed. It was a small aircraft with only two on board.

35. Mr Stray explained that where an ATSB investigation finds a deficiency warranting a recommendation it raises the matter with the airline and its mechanics before issuing its report. The ATSB cannot ground aircraft. It cannot enforce its recommendations. CASA can, however, adopt such recommendations and compel their implementation. ATSB recommendations could address the integrity of an aircraft, operating procedures, regulations, or other similar matters.

36. Mr Stray was asked if an ATSB report of an occurrence had ever been found incorrect. Mr Stray replied in the affirmative but explained that the issues were less matters of right or wrong than matters of degrees of argument. The tribunal takes this to mean matters of degree or emphasis. He referred to ATSB's internal checks and balances which tend to ensure that an occurrence brief is well founded and defensible.

37. In cross-examination Mr Tsacalos indicated the applicant's interest in using the exempt documents to try and ascertain the cause or causes of the accident in February 1997. Mr Stray explained that occurrence briefs eschew references to "causes" of occurrences, preferring to refer to "significant factors" in an accident. This is part of the ATSB's overall policy of discouraging the use of its reports in proceedings to establish legal liability.

38. Mr Tsacalos took Mr Stray to Occurrence Brief 9700590 (ex A3). He noted that the brief did refer to a "cause" on page 4. The brief included the following:

"The aircraft was being used for endorsement training of a foreign tourist. It had been operating in the training area east of Jandakot for approximately one hour and was engaged in general handling manoeuvres and aerobatics. Having completed these manoeuvres, the instructor decided to conduct practice forced landing training. During the first approach, from an altitude of 2,500 ft, the instructor reported that the throttle had been opened twice and the action had responded normally.

"The instructor reported that at 200 to 300 ft, with 30 degrees of flap set, he instructed the student to commence a go-around. He reported that the student raised the nose attitude and opened the throttle but the engine did not respond. The student was flying the approach at 65 knots. The stall speed in the finals configuration was approximately 42 knots. The recommended climb speed was 60 knots.

"The instructor reported that he checked that the throttle was fully open. He also noticed the speed reducing. He took over and attempted to lower the nose attitude to prevent the aircraft stalling but the aircraft did not seem to accelerate. He called to the student to check that the fuel was on.

"The instructor reported that he had turned right, then left to avoid a tree and line up on a paddock. He did not assess the rate of descent is being excessive until he tried to flare the aircraft for landing. He did not recall the engine power recovering before impact.

"Wreckage evidence indicated that the engine was delivering high power at impact. The wreckage and ground marks also indicated that the aircraft had struck the ground in a flat attitude at relatively low ground speed. There was sufficient fuel and the fuel selector had been selected to the left tank.

"The engine was a Gypsy Major 10, Mk 2, correctly modified for use in the Chipmunk aircraft. During the subsequent engineering examination, the engine was removed and successfully run on a test stand. An examination of the fuel components including the carburettor, fuel pump and filters indicated that there were no pre-existing faults. The engine's original Fairey metal propeller had been replaced by an approved Hoffman wooden propeller. Operators reported that the wooden propeller appeared to have less "flywheel" effect and although the engine could accelerate faster, it would also stop more readily.

"Previously reported problems associated with Gypsy Major engine response during go-arounds was pinpointed to worn needle valve seats causing carburettor flooding. A modification was introduced in 1957 to address the fault. The modification was incorporated in the accident engine and the subsequent examination revealed that the valve seat was not worn.

"The Gypsy Major engine does not incorporate an accelerator pump and rapid throttle openings have been known to induce a delay to the fuel/air mixture becoming, momentarily, lean. Whilst this appears to be a known characteristic of the engine, there is no warning in the aircraft's handling notes relating to the consequences of opening the throttle too rapidly

"Evidence indicated that the engine was delivering significant power at impact. The post-accident engine examination and ensuing test run revealed that it was unlikely that a mechanical fault caused the engine to lack power during the go-around. If, however, the throttle was opened too rapidly during the go-around, the engine may have momentarily lost power through a lean cut. The wooden propeller's low inertia associated with the aircraft's low air speed may have caused the engine to almost stop, further delaying the power response.

"By the time the instructor took over, the air speed probably reduced rapidly towards the aircraft's stall speed as a result of the drag generated by the fall flat and the pitch attitude. Whilst the manoeuvres conducted by the instructor late in the approach indicated that the aircraft had not stalled, there was probably insufficient air speed to commit an effective flare before landing. The aircraft may have stalled during the flare, causing it to impact the ground in any flat attitude at low speed."

39. The word "caused" (in one other variation) was used twice in that extract. However, as Mr Stray said, it was woven into an overall analysis that concentrated on possible contributions and contributors to the problem, not on definitive findings as to cause. The tribunal ventures to observe that it was this very approach in the occurrence brief that prompted the applicant to seek the preparatory documents. He wanted more specificity with a view to using that material to formulate a cause of legal action. Mr Stray said that a reader of the above report would not divine from it the "real reason" for the accident because BASI had been unable to find evidence to support a conclusive finding.

40. Mr Tsacalos suggested that there might have been evidence for a more definitive report but that someone else in the chain of command at BASI may have had the report changed to produce an open finding. Mr Stray said that, if that did occur, it would reflect the assessment that the evidence for a definite finding was just not there. Mr Stray agreed that there could be different opinions regarding the strength of the evidence present and whether it pointed to a definite finding. However, such a difference of opinion would be resolved by the delegate. The delegate's opinion would be final.

41. Mr Tsacalos put to Mr Stray that surely it is important that the correct cause of an accident is identified. Mr Stray said that the emphasis is less on that than on identifying the correct reasons for an accident.

42. Mr Tsacalos queried whether the investigation into the occurrence had ever been completed. Mr Stray said that it had. If it had not been, then the occurrence brief would say so.

43. Mr Stray emphasised that he and all ATSB officers operate professionally and in a manner independent of government.

44. Mr Stray informed the tribunal that the ATSB can investigate only about 2% of the occurrences reported to it. The prime requirement is to investigate to ensure the safety of the fare-paying air travelling public.

45. The respondent's representative provided to the tribunal a copy of the disputed documents. Where deletions were in question the deleted passages were identifiable. The disputed documents, and the tribunal's views on exemption status, will now be addressed. It is noted that there is an onus on the respondent in accordance with s 61(1) of the FOI Act to establish that the decision under review was justified.

46. Folio 1 is described as a BASI e-mail containing opinions expressed in the course of investigations and contact details for a certain individual. Exemption of the document in full is sought under three sections of the FOI Act. Consideration of the unexpurgated version of this document shows that the decision-makers have resolved that none of the early reports about there having been an occurrence should be released and that identification of the pilot, aircraft owner and operator and investigator's "interim opinion" (T1/3) should be suppressed. The tribunal notes that these details do not appear in the occurrence brief (ex A3). The tribunal accepts that the applicant would know the identity of the operator of the aircraft and possibly the owner of the aircraft and the pilot. However, disclosure to the requester is disclosure to the world at large in that the requester is not restricted as regards the use he may make of the information once it is disclosed. In relation to the claimed exemptions, the tribunal will consider each exemption and make findings. This will set the scene for the findings related to subsequent documents.

47. In relation to the internal working documents exemption, the tribunal has already noted the principles in Re Howard (above) in paragraph 10 above. In ex R1 the respondent particularised these in the current context:

"17 Stated shortly, the respondent's general view that release of documents is contrary to the public interest in this case is based on concerns that the release of such information:

* would be prone to inappropriate use, to attribute blame for or liability in relation to accidents contrary to the object stated in section 19CA of the ANA.

* will inhibit the future disclosure of information to the ATSB in the cause of carrying out such investigations."

48. The tribunal has referred to the Attorney-General's Department FOI Memorandum No 98 ("the FOI memorandum"), which summarises the Attorney-General's Department's preferred approach in FOI matters based on statute, decided cases and best practice public administration principles. While the FOI memorandum is not binding on an agency or on the tribunal, it serves as an authoritative statement of government policy on the proper administration of the FOI Act by an agency. Some extracts from that source relating to internal working documents are instructive:

[7.1.3] ...While the exemption is designed to protect deliberative process documents in appropriate cases, it is only where on balance their disclosure would be contrary to the public interest that they are exempt: It is not necessary for a decision maker to be satisfied that disclosure is in the public interest (Re Burns and Australian National University (D26), and Re Corr and Department of Prime Minister and Cabinet (D340)). Neither is it sufficient that there is little public interest. The test is whether disclosure would be contrary to the public interest (Re Sutherland Shire Council and DISR and DOFA (D499)). There is no presumption that deliberative process material is exempt.

7.2 Deliberative processes and functions of an agency, Minister or the Government

7.2.1 The deliberative processes of an agency, a Minister or the Government are the thinking, reflecting, deliberating, consultation and recommendation that occur prior to a decision, or before or whilst undertaking a course of action. They are an agency's or Minister's thinking processes involving weighing up or evaluating competing arguments or considerations that may have a bearing on a course of action, decision or proposal (Re Waterford and Department of the Treasury (No.2) (D18.1), frequently endorsed by the AAT and the courts since then). They are concerned with both policy-making processes and non-policy decision-making processes involved in agency, ministerial or governmental functions (Re Murtagh and Commissioner of Taxation (D27) and Re Reith and Attorney-General's Department (D167)).

7.2.4 The functions of an agency are the tasks it is required to perform, eg. the complaints determination functions of the Ombudsman or the Human Rights and Equal Opportunity Commission. They do not include purely procedural administrative functions not involving deliberation, eg. a telephone call not related to the determination of a complaint (Re VXF and Human Rights and Equal Opportunity Commission (D234)) or management documents created on a day to day basis in the functioning of an agency (Re Subramanian and Refugee Review Tribunal (D396)). Administrative material merely incidental to an agency's thinking processes is not deliberative process material.

7.3.1 Section 36 does not apply to purely factual material (s 36(5)). The question whether any of the contents of a document are purely factual material should logically be decided before addressing the public interest issue. The purpose of the exception to s 36(1) is basically to allow the release (without the need to refer to the balance of the public interest) of factual material taken into account in decision making that does not reveal thinking processes. (This is in accordance with the democratic objects of the Act, including assisting participation in decision making.)

7.3.3 A commonsense approach should be taken to the task of characterising matter as factual or otherwise, according to its substance (ie. its substantive nature or character) rather than semantics (ie. merely by reference to the particular terms in which it is couched). It is necessary to have regard to both the content of the document and the context forming part of the deliberative processes (Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (D384)). Material which contains elements of judgment or opinion concerning purely factual matters may still be capable, depending on its context and its purpose in that context, of properly being characterised as merely factual matter (Re Chapman and Minister for ATSI (D384))(Re Hudson and Department of the Premier, Economic and Trade Development).

7.3.4 Material of a factual nature is not information of a purely factual nature if that material would reveal deliberation that has taken place in the course of the deliberative process involved in the functions of an agency (Re Swiss Aluminium and Department of Trade (D120)). A distinction can be made between factual material which is investigative in character and contains findings of fact, and, on the other hand, opinion, advice or recommendation which forms part of the deliberative process (Re Harris and Australian Broadcasting Corporation (D10.3)).

7.4.1 Reports of scientific or technical experts

7.4.1.1 Section 36(6)(a) provides that reports of such experts, whether employed within an agency or not, and including reports expressing their views on scientific or technical matters, are not subject to s 36(1). This provision has been narrowly confined by the courts and the AAT, so that, for example, a report by a legal consultant into the affairs of the ABC's Legal Branch (Harris and Australian Broadcasting Corporation (D10.3)), or a report by an economist (Re Waterford and the Treasurer (No 2) (D18.1), were held not to be reports of scientific or technical experts. In Harris (No 1), Beaumont J said that the phrase technical experts was intended to describe experts in the mechanical arts and applied sciences generally. This approach has not been widened since then, despite criticism by some commentators.

7.5.1 Paragraphs 1.6.3.1 - 1.6.3.3.1 deal with the public interest concept and the balancing process involved in making a decision concerning the public interest. The examples of public interest factors that would favour disclosure listed in paragraph 7.6 are relevant to the balancing process that is usually required when this exemption is claimed.

7.5.2 Although the public interest test in s 36(1) is an open one in the sense that the provision does not incorporate a defined harm to the public interest which is to be balanced against public interest factors favouring disclosure, in broad terms it may be said that it is concerned with protection against prejudice to the ordinary business of government (Mason J in Commonwealth v John Fairfax Pty Ltd in a non-FOI context). Underlying all the relevant public interest factors that could be invoked against disclosure under this exemption provision is the need to consider the extent to which disclosure of the documents would be likely to impede or have an adverse effect upon the official administration of the agency concerned (or the performance of functions of a Minister or the Government as a whole) (Re Lianos and Department of Social Security, (D52)). Nonetheless, the exemption will only apply where those effects are not outweighed by public interest factors favouring disclosure.

7.5.3 The effect of the public interest test in relation to deliberative process documents has been a contentious area since the introduction of FOI laws in Australia from the early 1980s. The views of the AAT and other review bodies have evolved, as was expected from the outset by its framers and early interpreters (see eg. the comments of Deputy President McDonald in Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (D384)).

7.5.4 Examples of public interest claims which have been consistently rejected by the AAT in the absence of special circumstances and clear evidence include:

* Bureaucratic advice to Ministers should be protected from disclosure because it may tend to circumscribe the free expression of opinion if public servants felt that their opinions may be opened up to public scrutiny at a later date...'

* Disclosure of communications between senior officials and the Minister would be contrary to public interest in view of the on-going nature of the dispute and the fact that the strategies developed by the government could come into play in the future.

* Disclosure of a document recording the substance of a discussion that occurred at a high level involving sensitive issues would be contrary to the public interest because officers may feel some reluctance in the future to record issues that are sensitive in the sense that the matters recorded are neither final nor conclusive not necessarily reflective of the nature and content of the final decision that was or might be made.

* Disclosure would disclose views in draft documents which were superseded in later and final versions. There is a need to guard against the potential for a mistaken belief that the documents contain final views.

* Disclosure would add little if anything to public knowledge of a matter which has had considerable scrutiny through a public process, there is little if any, public interest in its disclosure.

* The higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed';

* Disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest;

* Disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest;

* Disclosure which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest;

7.5.5 Under s 36(7), the public interest grounds both those in favour of non disclosure and those favouring disclosure, on which a decision to exempt a document under s 36 has been made must be included in an agency's statement of reasons under s 26 of the FOI Act (Re Burns, (D26) and Re Kamminga, (D290)).

7.6.1 The following public interest factors have been provided in order to assist decision-makers, but they are in no way prescriptive or exhaustive. It is important that decision-makers consider the particular circumstances of the request and those factors which are specific to the facts at hand, as the relevant public interest factors will vary from case to case. It is important to remember that the categories of public interest are not closed (D v National Society for the Prevention of Cruelty to Children).

* it will always be relevant to consider the general public interest in government-held information being accessible, and this in itself may be enough to outweigh an exemption claim that is not strongly established on the facts (Arnold v Queensland (D189)). Applying this factor in the balancing process is far more than a formality. A decision maker must weigh the degree of impairment of the democratic objectives of the Act resulting from non-disclosure of the specific documents against the specific adverse effects of disclosure on the governmental or other interests protected by the exemption. Release, for example, of deliberative process documents will often enhance the democratic process, and that should be given serious weight in considering whether the adverse effects of release should lead to the documents being withheld;

* making the public better informed and promoting discussion of public affairs (Commonwealth of Australia v John Fairfax & Sons Limited);

* that there is a serious interest of the community in an issue dealt with in the documents sought, and it is not a matter of mere curiosity;

* where disclosure of a document would disclose the reasons for a decision, thus enhancing scrutiny of government decision making processes and improving accountability and participation;

* a public interest in a person having a right of access to their personal records or to documents containing decisions which affect them;

* contributing to the public's right to participate in and influence the processes of government decision-making and policy formulation on an issue of concern to them, whether or not they choose to exercise the right;

* where disclosure would contribute to adequate debate on a matter of public concern, particularly where some of the material in the documents is already public knowledge and disclosure would complete the picture of what is known about a matter;

* where the sensitivity of the material has diminished over time;

* where the information will assist in reaching a valid conclusion for publication;

* where disclosure would reveal whether or not a there had been a proper investigation of a matter. It has been held to be in the public interest to expose the way an agency establishes its disciplinary tribunals and chooses personnel for them (Re Marr and Telstra Corporation Ltd, (D320));

* where disclosure would contribute to public scrutiny of environmental consequences of proposed projects and the proper assessment and management of those consequences;

* disclosure of documents relating to litigation in the High Court against the Northern Land Council (NLC), finally determined by the High Court in Commonwealth of Australia v Northern Land Council was held not to be contrary to the public interest, as it could have no effect on future NLC or other litigation, and there was no public detriment in disclosing litigation tactics considered but not adopted (Re Corr and Department of Prime Minister and Cabinet (D340)).

* premature release of an incomplete and provisional report into the functioning of the ABC's Legal Branch, which could have created a misleading and perhaps unfair impression on readers not having the benefit of hearing the other side (Harris v Australian Broadcasting Corporation (No 1) (D10.1); see also Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs);

* disclosure of methodology for identifying schools for closure, including enrolment and cost projections, which could have created expectations about future closures resulting in adverse effects on some existing schools (Re Weetangera Action Group and Australian Capital Territory Department of Education and the Arts (D286.1));

* a strong public interest in a stable teaching service which could be disrupted by disturbance of the criteria for the handling and release of selection documents (Re Barkhordar and Australian Capital Territory Schools Authority (1987) 12 ALD 332 (D172));

* in particular cases, there may be a public interest in non-disclosure where reasons for a decision are not fully disclosed in the documents sought (Re Howard and Treasurer of the Commonwealth (D60), Re Weetangera (D286.1)). However, this ground should be used sparingly, since it is often open to an agency to release the real ground for decision without damage to governmental interests, and the democratic objects of the Act will tend towards that outcome;

* prejudice to negotiations between the Commonwealth and a State would constitute a public interest ground for non-disclosure (Re Rae and Department of Prime Minister and Cabinet (D101));

* disclosure of co-ordination comments and other documents relating to the Australia Card proposal and which, while closely connected to the Cabinet process, did not constitute Cabinet documents under s 34(1), was held to be contrary to the public interest because, having regard to the documents, their disclosure would have breached the confidentiality applying to the deliberations and processes of Cabinet (Re Porter and Department of Community Services and Health (D214)) and Re Sutherland Shire Council and Department of Industry, Science and Resources (D499);

* disclosure of information which revealed management weaknesses and remedial action in the ABSTUDY program was held contrary to the public interest, although the reasons for that finding (eg. disclosure would assist future fraud) were not stated by the AAT (Re Kanak and Department of Education, Employment and Training (D375));

* disclosure of communications between senior officials and the Minister for Health and between the Commonwealth and NSW, concerning the doctors' strike of 1985, was held contrary to the public interest in view of the ongoing nature of the dispute and the fact that the strategies developed by the Government could come into play in the future (Re Hyland and Department of Health (D152));

* a claim that disclosure would reveal a matter about which the applicant had no suspicions did not constitute a public interest factor against disclosure (Re Lordsvale F Finance Limited (No 2) and Department of Treasury (D118);

* disclosure of a document recording the substance of a discussion that occurred at a high level involving sensitive issues between the Commonwealth and the Victorian State Government in respect of public sector superannuation arrangements was held to be contrary to the public interest because officers may feel some reluctance in the future to record issues that are sensitive in the sense that the matters recorded are neither final or conclusive, nor necessarily reflective of the nature and content of the final decision that was or might be made (McGarvin and Australian Prudential Regulation Authority (D428)).

49. As noted above in paragraph 10, the respondent argued that s 36 applied in this instance because release would see the documents used for the attribution of blame and would inhibit third party disclosure of air safety information in the future. The tribunal has reservations in accepting these arguments in relation to folio 1. Mr Tsacalos argued validly that the ANA in s 19CC (see paragraph 23 above) permits the Director to compel a person to co-operate with the ATSB by providing answers to questions relating to matters relevant to an investigation and to provide the ATSB with documents or other things relevant to an investigation. Mr Stray, as discussed above, explained to the tribunal that this compulsion process produces high quality material when used. It is therefore not necessary that access to a document such as folio 1 must be denied in order to ensure that investigators have access to high quality, relevant information and materials.

50. So far as the inappropriate use in matters of blame and liability are concerned, the tribunal does not regard folio 1 as posing any such risks provided that the second sentence in the paragraph "Just to ..." is deleted in accordance with s 22 of the FOI Act. The rest of the content is too factual and too early in the process to be of any use for such purposes. The tribunal therefore finds that the exemption based on s 36 of the FOI Act stands only to the extent that one sentence should be deleted.

51. Considerable attention was devoted to Annex 13 of the Chicago Convention and to the ICAO Assembly Resolution (paragraph 17 above). The tribunal makes the following observations about the impact of the ICAO instruments on the instant case:

(a) The tribunal does not accept the submissions of Mr Tsacalos that the tribunal should decide this application on the basis of public interest considerations as they were presented by ICAO in 1997 and not in 1999 as per the ICAO Assembly Resolution. The ICAO documents are not directly applicable as Australian domestic law. They are legitimate points of reference under s 15AB(2)(d) of the Acts Interpretation Act 1901 to assist where an Australian statutory provision is ambiguous but do not affect individuals in Australia except through domestic laws such as the ANA enacted to make them operate domestically. The relevant provisions of the ANA were enacted in 1995 and were not amended after the more recent ICAO resolution. The ICAO resolution also did no more than reiterate what had long been ICAO policy. The tribunal does not see that the applicant is in any way disadvantaged if reference is permitted to the recent ICAO resolution.

(b) So far as the respondent's arguments are concerned, the tribunal considers that ICAO's position reflects two interlocking propositions. The first is that it is vitally important for air safety that occurrences are fully investigated and any lessons to be learned are discovered and acted upon. The second proposition is that the free flow of information to the ATSB and similar bodies is crucial to the first proposition. However, the tribunal's view, based on Mr Stray's evidence, is that in Australia the ANA, by including effective powers to compel the provision of information, has effectively guaranteed the free flow of information to the ATSB regardless of later use that may be made of that information, and that the ATSB is thereby able to conduct effective investigations.

52. In considering s 40 of the FOI Act relating to certain operations of agencies, the tribunal accepted the respondent's suggestion that the ATSB's air safety investigations are a form of "tests, examinations or audits" carried out by the ATSB. The respondent in its evidence again cited the difficulty obtaining co-operation from third parties if their information can be seen to have contributed to the drafting of documents released under the FOI Act. It was suggested that this is partly because the contributors of information might be identifiable. The tribunal again has problems with these arguments. The argument concerning reluctant co-operation has already been dealt with in relation to s 36 of the FOI Act. The tribunal regards s 19CC of the ANA as a satisfactory response to that objection. On the matter of identity and identification, the tribunal would see that as a matter for s 41 of the FOI Act, and an objection best met by deletion of material in accordance with s 22 of the FOI Act.

53. So far as the exemption based on personal information is concerned in s 41 of the FOI Act, the tribunal identified several potential such elements in folio 1:

* The identity of a person described as a "C of R".

54. The FOI memorandum is instructive on this exemption:

12.2.1 There is no doubt that the term personal information is a very wide one (see Re Hittich and Department of Health Housing and Community Services (D317)). The Australian Law Reform Commission in its final report on Privacy (1983, Vol.2, p.82) stated: Any information about a natural person should be regarded as being personal information.

12.2.2 There are four ingredients to personal information (see definition s 4(1) FOI Act and s 6(1) Privacy Act):

(i) it relates to only a natural person ie. an individual not a corporation, trust or body politic;

(ii) the information must say something about the individual;

(iii) the information may be in the form of an opinion, it may be true or untrue, and it may form part of a database; and

(iv) the individual's identity is known or ought reasonably be able to be ascertained using the information in the document.

12.2.3 Ingredient one requires that to be personal information it must relate to an individual. An individual is a flesh and blood natural person not a legal person which includes corporations, trusts, bodies politic, (states and foreign governments) and incorporated associations (s 22, Acts Interpretation Act 1901).

12.2.4 Ingredient two is the requirement that the information be about an individual, which means that it must convey some information about the person: it is not enough that a person be identified. For example, use of a name, signature, or phone number of a person appearing in a context that conveys no information about the person (see eg Veale and Town of Bassenden; and see definitions of about referred to in Re Collie and Deputy Commissioner of Taxation (D398)). However, if the name or signature occurs in a context that will tell something about the individual, it will be personal information, eg. the name appears on a list of recipients of approvals under legislation. Again, information only about a company with which a person is otherwise known to be associated will not be personal information about that person.

12.2.5 Ingredient three is that the individual is identified in the information (eg. name with address, position or telephone number) or is reasonably able to be identified (eg. an address, listed telephone number, description of work, position or home, sufficient to be able to readily identify the individual). The inquiry is not restricted to the actual information in the document and would include other information known more widely about the individual which would allow it to be accepted that the information in the document is about that individual. The inquiry may extend to other information in the public arena about the individual that would allow it to be concluded that the information in the document is about that individual (see Re Morris and Australian Federal Police (D358)).

12.2.6 This is a difficult area as it is not clear by whom the individual has to be able to be identified. The range of possibilities extends from the Australian public at large to the spouse or parent of the individual. There have been no AAT or Court decisions on what is the appropriate test, however it probably lies somewhere in between these two extremes. For example, in Re Sime and Minister for Immigration and Ethnic Affairs (D359), the AAT held that a combination of a document and extrinsic material would enable the identification of the actual solicitor handling a particular case.

12.2.7 Bearing in mind that such a test is to be applied by decision makers in agencies, they need to be able to conclude whether the information in the document together with other known information will allow this individual to be identified. A fair test would seem to be that the individual be identifiable by a reasonably knowledgeable member of the community or a significant section of the community.

12.2.8 Examples of information which have been found to be personal information are:

* A person's telephone number and his or her address (Re Green and Australian and Overseas Telecommunications Corporation (D298); Re Zalcberg and Australian and Overseas Telecommunications Corporation (D295); Re Raisanen and Special Broadcasting Service, (D350));

* Details of a person's ex-partner including name, date of birth, home ownership, receipt of a pension and whether they were co-habiting (Re VXV and Department of Social Security (D293));

* Information about the effect of management practices on individual (unnamed) residents of nursing homes whose identity could be ascertained from the documents (Re Advocacy for the Aged and Department of Community Services and Health, (D285));

* The names of evaluators of drugs and of doctors participating in the trial of certain drugs (Re Hittich and Department of Health, Housing and Community Services and Pfizer (D317));

* Work performance and vocational competence of a former army major (Re Warren and the Department of Defence (D299));

* The identity of the foreign skills recognition reader who assessed the applicant's Indian University PhD thesis (Re Nathan and Department of Employment, Education and Training , (D315));

* Applications of successful applicants for positions on the Refugee Review Tribunal and lists of referees (Re Huttner and Department of Immigration and Ethnic Affairs (D362 and D367));

* A random sample of examination responses where the identity of students could be ascertained from the papers, by means of the appearance of student numbers and candidates' handwriting (Re Redfern and University of Canberra (D364));

* Names of dissenting shareholders in company take overs, on lists of unclaimed moneys held in an ASIC data base (Re Evans and Australian Securities and Investment Commission (D445));

* Information concerning a police investigation and prosecution of an individual (Re Scholes and Australian Federal Police (D390));

* Allegations of improper behaviour by a barrister denied (Re Marr and Telstra (D404)); and

* Information concerning a change of script writers for the program Brides of Christ, screened on ABC (Re Keane and Australian Broadcasting Corporation (D335)).

12.2.9 Decisions by the Information Commissioner under the WA FOI Act (the only other Australian FOI Act to use the term personal information) include the following within the concept of personal information:

* Letters by a shire council about claims by the FOI applicant for compensation for damage to their home caused by a nearby council building project (Hesse and Shire of Mundaring);

* Name of third parties involved in the incarceration of a patient in a psychiatric hospital (Re A and Heathcote Hospital);

* The name and signature revealing an employment relationship (Re Kobelke and Minister for Planning);

* The name, position and opinion of a former Town Clerk on matters within his responsibility as an officer of the Council (Veale and Town of Bassenden);

* Names and addresses, gender, employment and family connections of tenants in a residential complex where that information would enable the applicant to identify those individuals (Re Hayes and the State Housing Commission of Western Australia);

* Handwritten documents, where the identity of the person in whose hand the document is written is ascertainable. (This will usually require the applicant to have personal knowledge of the document's author or be able to recognise the handwriting because of some contact or relationship with the writer.) (Ross v City of Perth).

12.2.10 Several decisions have provided guidance on information which is not personal information including:

* Where there is no mention of the applicant's name or any other characteristics which could identify the applicant (Re Burkala and the City of Belmont);

* A company was not an individual who could have personal information (Re Kobelke and Minister for Planning).

12.3.1 Having determined that the documents contain personal information about an individual other than the requestor s 41(2) provides that the exemption does not apply where the personal information is only about the requestor. However s 4l(2) will not operate where the information is about the requestor and another individual ie. joint personal information.

12.3.2 A decision to grant access must not be made unless, where it is reasonably practicable to do so, the agency has given the potentially affected individual a reasonable opportunity to contend that the information is exempt under s 41(1). There are four aspects to this requirement:

12.3.2.1 Where reasonably practicable to do so. This includes not only where the individual's whereabouts cannot be ascertained using reasonable effort, but also where consultation cannot be undertaken in the time limited (60 days where properly notified under s 15(6)) or the volume of work associated is too great. The latter is particularly relevant if the information is innocuous and its release unlikely to be unreasonable.

12.3.2.2 A reasonable opportunity to contend. Agencies must give the individual consulted sufficient information about the documents to allow the individual to make such a contention. This will usually, but not always, require that a copy of the information be shown to the individual, who is to be given a reasonable time to respond. If a document contains information about other persons, deletions may be necessary to protect their privacy. Where there is joint personal information, consultation will often be needed with the other person concerned. (And see paras 6.29-6.33 of New FOI Memo No. 19 - Preliminary and Procedural Points, for some general points relating to consultation.) A failure to respond in the time stated should usually be followed up with a reminder.

12.3.2.3 Contend that the document is exempt under s 41(1). The individual's right to make a contention is restricted to s 41(1) ie. that disclosure would be unreasonable (Re Mitsubishi Motors Australia Ltd v Department of Transport (D156)) and Re McKinnon and Powell and Department of Immigration and Ethnic Affairs (D369)).

12.3.2.4 The agency must take into account any contention of unreasonable disclosure under s 41(1) but the agency must still make its own decision (Searle Australia Pty Ltd v Public Interest Advocacy Centre and Department of Community Services and Health, (D294)). The individual consulted has no power of veto. However, the objection to disclosure is always a relevant consideration.

12.3.3 Although s 27A does not require consultation unless the agency is inclined to disclose the personal information, agencies are advised to consult in any event. Consultation will provide information to assist the making of an objective decision and pre-empt criticism from an external reviewer (Re Scholes and Australian Federal Police (D390)). Consultation will avoid later embarrassment should the individual have no objection to disclosure and allows further time (thirty days) to make a decision (s 15(6)). No extension of time is available at internal review. In addition should the individual object to disclosure this is a factor which with others, may be sufficient to constitute unreasonable disclosure.

12.3.4 Section 27A (1A) provides limited circumstances where consultation is not required because the person consulted could not reasonably contend disclosure would be unreasonable. In deciding whether or not to consult the agency is required to consider relevant matters including whether the individual and the information are in the public domain. Where there is any doubt the agency should consult.

12.3.5 Further detailed guidance on consultation appears in FOI Memo No. 94.

12.4.1 The second part of s 41(1) exemption requires a finding that disclosure would be unreasonable. Section 41(1) is designed to prevent the unreasonable invasion of the privacy of third parties (Deputy President Hall in Re Chandra and Minister for Immigration and Ethnic Affairs (D33)). There is no assumption in s 41(1) that all personal information is necessarily exempt (see Colakovski v Australian Telecommunications Corporation (D273) and Scholes and Australian Federal Police (390)). Rather, it protects only that personal information it would be unreasonable to disclose.

12.4.2 Public interest considerations are at the core of the term unreasonable (Colakovski v Australian Telecommunications Corporation (D273)). However the test is unreasonableness not public interest although it is referred to as a modified public interest test. The application of the test involves a consideration of all the factors relevant in a particular case and a balancing of all legitimate interests (Wiseman v. Commonwealth, (D251)); the public interest in the privacy of the third party (see Colakovski (D273)) against the public interest factors which may favour disclosure, including the general public interest in the disclosure of government-held information (see Re Chandra and Minister for Immigration and Ethnic Affairs (D33)).

12.4.3 The most felicitous statement of the factors to be considered can be found in Re Chandra and Minister for Immigration and Ethnic Affairs (D33). The test has been adopted on numerous occasions.

* the nature of the information, eg. not bland, common place information, disclosure of which holds no serious consequences (Re Z and Australian Taxation Office (D35); Re Strang and Department of Immigration and Ethnic Affairs (D352)). But there is no need to show some particular expected damage to the third party as a result of disclosure, such as 'some particular unfairness, embarrassment or hardship' that would affect the person as a result of disclosure (Heerey J in Colakovski (D273)). This will include a consideration of the context in which it appears, for example, occurrence of a person's name in a police file (Re Anderson and Australian Federal Police (D137));

* the circumstances in which the information was obtained, eg. obtained under statutory compulsion or obtained in confidence (Re Lianos and Department of Social Security (D52)); (Re Timmins and National Media Liaison Service (D105)). The fact that information had been gathered covertly about a third party would add weight to its disclosure being unreasonable, so long as it was sensitive in nature;

* the current relevance of the information (ie. whether the information is out of date (Wiseman and Defence Service Homes (D208));

* the stated object of the legislation in s3 to facilitate and promote the disclosure of information (Arnold v Queensland (D189); Re Booker and Department of Social Security (D258));

* the extent to which the person concerned is a public figure and the relationship of the information to that public status (Re Anderson and Australian Federal Police (D137));

* the extent to which the information is already a matter of public knowledge, or is known by or readily available to the person seeking access (Re Z and Australian Taxation Office (D35); Re Lander and Department of Social Security (D119));

* whether there was any expectation of confidentiality (Re Redfern and University of Canberra, (D364)) or whether the information is quite innocuous (Re Timmins and National Media Liaison Service); and

* whether the information would shed light on the workings of government (Colakovski v Australian Telecommunications Corporation (D273)). However, disclosure need not do more than suggest there is an issue to be explored concerning the adequacy of Government action or inaction; resultant public discussion could facilitate the accountability of government (Re Hanbury-Sparrow and Department of Foreign Affairs and Trade (D413)). This is unexceptionable if taken to mean only that the relevance of the information to the affairs of government is an appropriate public interest consideration to balance against an adverse effect on privacy interests.

12.4.5 Cases where disclosure was found not to be unreasonable include:

* the names and addresses of subscribers to government news releases, speeches and reports (Re Timmins and National Media Liaison Service (D105)) ;

* the applications of successful applicants for APS positions (Re Dyki and Commissioner of Taxation) (D259));

* the association between the applicant and the named third parties which was public knowledge (Re Mickelberg and Australian Federal Police (D31));

* Information (about her daughter) which was already well known to the applicant (White and Department of Education, Training and Youth Affairs (D461)); and

* The names of dissenting shareholders whose unclaimed monies were held by ASIC (Re Evans and Australian Securities and Investments Commission (D445)).

55. Excepting the identity of the operator/owner, who is a non-natural person, the tribunal considers these matters to be personal information in accordance with s 41 of the FOI Act but that this problem can be solved by deleting these parts of the document. The identity of the owner/operator will not be suppressed because s 41 of the FOI Act does not apply to a non-natural person and the other exemptions do not dictate that the owner/operator's identity must be suppressed.

56. The tribunal sets aside the decision under review as it applies to folio 1 and decides instead that access is to be given to folio 1 with the deletions identified in paragraphs 50 and 54 above. Access is to be available to Mr Schlegel and/or his representatives.

57. This folio was provided to the requester at the internal review stage but with deletions. This was the "Accident/Incident Initial Notification Form". A copy was provided with deletions of the names of the aircraft operator, aircraft owner, pilot and investigator's interim opinion.

58. The tribunal agrees with the decision made by the respondent in relation to the pilot and the interim opinion. The tribunal considers that access to the name of the owner/operator should be given. The document is similar in content in many ways to folio 1. The tribunal adopts the reasons it gave in relation to folio 1 for its decision regarding folio 2.

59. The tribunal sets aside the decision under review as it relates to folio 2 and decides instead that the applicant is to be granted access to the document with only the name of the pilot and the investigator's interim opinion deleted.

60. These are a record of the aircraft's flight crew qualifications. The respondent considered these to be personal information and thus exempt under s 41 of the FOI Act. According to the applicant's statement of facts and contentions (ex A1/3) some such information was disclosed and the applicant cannot understand why this document is regarded as exempt. The tribunal has not seen the other documents to which the applicant refers so it cannot comment. However, this material is clearly personal information under the Act (see paragraph 19 above) in that it is information about any flight crew member referred to. The individual's identity is clear if the document is disclosed in full. However, if the address block on folio 6 is deleted, the tribunal considers that the individual would not be identifiable by a reasonably knowledgeable member of the community or a significant section of the community. This leans in favour of disclosure. However, against that is the likelihood that a crew member thought he or she was disclosing the information in confidence.

61. The FOI Act refers also in s 27A to the need for a decision-maker to consult with the affected individual if it appears that the affected individual might reasonably wish to contend that the document is exempt under s 41 of the FOI Act. No such consultation appears to have occurred in relation to folios 5 - 6. The tribunal notes that s 27A does not require consultation at the tribunal level. The tribunal draws some support from Deputy President Forgie's decision in Re Collie and Deputy Commissioner of Taxation [1997] AATA 713; (1997) 45 ALD 556, 565-566.

62. Section 41(1) of the FOI Act requires that a decision-maker must find that disclosure of the personal information would be unreasonable. The tribunal does not consider that disclosure in this instance would be unreasonable. There is a keen public interest in knowing that crew on passenger aircraft have appropriate qualifications, especially where an aircraft with that crew member has crashed.

63. The tribunal sets aside the decision under review as it applies to folios 5 - 6 and decides instead that the applicant is to be given access to folios 5 - 6 following deletion of the address block on folio 6.

64. These folios contain the Chipmunk handling notes which the respondent informed the tribunal it can now release, having received permission from the source of the material. The respondent can do this under s 26(2) of the AAT Act only if the applicant and the tribunal consent to this alteration of the decision under review.

65. The applicant registered no objection to this change at the hearing and so the tribunal understood that the applicant consented to the change. The tribunal considers the development positive and consents to the change.

66. The tribunal consents to the respondent's proposed alteration of the decision under review such that Mr Schlegel is to be granted access to folios 7 - 24.

67. These folios record feedback from interview work done by an investigator. The tribunal considers that s 36 of the FOI Act applies to these folios and that they are exempt. The reasoning is that of Davies J in Re Howard (above). The tribunal considers that disclosure of this document would lead to confusion and unnecessary debate.

68. The tribunal affirms the decision under review in respect of folios 28 - 30.

69. This is a statement by a witness to the aircraft accident. The tribunal considers that this document is exempt for the same reasons as folios 28 - 30.

70. The tribunal affirms the decision under review in respect of folios 31 - 32.

71. This is an air safety incident report form completed by the pilot. The tribunal considers that this document is exempt for the same reasons as folios 28 - 30.

72. The tribunal affirms the decision under review in respect of folio 33.

73. This is an investigator's note relating to his investigation of the accident. The tribunal considers that this document is exempt for the same reasons as folios 28 - 30.

74. The tribunal affirms the decision under review in respect of folios 43 - 46.

75. This is a fax confirmation form detailing that a fax message of a certain length was sent by BASI to a certain telephone number at a certain time on a certain date. The exemption claimed is based on s 41 of the Act in that the document contains the fax number of an individual. The document was provided with the serial number of the fax deleted and the receiving fax telephone number deleted. The FOI memorandum in paragraph 12.2.4 (see paragraph 54 above) states that the information must convey some information about the person if s 41 is to apply. "[I]t is not enough that a person be identified. For example, use of a name, signature, or phone number of a person in a context that conveys no information about the person ..." The authority cited for that proposition is Re Veale and Town of Bassendean [1994] WAICmr 4 where the Commissioner said:

"35. In my view, where the individual is an employee in state or local government, unless disclosure of the document in question would reveal additional private information about that individual, other than his or her name or position in an agency, the public interest in protecting the privacy of that person is outweighed by the public interest in disclosure provided by the FOI Act itself. At the time of this decision, no details had been prescribed for the purpose of attracting the limitations in sub-clauses (3) and (4). I do not believe that it was the intention of Parliament, to provide anonymity for public sector employees each time the name of one of them is mentioned in a file. Such a result would be contrary to the stated aims of the Act and would not assist in promoting openness or accountability. Until such time as details are prescribed by regulation for the purposes of sub-clauses (3) and (4) I find that disclosure of the names of public sector employees would, on balance, be in the public interest, where this can be done without infringing the privacy of those individuals.

"36. In this instance, the document discloses no more than the name, position and opinion of the former Town Clerk on matters within his responsibility as an officer of the Council. The disclosure of this information, though inherently "personal", does not infringe on the privacy of that individual sufficiently to justify protection under the exemption claimed and disclosure of this information therefore would, on balance, be in the public interest."

76. The structure of s 32 of the Western Australian Freedom of Information Act 1992 ("the WA Act") differs from s 41 of the FOI Act. It reads:

32. (1) This section applies to a document that contains personal information about an individual (the "third party" ) other than the applicant.

(2) The agency is not to give access to a document to which this section applies unless the agency has taken such steps as are reasonably practicable to obtain the views of --

(b) if the third party is dead, his or her closest relative,

as to whether the document contains matter that is exempt matter under clause 3 of Schedule 1.

(3) If the third party, or the closest relative of a dead third party, is a child who has not turned 16 and who, in the agency's opinion, does not have the capacity to appreciate the circumstances and make a mature judgment as to the nature and significance of the document, the views of the child's guardian, or the person who has custody or care and control of the child, may be obtained for the purposes of subsection (2).

(4) If the third party, or the closest relative of a dead third party, is an intellectually handicapped person, the views of the person's closest relative or guardian may be obtained for the purposes of subsection (2).

(5) Where the views of a person are obtained under subsection (2)(b) that person is to be regarded as being the third party for the purposes of Division 5 and Part 4.

(6) This section does not apply if access is given to a copy of the document from which the personal information referred to in subsection (1) has been deleted under section 24.

77. The Commissioner's decision in Re Veale (above) is interesting in that s 32 of the WA Act seems to impose an absolute prohibition on the release of personal information in the absence of authority from the affected person or that person's representative. Despite that, the Commissioner was prepared to read into s 32 an implied exception, meaning that there is no exemption from disclosure, where the information does no more than name a person and identify his or position within a public agency. Folio 47 does not go even that far in the way of identification of any person.

78. The tribunal finds that folio 47 is not exempt in accordance with s 41 of the FOI Act. The tribunal therefore sets aside the decision under review in relation to folio 47 and decides that access is to be granted to the applicant in respect of this folio with no deletions.

79. This document is the same as folio 48 but was created on a different day. The same analysis applies as applied to folio 47. The tribunal therefore sets aside the decision under review in relation to folio 48 and decides that access is to be granted to the applicant in respect of this folio with no deletions.

80. These folios consist of a fax message dated 19 May 1997 to the owner/operator of the aircraft which crashed. An exemption has been claimed on the basis of s 41 of the FOI Act in that the text identifies personal or private information about a person assisting with the investigation. The tribunal sees force in this assessment and, had that been the sole problem, deletions might have resolved that difficulty. However, the tribunal assumes that this document came into the possession of the investigators as it is on the relevant file. The tribunal therefore considers that this document is exempt in accordance with s 36 of the FOI Act for the same reasons as applied above in relation to folios 28 - 30.

81. The tribunal affirms the decision under review as it relates to folios 51 - 52.

82. These folios consist of comments on behalf of the stricken aircraft's owner/operator in relation to an "investigation note" (ie folios 43 - 46, discussed above). The tribunal considers that this document is exempt in accordance with s 36 of the FOI Act for the same reasons as applied above in relation to folios 28 - 30.

83. The tribunal affirms the decision under review as it relates to folios 53 - 55.

84. This is a fax cover sheet. It is from one BASI officer to another. As it stands it identifies those two officers and the identity of the aircraft owner/operator. The version given to the applicant was provided with the identity of the owner/operator deleted. As was discussed above in paragraph 55, s 41 does not protect the identity of the owner/operator from disclosure. The tribunal finds that access to folio 59 should be granted to the applicant without deletions.

85. The tribunal sets aside the decision under review to the extent that applies to folio 59. The tribunal substitutes its own decision that access to folio 59 is to be granted to the applicant without deletions.

86. This folio is similar to folios 47 and 48 (see paragraphs 75 - 79 above). Applying here the approach the tribunal adopted in dealing with the earlier folios, the tribunal finds that access should be allowed the applicant in respect of folio 60 without deletions.

87. The tribunal therefore sets aside the decision under review in relation to folio 60 and decides that access is to be granted to the applicant in respect of this folio without deletions.

88. The material in folio 61 for which an exemption is claimed consists of four photographs of the damaged aircraft. Two individuals are shown near the aircraft in the photographs. Section 41 of the FOI Act has been invoked to support the exemption claim. The tribunal accepts that this photographic material may serve to identify certain individuals whose status as persons present on site is unclear. The tribunal considers this material to be in a category different from fax cover sheets because it is not clear that the persons filled certain positions in BASI or any other body. The tribunal considers that it would be unreasonable to disclose information that might serve to identify them.

89. The tribunal affirms the decision under review in relation to folio 61.

90. These folios consist of raw material relevant to the later occurrence report issued to the applicant (ex A3). The tribunal considers that this document is exempt in accordance with s 36 of the FOI Act for the same reasons as applied above in relation to folios 28 - 30.

91. The tribunal affirms the decision under review as it relates to folios 63 - 66.

92. This document identifies the pilot of the stricken aircraft and contains a summary of opinions derived from the investigation. The document was provided with deletions. The tribunal agrees with the respondent that disclosure of the material in this document about the pilot would be an unreasonable disclosure under s 41 of the FOI Act. As regards the content, the tribunal considers that this document is exempt to the extent assessed by the respondent in accordance with s 36 of the FOI Act for the same reasons as applied above in relation to folios 28 - 30.

93. The tribunal affirms the decision under review as it relates to folio 67.

94. This document is part of a draft of the occurrence brief. It identifies the pilot, the owner and the operator of the aircraft. Exemption has been claimed in accordance with ss 40 and 41 of the FOI Act. The document was provided with deletions in respect of the names of the pilot and the owner/operator. The tribunal refers to its comments in paragraph 52 above and considers them relevant here. For reasons already discussed, the tribunal has not accepted the respondent's arguments that s 40 is applicable because, otherwise, persons may not provide the ATSB with information. The ATSB has effective powers to compel the provision of information.

95. In relation to s 41, as already explained, s 41 does not apply to information about non-natural persons. Section 41 does not, therefore, protect the identity of the owner/operator of the aircraft. The tribunal considers, however, that the identity of the pilot should not be disclosed as disclosure would not be reasonable.

96. The tribunal sets aside the decision under review as it applies to folio 70 and substitutes its own decision that the document is to be provided with only the name of the pilot deleted in accordance with s 22 of the FOI Act.

97. This appears to list the recipients of copies of the occurrence brief. Exemption has been sought to protect the identities of the pilot, the aircraft owner and operator. Sections 40 and 41 have been invoked. The document was provided with deletions affecting the name and contact details of the pilot and the owner/operator. The tribunal refers to its comments in paragraph 52 above and considers them relevant here. For reasons already discussed, the tribunal has not accepted the respondent's arguments that s 40 is applicable because, otherwise, persons may not provide the ATSB with information. The ATSB has effective powers to compel the provision of information.

98. In relation to s 41, as already explained, s 41 does not apply to information about non-natural persons. Section 41 does not, therefore, protect the identity of the owner/operator of the aircraft. The tribunal considers, however, that the identity of the pilot should not be disclosed as disclosure would relate to more than his or her name and position and would not be reasonable.

99. The tribunal sets aside the decision under review as it applies to folio 77 and substitutes its own decision that the document is to be provided with only the name and contact details of the pilot deleted in accordance with s 22 of the FOI Act.

100. This is a covering letter sent with the occurrence brief to the pilot on 27 June 1997. Exemption has been claimed in accordance with ss 40 and 41 of the FOI Act. The document was provided with the pilot's name and address deleted. The tribunal refers to its comments in paragraph 52 above and considers them relevant here. For reasons already discussed, the tribunal has not accepted the respondent's arguments that s 40 is applicable because, otherwise, persons may not provide the ATSB with information. The ATSB has effective powers to compel the provision of information.

101. In relation to s 41, the tribunal considers that the identity of the pilot should not be disclosed as disclosure would relate to more than his or her name and position and would not be reasonable. A BASI officer is identified as "contact". For the reasons discussed in paragraphs 75ff above the tribunal does not consider that disclosure of that officer's name would be unreasonable.

102. The tribunal affirms the decision under review in relation to folio 83a.

103. This document is identical to folio 83a except that it is addressed to a person belonging to another organisation. Exemption is claimed under s 41 of the FOI Act. Again, a copy of the letter has been disclosed with only the name and address of the recipient deleted. This is a private individual holding a particular position in an organisation not connected with BASI or the respondent. The tribunal considers that disclosure of this person's identity and contact details would be unreasonable under s 41 of the FOI Act. The BASI contact officer identified in folio 83a is identified in this document also. For reasons given in paragraph 101 above the tribunal considers that that officer's name should not be deleted.

104. The tribunal affirms the decision under review in relation to folio 85a.

105. This document is identical to folio 85a, except that the recipient is a different person from that in the other folio. The tribunal applies the same analysis as in paragraph 103 above.

106. The tribunal affirms the decision under review in relation to folio 85.

107. This document is identical to folios 85a and 85, except that the recipient is a different person from those in the other folios. The tribunal applies the same analysis as in paragraph 103 above.

108. The tribunal affirms the decision under review in relation to folio 87.

109. This is a fax confirmation sheet relating to a fax sent from one part of the ATSB to another. It contains part of folio 6, discussed above in paragraphs 60 - 63 above. The tribunal replicates here the approach adopted in paragraph 63. The tribunal sets aside the decision under review in relation to folio 88 and decides that access is to be granted to the applicant, albeit with deletion of the address block half-way down the page, that deletion being authorised under s 22 of the Act.

110. The tribunal can identify no decision in respect of the file cover which lists the identities of persons in BASI, the ATSB or the respondent agency who have had the file referred to them at various times. It is unclear whether this document has been provided and whether exemptions are claimed in relation to it. The tribunal makes no decision in relation to it as it is not listed in ex R3, the schedule of exempt documents. If it were included, however, the tribunal'' view would have been that access should be granted to the document despite s 41 of the FOI Act. While the document identifies officers in the relevant organisations, it proffers nothing more about them in the nature of personal information.

111. The parties referred the tribunal to several decided cases. In Christoforidis v Cygnet Bulk Carriers SA [2002] FCA 690 the Federal Court of Australia had to consider whether access should be given to documents produced to the court by the ATSB under subpoena. The documents related to records generated in the course of an ATSB investigation into a collision of two ships near Newcastle in 1999. Tamberlin J held that the party who had the subpoena issued should have access to the documents. The judge said in paragraphs 36 and 38:

"36 I am not persuaded from the generalised and speculative material presented by the ATSB, including the matters referred to in the evidence of Mr Alan Stray, that if the material were made available under a strict confidentiality regime there would be any significant detrimental effect which would restrict the availability of information in the future to the extent that this consideration would outweigh the powerful public interest in the Court having full and sufficient information. The Court should not lightly be constrained from performing its functions in the light of full access to all relevant material. If, however, there were clear and express provisions which precluded the Court from adopting such an approach, effect must be given to such provisions. But that is not the present case. If the legislature had intended to apply reg 15 to court proceedings, such as the present, it would have been a simple matter to make that clear. In my opinion, the legislature has not done so.

"38 Accordingly, in the present matter, I do not consider that the material is privileged or within the operation of reg 15 of the Regulations. I therefore consider that the material can be made available by the Court to the parties. However, there may need to be imposed a confidentiality order in relation to such documents and I will hear the parties on the formulation of an appropriate regime order."

112. This authority was advanced partly to cast aspersions on Mr Stray and his evidence. The tribunal regarded Mr Stray as a helpful, knowledgeable and generally moderate witness who did his best to assist the tribunal in an honest and forthright fashion. So far as the approach of the court in Christoforidis (above) was concerned, it was of limited use to the tribunal in this case. This is a case concerning an aircraft incident. The legal regimes as between air and sea accidents are entirely different. Certainly the ANA and its powers of compulsion were not relevant in Christoforidis (above). The court was prepared to allow access to the documents only if relevant confidentiality orders were imposed. The tribunal does not have the power to impose such a restraint on a party who succeeds before it in obtaining access to disputed documents.

113. The next case was In the matter of an application by Fitzhenry as agent for Boeing Company [2002] ACTSC 93 in which the Boeing Company had served subpoenas on the ATSB requiring it to produce to the court documents relating to the investigation of an aircraft crash in Indonesia in 1997. The ATSB successfully sought exemption from having to produce the documents to the court. Miles CJ referred to Annex 13 of the Chicago Convention and to the ANA. However, he was influenced by the array of different nationalities represented amongst the interested parties. He said the following in the course of his reasons for judgment:

"18. It is clear that the State conducting the investigation of the accident or incident in question in the present matter is Indonesia. The State in which the aircraft was registered is Singapore. There is no evidence that the appropriate authority for the administration of justice in Indonesia has determined that the disclosure of the records enumerated in clause 5.12 outweighs the adverse domestic and international impact such action may have on that or any future investigations. It is also clear in my view from the note appearing at the end of par 5.12 that the prohibition on disclosure is aimed particularly at inappropriate use in subsequent judicial proceedings, including civil proceedings in the nature of the claim made in the U.S. District Court against Boeing. It appears therefore that Indonesia is bound, in the absence of a determination in favour of disclosure in that country, not to make available to the U.S. District Court documents in the categories identified in Article 5.12.

"27. In my view, the present matter before me differs from Christoforidis in significant respects. The opinion of Mr Stray (a senior officer of ATSB) that disclosure would have an adverse effect on the ability of ATSB to carry out detailed investigation into aircraft accidents in the future may be speculative in the sense that it is guessing at what might happen. Nevertheless it reflects the policy behind Pt 2A Div 9 of the Air Navigation Act, a policy which may not have been relevant in a case involving a shipping collision. Further, Annex 13 to the Convention reflects a similar policy, to be followed by all States, unless the State conducting the investigation has already published the documents or the appropriate authority for the administration of justice in that State determines that they may be made available.

"33. For the foregoing reasons I am of the view that it has been positively shown that the public interest in the Commonwealth not disclosing the documents in question outweighs the public interest in their production to this Court for the purpose of the proceedings brought against Boeing in the U.S. District Court."

114. The tribunal again finds this authority of only limited use. The context is different, ie court proceedings relating to possible provision of information held by an Australian agency relating to a foreign accident involving a foreign aircraft and intended for use in US proceedings. In addition, Miles CJ appeared not to have had raised before him the evidence the tribunal had as to effectiveness of the ATSB's powers of compulsion.

115. Finally, the tribunal refers to the decision of Davies J in Re Jamieson and Department of Aviation (1983) 5 ALN N300; (AAT 1267, 18 October 1983) where he addressed an argument similar to one raised in this proceeding. This was that an officer in the respondent agency required because of a tribunal decision to allow access to the documents in contention would be in breach of the ANA and liable to a penalty (see paragraph 16 above). Davies J said:

"The FOI Act has introduced a new era with respect to the disclosure of information. In so doing, it may conflict with the terms of many and varied provisions which are found in Federal legislation which limit the disclosure of information. In my opinion, the FOI Act intends that the right of access which it confers will be as wide as possible and therefore that it intends that its provisions will over-ride existing legislative provisions to the extent that such legislative provisions do not protect 'essential public interests'."

116. The FOI memorandum cites Re Actors' Equity Association of Australia and Australian Broadcasting Tribunal (1984) 6 ALD 68 in support of a similar proposition in paragraph 9.1.11.

117. The decision of the tribunal is therefore as follows.

The tribunal affirms the decision under review as it applies to folios 28 - 30, 31 - 32, 33, 43 - 46, 51 - 52, 53 - 55, 61, 63 - 66, 67, 83a, 85a, 85, 87.

The tribunal sets aside the decision under review in relation to the following folios and substitutes its own decision to the stated effect in relation to each folio:

folio 1 - access allowed to folio with deletions described in paragraphs 50 and 53

folio 2 - access allowed to folio with deletions described in paragraph 59

folios 5 - 6 - access allowed with deletion described in paragraph 63

folio 70 - access allowed with deletion described in paragraph 96

folio 77 - access allowed with deletions described in paragraph 99

folio 88 - access allowed with deletion described in paragraph 109

The tribunal consents to the alteration of the decision proposed by the respondent in relation to folios 7 - 24. Access to these folios is permitted to the applicant.

The tribunal suspends the operation of this decision for 30 days to allow the respondent time in which to lodge an appeal to the Federal Court of Australia if that is its wish.

I certify that the 117 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member

Signed: .....................................................................................

Solicitor for the respondent Australian Government Solicitor