IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G189 of 1983 BETWEEN: JENNIFER MAY McDONALD HARRIS Applicant AND: AUSTRALIAN BROADCASTING CORPORATION and KEITH CAMERON MACKRIELL and MICHAEL H. COSBY Respondents CORRIGENDA Amendment to the judgment of his Honour Mr. Justice Beaumont of 4 October, 1983. Qn page 19, third last line after "factual material" ad "or purely factual material". rane D. Chang Associate to Beaumont, J. 28 October, 1983. CATCHHORDS Administrative Law - Judicial Review - Decision to grant access to interim reports under Freedom of Information Act - Allegation that reports are exempt documents within meaning of Act - Exemption as "internal working documents" within meaning of s.36 or otherwise exempt under ss.40 and 43 - Whether disclosure of reports would be contrary to the public interest - Claim that access to the reports should be deferred under s.21(1) - relief limited so as to prevent disclosure of material other than purely factual material. Administrative Decisions (Judicial Review) Act, 1977 s.5 Freedom of Information Act, 1982 ss. 3, 14, 15, 18, 21(1), 27, 36, 40(b), 40(c), 43(c) Ombudsman Act, 1976 s.8(1) JENNIFER MAY McDONALD HARRIS v. AUSTRALIAN BROADCASTING CORPORATION: KEITH CAMERON MACKRIELL: MICHAEL H. COSBY No. G189 of 1983 Beaumont, J. Sydney. 4 October, 1983. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G189 of 1983 BETWEEN ; JENNIFER MAY McDONALD HARRIS Applicant D: AUSTRALTAN BROADCASTING CORPORATION and KEITH CAMERON MACKRIELL and MICHAEL H. COSBY Respondents ORDERS JUDGE MAKING ORDERS: Beaumont, J. DATE ORDERS MADE: 4 October, 1983. WHERE MADE: Sydney. THE COURT ORDERS THAT: l. Order that the decision of the Chairman of the Australian Broadcasting Commission made on or about 29 June, 1983 under the Freedom of Information Act, 1982, deciding to give the third respondent unrestricted access to the first and second interim reports prepared by Mahla L. Pearlman pursuant to the Commission's Terms of Reference in that behalf, be set aside. 2. Direct that the first respondent give the third respondent access to so much of the reports referred to in Order 1 as consists of purely factual material. 3. Make no order as to costs. 4. Reserve general liberty to any party to apply on seven days' notice. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISTON No. G189 of 1983 BETWEEN : JENNIFER MAY MCDONALD HARRIS Applicant AND: AUSTRALIAN BROADCASTING CORPORATION and KEITH CAMERON MACKRIELL and MICHAEL H.COSBY Respondents CORAM: Beaumont, J. DATED: 4 October, 1983. REASONS FOR JUDGMENT This is an application for review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act, 1977. The applicant is head of the legal department of the first nN respondent ("the Corporation") and its principal legal officer. The second respondent is its Acting Managing Director. The third respondent is an officer of the Commission. The background to the application By letter dated 19 November, 1982, the Commonweaith Ombudsman wrote to the Chairman of the Commission, as the Corporation then was, referring to a letter dated 6 October, 1982 he had written to the Chairman on a confidential basis un which he had described in fairly general terms a complaint he had received from an officer of the Commission (apparently not the third respondent) which, for the most part, was about the work of the legai department under the direction of its principal legal officer. After indicating his dissatisfaction with the lack of progress in the matter, the Ombudsman said: "The particular issues arising out of the complaint about the Legal Department can, I believe, at least for present purposes, be described as follows, namely that the Legal Department under the direction of its principal legal officer has, over several years, unreasonably and unjustly: (a) failed in its administrative actions to discharge its proper responsibilities and provide the services it may reasonably be expected or purports to provide to the disadvantage of other 3. activities within the Commission and of those persons or organisations seeking to do business with the Commission; (b) made payments for the performance of legal services outside the - Commission, either without adequate justification or out of proportion to the nature of the services performed; and (ce) made claim to the performance of functions not in fact performed. A further complaint is that senior Management in the Commission has been aware of a highly unsatisfactory position in relation to the internal conduct of legal affairs, but has, in dealing with outside interests, sought to excuse deficiencies on the part of the Legal Department by offering reasons which were either wrong or did not adequately explain the true position." The Ombudsman then gave notice of his intention to undertake a formal investigation pursuant to s.8(1,. of the Ombudsman Act, 1976. He gave particulars of the complaints on which he sought comments from the Commission. By letter dated 13 December, 1982, the General Manager of the Commission forwarded a copy of the Ombudsman's letter to the applicant saying that the Commission had decided that an independent review of the Legal Department should be undertaken and that the President of the Law Society of New South Wales should be requested to nominate a member of the Society to undertake this review which would not only have regard to the matters raised in 4. the Ombudsman's letter of 19 November, 1982 but also would examine the functions and operations of the Legal Department in general. By letter dated 24 December, 1982, the General Manager wrote to the applicant informing her that the Commission had appointed Miss Mahla Pearlman, the immediate past President of the Law Society, to undertake the review; and that the Commission had requested that interim reports be made to the Chairman, with the first such report dealing with those matters raised in the Commonwealth Ombudsman's letter of 19 November, 1982. The applicant was given a copy of the Commission's terms of reference which were as follows: "To review, report upon and: make recommendations concerning the functions and the operation of the Australian Broadcasting Commission's Legal Department generally, but with particular regard to - (a) the matters raised in the Ombudsman's letter of 19 November, 1982 to the Chairman of the Commission; {(b) the effectiveness of the Legal Department for the provision of legal services; (c) identification of any instances of incompetence, neglect, undue delay or other misconduct; {d) the adequacy of the management of and the effectiveness of work control systems within the legal department; 5. (e) the adequacy of numbers and abilities of professional and support staff to ensure the timely performance of work at an appropriate level of quality; (f) definition of the areas of responsibility appropriate to the Legal Department; (gq) the extent to which the Legal Department should refer work to persons outside the Australian Broadcasting Commission; (h) the effectiveness of communications between the Leqaal Department and Management, other Departments, officers and stafi of the Australian Broadcasting Commission." By letter dated 8 April, 1983, the Chairman of the Commission.forwarded to the applicant a copy of the first interim report and the second interim report of Miss Pearlman. The Chairman said that her intention was that both reports be considered in detail by the Commission at its meeting on 13 May, 1983 and invited comments or submissions from the applicant not later than 29 April. The applicant responded through her solicitors' letter dated 27 April, 1983. They referred to statements made by Miss Pearlman that she had not sought the comments of the applicant upon her findings nor sought the applicant's version of the facts where material. (This may well explain why the reports are described as "interim" only.) The solicitors challenged the findings in many respects and requested that the Commission inform the applicant of the 6. particular matters affecting her under consideration by the Commission. Adequate time for response was also requested. Subsequent correspondence between the solicitors and the Commission shows that the parties were not able to agree upon a timetable for this purpose. On 12 May, 1983, the applicant commenced proceedings in this Court (No. G1l18 of 1983) against the Commission and its members making application for an order of review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act, 1977. The applicant claimed orders in effect restraining the Commission from considering the two interim reports ("the reports") until she had been given a full opportunity to be heard. Interim relief was granted from time to time. The present position in those proceedings is that the applicant has now delivered to the Corporation her written response to the reports,no further relief, interim or otherwise, is required and the only matter remaining to be determined is the question of costs. By letter dated 29 June, 1983, the Chairman of the Commission informed the applicant that on 26 May, 1983, the Commission had received an application from the third respondent, under the Freedom of Information Act, 1982 ("the Act"), for access to "a report to the Commission on the ABC Legal Department compiled by Ms. Mahla L. Pearlman and submitted in April, 1983". The Chairman gave notice that. 7. at the expiration of 21 days, the Commission intended that the third respondent be granted access to the reports. The nature of the application In her application for review, the applicant seeks to review the decision of the first respondent and/or the second respondent that the third respondent be granted access to the reports. She says she is aggrieved by the decision because the publication of the reports by the provision of access thereto will or is likely to result in the dissemmination of interim findings, conclusions and recommendations relating to the structure and conduct of the said legal department such that her duties and functions as head thereof will be affected by the reaction thereto of members of the staff of the legal department, other officers of the Corporation, and members of the public; and will or is likely to prevent or hinder the proper completion of the enquiry into the said legal department and the due consideration of the final report thereon and thus' the proper enquiry into and consideration of (inter alia) the performance by her of her duties and functions as head of the legal department. The grounds of the application are that the decision involved an error of law or was otherwise contrary to law for the reason that the reports are exempt documents 8. within the meaning of one or more of ss. 36, 40(b), 40(c) or 43(c) of the Act or, alternatively, that the provision of access thereto should have been deferred pursuant to s.21(1) of the Act. The applicant claims an order setting aside the decision; an order declaring that the reports are exempt documents within the meaning of the Act; an order directing the first and second respondents to refrain from granting to the third respondent or any other person access to the reports. Alternatively, the applicant seeks an order declaring that the provision of access to the reports should be deferred and that directions be given with respect to the further consideration thereof. The legislation The relevant provisions of the Act should be noted. Section 3 states that the object of the Act is to extend, as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by making available to the public information and creating a general right of access to information limited only by exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected by departments and public authorities. Access to documents is dealt with by Part III. By 9. s.1l1, subject to the Act, a legally enforceable right to obtain access is created. By s.14, any power or obligation to provide access is preserved. Requests for access are dealt with by s.15. Subject to the Act and except when the document is exempt, an agency (which, by s.4(1), includes a "prescribed authority"), or Minister is to give access to a document in respect of which a request in accordance with s.15(2) has been made and any prescribed charge paid (s.18). By s.21(1)(c), an agency which, or a Minister who, receives a request may defer the provision of access to the document concerned: "(c) if the premature release of the document concerned would be contrary to the public interest--until the occurrence of any event after which or the expiration of any period of time beyond: which the release of the document would not be contrary to the public interest." A procedure is prescribed by s.27 on requests in respect of a document containing information concerning a person in respect of his business or professional affairs. Such a person is to be afforded an opportunity to be heard (s.27(1)(c)). Where a decision is made that the document is not exempt under s.43, access shall not be granted unless the time for seeking review by the Administrative Appeals Tribunal has expired (s.27(2)). No such review was sought in the present case. n 10. Part IV deals with exempt documents. For present purposes, there are three potential classes of exemption. Internal working documents (s.36); documents the disclosure of which would be contrary to the public interest in certain defined respects (53.40); and documents containing confidential information of a commercial or professional character (s.43). By s.36(1), an internal working document is exempt if ait is a document the disclosure of which: (a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and (b) would be contrary to the public interest." Where a Minister is satisfied, in relation to such a document, that the disclosure of the document would be contrary to the public interest, he may sign a certificate to that effect and, subject to the operation of the review provisions contained in Part VI, such a certificate so long as it remains in force, establishes conclusively that the il. disclosure of that document would be contrary to the public interest (s.36(3)). Section 36 does not apply to a document by reason only of purely factual material contained in the document (s.36(5)). Further, s.36 does not apply to 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; reports of a prescribed body or organization established within an agency; or 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 (s36(6)). Section 40 exempts a document if its disclosure under the Act would be contrary to the public interest by reason that: (b) the document contains information the disclosure of which would, or could reasonably be expected to, have a substantial adverse effect on the supervision or review of the operations of an agency for the purpose of ensuring the proper and efficient conduct of those operations; or {c) the document contains information the disclosure of which would. or could reasonably be expected to, have a substantial adverse effect on the staff management interests of the Commonwealth or of an 12. agency, including the development and carrying out of the personnel management policy and the 'industrial relations policy of the Commonwealth or of an agency or the conduct by or on behalf of the Commonwealth or an agency of industrial relations negotiations." Section 43, which applies to, inter undertaking carried on by an authority of the Commonwealth, exempts certain documents relating to business professional affairs: "(1) A document is an exempt document if its disclosure under this Act would disclose-- (c) information (other than trade (i) secrets or information to which paragraph (b) applies) concerning a person in respect of his business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information-- the disclosure of which would, or could reasonably be expected to, alia, unreasonably affect that person adversely in respect of his lawful business or professional affairs or that organization undertaking in respect of lawful business, commercial financial affairs; ..." an or 13. Jurisdiction Aithough no general objection is taken to jurisdiction, the respondents submit that there 1s here no "decision" to be reviewed for the purposes of the Administrative Decisions (Judiciai Review) Act, 1977. They argue that, since s.1l1 creates a statutory right of access to the document in question, no "decision" to make it available is involved: in this sense, it is said, the Act has a self-executing operation so that the public agency involved has no substantive role to play and thus no "decision" to make. In my opinion, the submission takes too restricted a view of the position. Although s.1ll confers a right to access, its introductory words, "subject to this Act", make it clear that this is so prima facie only: the right is subject to provisions such as s.21 (deferment) and to the exemption provisions contained in Part IV. In some cases, a decision to claim deferment or exemption may well need to be made. This is reflected in the provisions of ss.19 and 27 which speak, in terms, of a "decision" made on a request for access. Further, the provisions of Part VI dealing with 14. ""yeview of decisions" by the Administrative Appeals Tribunal in certain cases, proceed upon the assumption that a decision is made on a request for access. In Director-General of Social Services v. Hales (1983) 47 A.L.R. 281, Lockhart, J. explained the meaning of "decision" in the Administrative Decisions (Judicial Review) Act, 1977 (at p.305): "'Decision' is a word of indefinite and wide: meaning. It was described by Deane J in Director-General of Social Services v. Chaney (1980) 31 ALR 571; 3 ALD 161 as a word of indeterminate meaning (ALR at 590). I described it as a word of aoristic meaning in Riordan v. Parole Board of the ACT (1981) 34 ALR 322 at 326-7; 3 ALD 144. The word 'decision' is defined by sub-ss (2) and (3) of s.3 of the Administrative Appeals Tribunal Act, a definition described in Chaney's case by Deane J, with whose reasons for judgment Fisher J agreed, in these terms (31ALR at 591): 'Section 3(3) of the Act defines a reference in the Act to a "decision" as including a reference to a litany of activities of both a positive and negative nature culminating in "doing or refusing to do any other act or thing". The provisions of s.3(3) would seem more apposite to define a reference to the substantive "decision" of the original decision maker than to confine the scope of a reference toa "decision" of the Tribunal upon review. Subject to that qualification, the specific activities mentioned in the definition in s.3(3), which are in the mature of effective action rather than intermediate "decision" on the path to such action, provide some indication that a reference to "decision" in the Act is, prima facie, a reference to the ultimate or operative determination rather than a reference to an is. adjudication or determination of issues arising in the course of making such an ultimate or operative determination. The indication which s.3(3) provides to that effect is, however, slight.' One cannot ... look to the definition in s.3(3) to determine definitively the meaning of the word 'decision'. It must take its colour and content from the enactment which is the source of the decision itself. No narrow or pedantic approach is called for in determining whether a decision falis within the scope of review by the Administrative Appeais Tribunal." In my opinion, the Act, as a whole and, in particular, the provisions of ss.19 and 27 contemplate that a "decision" within the meaning of the Administrative Decisions (Judicial Review) Act, 1977 was made here. In deciding to make the document available to the second respondent, the Chairman of the Commission was necessarily deciding that no claim for deferment and no claim for exemption would be made (see Lindsay J.Curtis "Freedom of Information: The Australian Approach" (1980) 54 A.L.d. 525 at p.529). The objection to jurisdiction on this ground fails. The applicant submits that jurisdiction to review is attracted in this case by a number of the statutory grounds set out in s.5(1) of the Administrative Decisions (Judicial Review) Act, 1977 as follows: ""(d) that the decision was not authorized 16. by the enactment in pursuance of which it was purported to be made;" "Ce) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;" "(F) that the decision was otherwise contrary to law." The case for exemption (1) Internal working documents (s.36) In the first instance, the applicant relies upon the provisions of s.36(1). She submits that disclosure of the reports 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 the Corporation; and that disclosure would be contrary to the public interest. The applicant submits that, even if it be assumed for the purposes of the argument that the complaints made against her were justified, the premature release of the document concerned would be contrary to the public interest. She says that the release of the interim reports at this stage, that is, prior to adjudication by the Corporation upon the issues raised by the reports and the applicant's response would be likely to give rise to a reaction on the part of some members of the public which 17. would be potentially destructive of dispassionate judgment in the matter. In this way, she submits, undue pressure would be put upon the Corporation to determine the matter in a particular way. If this were allowed to happen, the public interest would suffer on a number of accounts: the Corporation, a public authority, would be hampered in the due processes of its administration; and justice would not be seen to be done to the applicant. The applicant does not seek permanent relief in this regard. She seeks to restrain disclosure only until such time as the Corporation has adjudicated upon the issues raised. The respondents, on the other hand, deny that any "deliberative process" is involved here. They also say that, in any event, the public interest will not suffer if the reports are disclosed. Some assistance in understanding the meaning and intended operation of s.36(1) is afforded by the explanatory memorandum circulated with the bill for this Act (see TCN Channel Nine Pty. Ltd. v. Australian Mutual Provident Society (1982) 42 A.L.R. 496). A "deliberative" process is there treated as the same as or similar toa "policy-forming" process: "107. The class of documents which is so defined is intended to cover all documents that reflect the deliberative or policy-forming processes of an agency 18. or of Government. The class of documents will include, in so far as they are concerned with the deliberative or policy-forming processes: . communications between Ministers; . communications between Ministers and their Departmental and other advisers, including the briefing of Ministers on Cabinet Submissions; communications between officers of Departments, whether within the same Department or between Departments; and . communications between Ministers or officers and persons outside Government with respect to advice or opinions given to Ministers or officers. The material covered by this clause also includes such decuments as drafts prepared for the purpose of discussion, drafts submitted to more senior officers for settling, drafts of Cabinet Submissions, correspondence and other documents submitted to Ministers for settling and material of a similar kind. It will also include records of discussions, such as the records of discussions of inter-departmental and other committees." Dictionary meanings of "deliberative" are "l. having the function of deliberating, as a legislative assembly. 2. having to do with policy; dealing with the wisdom and expedience of a proposal" (Macquarie Dictionary). In this sense, a school board was held to bea "deliberative body" (see Elsemore v. Inhabitants of Town of Hancock (1941) 18 A.2d. 692, 694, 137 Me.218). Likewise, "deliberation" suggests not only collective discussion but 19. collective acquisition and exchange of facts preliminary to ultimate decision. In Sacramento Newspaper Guild v. Sacramento County Board of Superiors (1968) 69 Cal. Rptr. 480, 263 C.A. 2d. 41, Friedman, A.J. said (at p.485): "To 'deliberate' is to examine, weigh and reflect upon the reasons for or against the choice. (See Webster's New International Dictionary, 3d. ed.) Public choices are shaped by reasons of _fact, reasons of policy or both. Any of the agency's functions may include or depend upon the ascertainment of facts. (Walker v. County of Loss Angeles (1961) 55 Cal.2d 626, 635, 12 Cal.Rptr.671, 361 P.2d. 247.) Deliberation thus connotes not only collective discussion, but the collective acquisition and exchange of facts preliminary to the uitimate decision." It would seem that s.36(1) was drafted in the light of the explanation given of the meaning of the fifth exemption, (b)(5), of the United States' Freedom of Information Act, 1966 (see Davis, Administrative Law Treatise, 2d Ed. (1978) at pp.404-6). In Environmental Protection Agency v. Mink 410 U.S. 73 (1973), the Supreme Court said (at p.86): ",.-the legislative history of Exemption 5 demonstrates that Congress intended to incorporate generally the recognized rule that 'confidential intra-agency advisory opinions ... are privileged from inspection' ... (Under discovery law) 'memoranda consisting only of compiled factual material contained in deliberative memoranda and severable from its context would generally be 20. available for discovery by private parties in litigation with the Government... Virtually all of the courts that have thus far applied Exemption 5 have recognized that it requires different treatment for materials reflecting deliberative or policymaking process on the one hand, and purely factual, investigative matters on the other.' (410 U.S. at pp.87-88, 89; and see Davis, op. cit. at p.406." The distinction between delirerative or policyforming processes on the one hand, and purely factual investigative matters on the other was adopted in the Australian statute (see s.36(1){a) and (5)). In the present case, the reports were commissioned by the Corporation for consideration at the highest level. The terms of reference indicate that matters of policy are under review. It may be accepted that the question whether the services of a single officer or employee should be terminated does not, of itself, necessarily involve a policy matter the subject of deliberative process. However, in the present case, the terms of reference extend well beyond that question into fields of policy-making. The reports, although interim and, to some extent, factual in character, are within the terms of reference and accordingly derive their character from that wider context. In my opinion, the reports, viewed in that context, are in the nature of opinion, advice or recommendation prepared for the purposes 21. of the deliberative processes involved in the functions of the Corporation within the meaning of s.36(1)(a). However, as Mink decided and as s.36(5) requires, exemption 1s not available for so much of the reports as is purely factual, investigative material which is severable from its context. Before pursuing this aspect of the matter, it is convenient to consider whether the further provisions of s.36 are satisfied in the present case. I turn next to the question whether, assuming s.36 is otherwise applicable, disclosure of the reports would be "contrary to the public interest" (s.36(1)(b)). This notion of the "public interest" is also discussed in the explanatory memorandum: "112. That a document is an internal working document does not of itself make the document an exempt document under clause 36. To justify refusal of access to a document under this clause, the agency concerned must also form a view that it would be contrary to the public interest to give access to the document and specify the ground of public interest involved. The clause recognises that, within the wide class of documents defined in paragraph 36(1)(a), there will be many that can be made public without harm to the public interest, e.g. they may be documents of a routine or predominantly factual character, or they may contain information which has already been made public." 22. In evaluating where the public interest ultimately lies inthe present case, it is necessary to weigh the public interest in citizens being informed of the processes of their government and its agencies on the one hand against the public interest in the proper working of government and its agencies on the other (See Sankey v. Whitlam (1978) 142 C.L.R. 1; Commonwealth of Australia v. John Fairfax & Sons Limited (1980) 147 C.L.R. 39 at p.52). In its report (1979) on the Freedom of Information Billi, 1978 the Senate Standing Committee on Constitutional and Legal Affairs (at pp. 222-3) pointed to the shift in emphasis which had occurred in the United States in the interpretation of Exemption 5 in the American Act. In the early years, as Mink demonstrates, in considering what was in the public interest, the courts distinguished material reflecting deliberative or policy-making processes from purely factual, investigative matter, holding that disclosure of the latter material was not contrary to the public interest. As has been said, this seems to explain the description "deliberative processes" in s.36(1)(a). Further, reference to "purely factual material" is found in the exception to exemption contained in s.36(5). Likewise, the explanatory memorandum (para.112, supra), speaks of documents of a "predominantly factual character". This distinction was later questioned in the United States when documents of a factual nature, such as statements of 23. witnesses compiled by agency staff, were afforded protection: emphasis was placed upon protecting, not deliberative materials, but the deliberative processes of government. A further development in the United States was the drawing of a distinction between pre-decisional documents, which call for protection, and post-decisional documents, which embody or explain a decision, which are not protected. It seems that this approach is reflected, to some extent at least, in s.36(6)(c). The rationale, in terms of public policy, was explained by the Supreme Court of the United States in National Labor Relations Board v. Sears, Roebuck & Coe, 421 U.S. 132 (1975). After referring to the observation made by the Court in United States v. Nixon 418 U.S. 683, 705 (1974) that "human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances ... to the detriment of the decision making process", the Court explained (at p.152): "The public is only marginally concerned with reasons supporting a policy which an agency has rejected, or with reasons which might have supplied, but did not supply, the basis for a policy which was actually adopted ona different ground. In contrast, the public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted." a 24. More recently, as the Senate Committee pointed out (at p.223), the United States Court of Appeals has held that documents are not protected merely because they are pre-decisional; they must also be part of the deliberative process by which a decision is made (see Vaughn v. Rosen 523 F.2d. 1136 at p.1145 (1975). There, protection was denied to evaluative reports which were characterised as final objective analyses of agency performance under existing policy. In any event, they merely provided "the raw data" upon which decisions could be made; they were not themselves part of the decisional process" (at p.1145). The Court said (ibid): "The Government appears to argue that this entire process of management appraisal, evaluation, and recommendations for improvement is a seamless whole, that it is in its entirety a deliberative process, and that it is this process which the Government seeks to protect as an ongeing continuous affair. On this view, starting when the Commission's staff initiates a survey of an agency, when it notes down significant facts of its Operation, compares these with personnel and other management directives, evaluates what has been observed, until it formulates these evaluations into conclusions which are usually put as recommendations for improvement to the surveyed agency--all would be a part of a deliberative process. As such it would be protected under Exemption 5; to make any of it subject to disclosure is to do violence to the protection written in Exemption 5. We cannot accept this. If we consider 25. this entire continuous ongoing process of management appraisal, beginning with the action of the Commmission's staff inquiries through the final recommendations to the subject agency and its final action thereon, as a deliberative process, then surely we would be interpreting Exemption 5 to protect too much." Although the United States experience is illuminating for present purposes, in the end, this case must be decided by reference to the language and objects of the Australian statute and in accordance with the public interest of this community. Two points may be made here. First, in interpreting Exemption 5, the United States Court of Appeals may well have imposed a more stringent test in order that material may qualify as part of the deliberative process than the terms of s.36(1)(a) would seem to require: that provision is satisfied if the matter in question is "in the nature of, or relating to, opinion, advice or recommendation obtained ... in the course of or for the purposes of ... the deliberative processes ...". It may be that material could meet this test, as I have held here, without being an integral part of the policy-making process itself in the sense described in Vaughn v. Rosen. Secondly, in the light of the approach taken in Sankey v. Whitlam, supra, it is at least doubtful whether the theory of "tempering candor" with a "concern for appearances" as explained in Nixon and Sears, any longer carries any real weight in this country. 26. Given that the public interest is not a static concept, in my opinion, full disclosure of the reports, at this stage, would, on balance, be contrary to the public interest. The unchallenged evidence is that, in submitting her "interim" reports, Miss Pearlman did not seek information or comment from the applicant. No doubt, this course was adopted for sound practical reasons, presumably in the interests of expedition. But an incomplete enquiry conducted on such a limited footing could only lead to the formation, at that point, of views or opinions of a tentative or provisional kind (cf. Blackshaw v. Lord (1983) 3 W.L.R. 283 at p.301). However, publication of such views or opinions, provisional as they may be, couid create a misleading, perhaps unfair, impression in the minds of readers who donot have the benefit, if there be any, of knowing the response of the applicant. The formation of such impressions in the public mind could, in turn, influence the decisionmakers in their review of the situation. In my opinion, the provisions of s.36(1) are satisfied in the present case so far as any opinion, advice or recommendation is expressed in the reports. On the other hand, different considerations apply to any "raw" or purely factual material in the reports. In this respect, for the reasons given in the explanatory memorandum (para. 112, supra) and in Mink and in Vauahn v. Rosen, the public interest will not, on balance, suffer in 27. the event of the disclosure of such matters. In any event, the provisions of s.36(5) direct their disclosure. In my opinion, s.36 does not exempt from disclosure so much of the reports as consists of purely factual, investigative material. Finally, in my view, the reports do not fall within the exception contained in s.36(6)(a), since they cannot properly be treated as reports of a "scientific or technical" expert of the type there described. Whilst Miss Pearlman is an expert in the field of legal professional practice, the reference, in s.36(6)(a) to "technical experts" is, I think, intended to describe experts in the mechanical arts and applied sciences generally. This is one of the dictionary meanings of "technical" and such a meaning 1s suggested by the mention of scientific experts in the same connection. No doubt, Miss Pearlman may be confronted with technical legal questions from time to time in the course of her review, but it does not necessarily follow that she is acting as a "scientific or technical expert" within the meaning of s.36(6)(a) (cf. Battersea Borough Council v. British Iron and Steel Research Association (1949) 1 K.B. 343 at p.454). 28. (2) Documents concerning certain operations of agencies (s.40) Alternatively, the applicant seeks exemption by reason' of those aspects of the public interest described in s.40(b) or {(c). Presumably, these are aspects of that interest which are "essential" in the sense described in s.3(1)(b). Under s.40(b), exemption is given only if ""a substantial adverse effect" of the kind there described can be established. In my opinion, no such inference should be drawn here. ) It is possible to imagine that disclosure of the reports at this stage could possibly embarrass those charged with supervising or reviewing the operations of the legal department of the Corporation. However, L am not persuaded that any such effect, even if adverse, could fairly be described as "substantial" in its impact (see Tillmanns Butcheries Pty. Ltd. v. Australasian Meat Industries Employees' Union (1979) 27 A.L.R. 367 at pp. 374, 382). In my view, the insertion of a requirement that the adverse effect be "substantial" is an indication of the degree of gravity that must exist before this exemption can be made out. There is no such threat established on the material here. Indeed, the Corporation called no evidence on this or any other issue. Although evidence as to the apprehended position may not always be essential, 1t is difficult to draw an inference of the type urged by the 29. applicant in these circumstances. The applicant also relies upon s.40(c). In this connection, she tendered a letter dated 28 July, 1983 from two legal officers in her department. In the letter, the officers say: "We are concerned that if access was granted to the Report its contents may be released and broadcast to the public at large. We believe that any publication of the Report could reflect unfavourably on our professional and personal reputations and in this regard we have informed the Principal Legal Officer that in the event that the Report is released and broadcast to the public we would consider taking industrial action." 'The applicant also said in her evidence that she would consider taking strike action herself. However, the two officers concerned were not called and there was no evidence of their current attitude. On this material, I am not persuaded that staff management interests would be effected adversely toa "substantial" degree. Again, the degree of gravity required by the Act 1s not established. The matter really rests in assertions which are themselves inconclusive. Again, there is no evidence from the Corporation on the question. In my opinion, no case for exemption under s.40 has been made out. 30. (3) Documents relating to business or professional affairs (s.43) The applicant also invokes s.43(1)(c). She claims that, if the reports are disclosed, she would be adversely affected in her professional affairs; alternatively, she says, the Corporation would be adversely affected in its business or professional affairs. In my opinion, this provision is not available in the present case, even if it is accepted that, by virtue of s.43(3), the Corporation is an "undertaking" within the meaning of s.43(1)(c)(i). In the first place, I do not think that the applicant can argue that she would be "unreasonably" affected by disclosure of the purely factual matters in question, given a fundamental concession made on her behalf for the purpose of this proceeding. In objecting successfully to the tender of evidence by the third respondent made with a view to making good at least some of the charges levelled against her by the Commonwealth Ombudsman, the applicant submitted that the truth or otherwise of those allegations was irrelevant in this application. She argued that she should succeed here even if the complaints against her were well founded. Her case 31. was put on the prematurity of the release of the material rather than on its accuracy in factual terms. In the light of this concession, it is hardly open to the applicant to contend that disclosure of the factual material, if any, in the reports as distinct from comment or opinion, would affect her "unreasonably". There is a more fundamental objection to the claim to this exemption. In my view, the benefit of the operation of s.43 is not available to a person within an agency or undertaking. Nor, in myview, is it available to the agency or undertaking itself: the section read in conjunction with s.3(1)(b) and the explanatory memorandum make it plain enough that it is a provision the object of which is to protect, within reasonable limits, the interests of third parties dealing with the agency or undertaking and supplying information to it in the course of that dealing (a "Reverse FOIA" action and see Chrysler Corporation v. Brown:99 S.Ct. 1705, 1709 (1979); and see the discussion in Davis, op. cit, 1980 supplement to Vol. I (2d ed.) at pp.24-5; see also the report by the Senate Standing Committee, supra, at pp.273-4). In any event, in my view, the Court should not intervene on this ground for discretionary reasons (see Administrative Decision (Judicial Review) Act, 1977, s.10(2)(b) and see Campbell "Judicial Review and Appeals as 32. Alternative Remedies (1982) 9 Mon. L.R. 14 at p.56). In ss.27 and 59, the Act provides a procedure for the review by the Administrative Appeals Tribunal of decisions made under 5.43. In my opinion, review by that Tribunal is more appropriate in a case such as the present, especially where a central issue is whether a party is "unreasonably" affected by action: 'the exploration of an issue of that type is better undertaken by a tribunal which has a wider power to review a decision on the merits than this Court has in this type of proceeding. In my opinion, no case for exemption under s.43 has been made out. (4) The case for deferment (s.21) The applicant further claims that the Chairman of the Commission erred in failing to exercise her power of deferment under s.21. Although framed as a discretionary power ("may defer"), in my opinion, the power available under s.21 is ome to be exercised, if necessary, in the public interest and thus for the public benefit, in which event the Court may require it be exercised (see Julius v. Lord Bishop of Oxford (1880) 5 App. Cas. 214 at p.225). As with s.36, the criterion of the public interest in the circumstances of the present case requires, in my view, disclosure of the purely factual material in the reports but 33. calls for the withholding of any advice, opinion or recommendation there expressed. Although s.21 does not contain a proviso equivalent to s.36(5), nonetheless, a similar result is arrived at by application of the reasoning employed by the United States courts in their identification of the relevant aspects of the public interest in a case such as this. It follows, in my opinion, that the applicant has made out a limited case for deferment. Relief For these reasons, I propose to set aside the decision of the Chairman to give unrestricted access to the reports and to make an order directing the Corporation to give the third respondent access to so much of the reports as consists of purely factual material. Since the applicant . has been only partly successful, I propose to make no order as to costs. I also propose to reserve general liberty to any party to apply for further relief, if necessary. I have in mind, in particular, the possibility that a question may arise as to what is purely factual material and as to its severability; and the further possibility that the third respondent may wish to seek access to the balance of the 34. material in the reports after the Corporation has resolved the matters concerning the applicant raised by the Ombudsman and now awaiting determination. It is not and could not be, suggested that access by the third respondent to any part of the reports should be denied after that determination is made (see s.36(6)(c)). | certify that this and the 33 preceding pages are a true copy of the reasons for judgment herein of The Honourable Mr Justice Beaumont. Draw Chor Assoblate Dated # 0 corer 1983