OS | CATCHWORDS Administrative Law - appeal from Administrative Appeals Tribunal - freedom of information - request for access - entitlement to neither confirm nor deny existence of a document - meaning of "existence" - whether disclosure of "non-existence" might be expected to enable any person to ascertain identity or existence of a confidential source of information. Freedom of Information Act 1982 (C'th) ss.25, 26, 37. Department of Health v. Jephcott (1985) 62 ALR 421 Thompson v. Goold & Co. £19101 AC 409 DEPARTMENT OF COMMUNITY SERVICES & ANOR v. LOIS JEPHCOTT VG No. 342 of 1986 Sweeney, Sheppard and Ryan JJ. 2 June 1987 Melbourne. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG No. 342 of 1986 wee ww GENERAL DIVISTON On Appeal from the Administrative Appeals Tribunal Between: DEPARTMENT OF COMMUNITY SERVICES and MICHAEL HENRY CODD (in his capacity as Secretary of the Depart- ment of Community Services (Applicants) And: LOIS JEPHCOTT (Respondent) Judges Making Order: Sweeney, Sheppard and Ryan JJ. Date of Order: 2 June 1987 Where Made: Melbourne MINUTE OF ORDER THE COURT ORDERS THAT: The appeal be dismissed with costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG No. 342 of 1986 ) GENERAL DIVISION ) On Appeal from the Administrative Appeals Tribunal Between: DEPARTMENT OF COMMUNITY SERVICES and MICHAEL HENRY CODD (in his capacity as Secretary of the Depart- ment of Community Services (Applicants) And: LOIS JEPHCOTT (Respondent ) Coram: Sweeney, Sheppard and Ryan JJ. Date: 2 June 1987 REASONS FOR JUDGMENT THE COURT: By this appeal the applicants seek to set aside a decision of 29 August 1986 of the General Administrative Division of the Administrative Appeals Tribunal constituted by a Deputy President, a Senior Member and a Member of that Tribunal. It appears that the respondent, Mrs. Jephcott, was, in 1982, the recipient of a domiciliary nursing care benefit under the National Health Act 1953 in respect of both her late mother, Mrs. Myrtle Whitehead, and her father-in-law, Mr. Nigel Keith Jephcott. After the death of her mother, the respondent continued to receive the benefit in respect of her father-in-law. On 8 March 1984, entertaining a suspicion that her sister, Mrs. Butler, had made some disparaging communications about her to the Department of Health, Mrs. Jephcott, pursuant to the Freedom of Information Act 1982 ("the FOI Act"), requested access to; "CL) RECORDS HELD ON ME RE DOMICILIARY ALLOWANCE FOR NIGEL KEITH JEPHCOTT, ALSO (2) RECORDS HELD ON INFORMATION GIVEN BY MRS. LINDA BUTLER ABOUT ME, AND MY LATE MOTHER MRS. MYRTLE WHITEHEAD, CORRYONG." By letter dated 17 May 1984, the Commonwealth Director of Health for Victoria supplied the information to which Mrs. Jephcott referred 1n the first part of her request, but in respect of the second part advised as follows: "Turning to part (ii) of your request, I am of the opinion that even if the Department held any such documents, access to them should be refused because the documents would contain information provided in confidence. In addition, I find it reasonable to assume that the disclosure of any such documentation would hinder the Department's proper administration of the domiciliary nursing care allowances scheme. Section 25 of the FOI Act permits me to neither confirm nor deny the existence of a document if the disclosure of such a document would be prejudicial to the public interest for reasons found 1n section 37(1) of the FOI Act." The writer then confirmed that he had decided to invoke the provisions of s.25. Mrs. Jephcott sought and obtained an internal review of that decision. That was undertaken by Mrs. A. Kern, Deputy Director-General of the Department of Health, who, on 3 August 1984, upheld the decision refusing to confirm or deny the existence of any documents of the kind referred to in Part (2) of Mrs. Jephcott's request. On 7 February 1985, the Administrative Appeals Tribunal, constituted by a Deputy President, set aside the Department's decision on Mrs. Jephcott''s request and remitted the matter to the Secretary of the Department of Health, »- for reconsideration in accordance with a direction that, if the Department of Health (the agency) has in its possession any document containing the information referred to by the applicant in her request, access is to be granted to it, unless it is an exempt document under any provision of the Freedom of Information Act 1982 (the FOI Act) other than section 37 thereof and the respondent, or an officer of the agency acting within the scope of authority conferred on him under the FOI Act in accordance with arrangements approved by the respondent, decides that access to it should not be given to the applicant." That decision of the Tribunal was based on the view that s.37 of the FOI Act did not exempt a document unless there is, ",.. a substantial risk that the enforcement or administration of the law will be impaired if he Cthe confidential source] and others are deterred from giving such information by the risk of disclosure of his or their identity." In Department of Health v. Jephcott (1985) 62 ALR 421 a Full Court of this Court (Forster, Keely and Davies JJ) (on appeal) set aside the decision of the Tribunal and ordered that the matter be remitted to the Tribunal to be heard and determined according to law. In the meantime, the first applicant, the Department of Community Services of which the second applicant, Michael Henry Codd is the Secretary, had acquired responsibility for administering the relevant part of the National Health Act. It was upon the matter being remitted to the Administrative Appeals Tribunal, that the decision was given, after the hearing of evidence, which is the subject of the present appeal. In the result, the Tribunal decided to set aside the decision of the Department under review and to remit' the matter to the Department for reconsideration in accordance with the direction that Mrs. Jephcott be informed as to the existence or non-existence of the document the subject of her request. The Department of Community Services and the second applicant, the Secretary of the Department, contended that the decision in question is vitiated by an error of law in the application of ss.25 and 37(1)(b) of the FOT Act to the facts of the (present) case. For that contention to be understood reference must be made to each of those provisions. Section 25 1s 1n the following terms: "(1) Nothing in this Act shall be taken to require an agency or Minister to give information as to the existence or non-existence of a document where information as to the existence or non-existence of that document, if included in a document of an agency, would cause the last-mentioned document to be an exempt document by virtue of section 33 or 33A or sub-section 37(1). (2) Where a request relates to a document that is, or if it existed would be, of a kind referred to in sub-section (1), the agency or Minister dealing with the request may give notice in writing to the applicant that the agency or the Minister, as the case may be, neither confirms nor denies the existence, as a document of the agency or an official document of the Minister, of such a document but that, assuming the existence of such a document, it would be an exempt document under section 33 or 33A or sub-section 37(1) and, where such a notice is given - (a) section 26 applies as if the decision to give such a notice were a decision referred to in that section; and (b) the decision shall, for the purposes of Part VI, be deemed to be a decision refusing to grant access to the document in accordance with the request for the reason that the document would, if it existed, be an exempt document under section 33 or 33A or sub-section 37(1), as the case may be." Section 26(1) obliges the maker of a decision refusing to grant access to a document to give notice in writing to the applicant stating the decision-maker's findings on any material questions of fact, referring to the material on which those findings were based and stating the reasons for the decision. The notice must also acquaint the applicant with his rights of review and the procedure for exercising them. By s.26(2) it 18 provided: "A notice under this section is not required to contain any matter that is of such a nature' that its inclusion in a document of an agency would cause that document to be an exempt document." Sections 33 and 33A refer respectively to documents affecting national security, defence or international relations, and documents affecting relations between the Commonwealth and a State. Neither of those sections has any application to the present case. Section 37(1) of the FOI Act provides: "A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to - (a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance; (b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law; or (c) endanger the life or physical safety of any person." It was argued by Mr. Black Q.C. for the applicants that the Department was entitled to invoke s.25(2) of the FOI Act in response to Mrs. Jephcott's request and neither confirm nor deny the existence of a document containing information about the matters referred to in part (2) of that request. That entitlement existed, so 1t was argued, even on the hypothesis that no document answering Mrs. Jephcott's description existed, because to admit the non-existence of a document "would, or could reasonably be expected to disclose, or enable a person to ascertain, the existence or identity of a confidential source of information" in terms of s.37(1)(b) of the FOI Act. In its more restricted form Mr. Black's argument required the word "existence" in s.37(1)(b) to be read as "existence or non-existence". We consider that the answer to that argument is provided by the oft-quoted passage from the speech of Lord Mersey in Thompson v. Goold & Co. £1910] AC 409, in which his Lordship said, at 420; "It isa strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do". Our reluctance to import into s.37(1)(b) the additional words "or non-existence" is reinforced by the presence in the related section 25(1) of the very phrase "existence or non-existence" in respect of a document. If the draftsman intended to erect a similar concept in respect of a confidential source of information in s.37(1)(b), 1t 1s difficult to understand why he did not employ the same form of words. However, it was also contended on behalf of the applicants that the disclosure by an agency of the non-existence of what has been called before the Administrative Appeals Tribunal, and in this Court "a putative document" could reasonably be expected to enable a person to ascertain the existence or identity of a confidential source of information, because such disclosure could be used as one step in a process of elimination at the end of which the agency would neither confirm nor deny the existence of a putative document the existence of which would disclose the existence or identity of a confidential source of information. For example, if the maker of a request were to seek access "to all documents in respect of information provided about me by any of A, B, C and D" and were told that no such documents existed with reference to A, B, or C, and that the agency neither confirmed nor denied the existence of any such document in respect of D, the inquirer would thereby be enabled to ascertain that D was a confidential source of information. It is a difficult question whether s.37(1)(b) on its proper interpretation allows 38.25 to be invoked to prevent the ascertainment by such a process of elimination of the existence or identity of a confidential source of information. However, the Tribunal adopted the interpretation contended for by counsel for the Department and 1t 1s unnecessary for present purposes for the Court to reach a concluded view on this question of interpretation. The Tribunal then proceeded to consider whether, in the circumstances of the present case, it could be apprehended that to deny the existence of the putative document, assuming it not to exist, would enable Mrs. Jephcott to make such a deduction. That approach of the Tribunal was criticized by Mr. Black who contended that there is no requirement in the Act that there should be any evidence at all of the intention or motive at any time of an applicant for information. Rather, it was urged, the matter is to be answered objectively after asking whether a response which confirmed or denied the existence of the putative document might reasonably be expected to enable any person to ascertain the existence or identity of a confidental source of information. However, when pressed, Mr. Black accepted that the decision-maker is required to have regard to the subject matter of the request and the known circumstances in deciding whether to invoke s.25(1). It was conceded that a mere speculative possibility that one of the consequences specified in s.37(1)(b) might flow from a response that a putative document did not exist, would not warrant a response neither confirming nor denying its existence. 10. In our view, the Tribunal did not misdirect itself in its consideration of the matters to which regard should be had in the present case. The known circumstances happened to consist of Mrs. Jephcott's suspicion that Mrs. Butler had made some disparaging communications about her. The Tribunal did no more than acknowledge that when it said, at p.13 of its reasons for decision: "We accept the respondent's submissions that it could be possible for a person by a series of highly specific requests to use the respondent's change of response to deduce a confidential source of information. However, there would need to be some evidence suggesting that the applicant was using, or might use, such a technique to discover a confidential source of information before a reasonable expectation of the effects predicated in s.37(1)(b) could be found. There was in this case no such evidence. In fact the evidence suggested the opposite; 1t suggested that the applicant was quite convinced that Mrs. Butler had supplied information to the respondent and that this had been the cause of her difficulties with the Department." Accordingly, the conclusion of the Tribunal was expressed as follows at p.15 of its reasons for decision: "We simply state that in all the circumstances of this particular case we are unable to find that the inclusion in a document of the agency of information as to the existence or non-existence of the document answering the terms of the applicant's request for access would cause = such document of the agency to be exempt within s.37(1). We do not dispute the respondent's claim that there exists animosity between the applicant and Mrs. Butler, or that Mrs. Butler might seek to cast doubt on the applicant's entitlement to the benefit. We are, however, unable to see how this, married to the terms of the request for access, would cause a_ putative 1. document containing information as to the existence or non-existence of documents answering the terms of the request to be exempt under s.37(1)(b)." The Tribunal nowhere suggested that the inquiry in all cases, in which a response under s.25(1) might be given, is to be confined to matters evidencing the motive or intention of the applicant for information. All that the Tribunal did was to find, as afact, that Mrs. Jephcott was the only person interested in the matter of the present request and that there was nothing to indicate that she was engaged in a process of elimination of the kind discussed above. That finding of fact was clearly open to the Tribunal, and because its reasoning discloses no error of law this appeal must he dismissed with costs. I certify that this and the preceding ten (10) pages is a true copy of the Reasons for Judgment herein of the Court. Dated: 2 g~ (949 _——4A- * oe 12. VG 342 of 1986 Counsel for the Applicants: Solicitors for the Applicants: Counsel for the Respondent: Solicitors for the Respondent: Dates of hearing: Mr. M.E.J. Black Q.C. Mr. S.W. Kaye Australian Government Solicitors Mr. L.R. Paine Lorraine A. Robertson 5, 6 March, 1987