CATCHWORDS Freedom of Information ~ Whether information exempt as involving a breach of confidence - Freedom of Information Act 1982, s.45(1) - whether material inherently confidential. VICTOR GEORGE BAUERIS v. THE COMMONWEALTH OF AUSTRALIA No. G309 of 1986 Beaumont, J. Sydney 9 June 1987 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G309 of 1986 ) GENERAL DIVISION ) ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: VICTOR GEORGE BAUERIS Applicant AND: THE COMMONWEALTH OF AUSTRALIA Respondent MINUTES OF ORDER Judge making order: Beaumont, J. Date order made: 9 June 1987 Where made: Sydney THE COURT ORDERS: 1. Appeal dismissed ' 2. Applicant to pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY )} No. G309 of 1986 ) GENERAL DIVISION ) ON_APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN : VICTOR GEORGE BAUERIS Applicant AND: THE COMMONWEALTH OF AUSTRALIA Respondent CORAM: Beaumont, J. DATED: 9 June 1987 REASONS FOR JUDGMENT This is an appeal from a decision of the Administrative Appeals Tribunal on a question of law arising under the Freedom of Information Act 1982 ("the Act"). The question arises in this way. The applicant, the General Secretary of the N.S.W. Teachers Federation, requested the Commonwealth Schools Commission to grant access under the Act to certain information relating to an application made to the Commission by St. John's High School, Dubbo. The information requested related to an application for recurrent funding for the creation of a senior high school for years 11-12 and to an application for capital funding for the establishment of a new year 7-10 school on a new site. The Commission refused access to all the documents sought. Subsequently, the Department of Education, to which' the 2. responsibility for the administration of the capital grants and general recurrent grants programs had been transferred, decided to grant access to the documents but deleted certain material in ten of the documents. Access was denied to the deleted material on the ground that s.45(1) of the Act exempted it from disclosure. Section 45(1) of the Act provides that a document 1s an exempt document if its disclosure under the Act "would constitute a breach of confidence". The Tribunal upheld the claim for exemption. In its reasons, the Tribunal described the deleted material as follows: "(a) the finances of the Dubbo parishes for the year ended 31 March, 1984; (b) the finances of the parishes of St. Ingrid, St. Laurence and St. Mary for the year ended 31 March, 1983; (c) the annual recurrent budgets 1983 and 1984 for St. John's College; (d) the Bathurst Diocesan School Building Fund account for the year ended 31 March, 1983; (e) a financial statement 1 April to 31 December, 1983 relating to an unnamed parish; (f) a budget prediction for St. John's College in respect of the period 1 January - 31 March, 1984; (g) details about the financial position of the parishes of St. Ingrid, St. Laurence and St. Mary for the year ended 31 March, 1984 and about the loan accounts of the three parishes as regards School-Building Programmes, together with summaries of the same information; (h) projections drawn from the information contained in sub-para (g) above; (i) similar information to that referred to in sub-para (g); (3) the same. 3. (There is some duplication in the parts of the documentation to which access was refused)." Pursuant to s.64(1) of the Act, the Tribunal was provided with copies of the documentation in controversy. The Tribunal characterised the deleted material to which access was resisted as documentation with respect to "the financial affairs of St. John's College Dubbo, and of the Roman Catholic Parishes which support it." The Tribunal reviewed in some detail the evidence as to the circumstances in which the information in question was communicated to the Commission. The Tribunal then identified the following three elements as the relevant considerations in the determination of a claim for exemption under s.45(1): "1. Whether the information is confidential. 2. Whether the information was communicated in confidence or in such a way that there was an obligation of confidence. 3. Whether disclosure would be an unauthorized use by the confidant although not necessarily with a prejudicial or detrimental effect." The Tribunal held that each of these ingredients was satisfied in the present case. It then dealt with and rejected a separate argument advanced on behalf of the applicant, which is not pursued in this Court (see Re Maher (1986) 4 A.A.R. 266 at pp.288-9), that, in applying s.45(1), the Tribunal was bound to take into account a suggested countervailing public interest. By his amended notice of appeal, the applicant challenged the Tribunal's decision on a number of grounds. On the hearing of the appeal, only one ground was argued. It was 4. submitted on behalf of the applicant that s.45(1) applied to information which was inherently confidential. It followed, the argument ran, that for the purposes of s.45(1) it was not open to the parties, by a merely private agreement, to change the character of information that is not confidential into something that is confidential. It was then submitted that, in essence, this is what happened here. The suggestion was made that the parties to the communications now in question agreed that the material be treated as confidential with a view to avoiding its disclosure under the Act. Their agreement was said to be a "sham". I cannot accept this analysis. It 1s now well established that s.45(1) is wide enough to afford protection from disclosure in circumstances where an action for breach of confidence may not succeed (see Attorney-General's Department v. Cockcroft (1986) 10 F.C.R. 180 at p.191). However, the circumstances in which equity will restrain a breach of confidence provide a useful analogy here. One of the requisites for the grant of eguitable relief 1s that the information in question has the necessary quality of confidence. It must be inherently confidential in that, as a general rule, it is inaccessible to the public. It must not be something which is public property and public knowledge (see Gurry, Breach of Confidence at p.4; Kearney, The Action for Breach of Confidence in Australia at pp.9-13; Meagher, Gummow and Lehane, Equity - Doctrines and Remedies, 2nd ed. at p.828). 5. In the present case, there could be no suggestion that the subject information, dealing as it did with the financial affairs of a number of private institutions, had become public property or public knowledge. On the contrary, the evidence indicated, as one would expect, that the communication of such material had been restricted. It follows, in my opinion, that the necessary quality of confidence existed here (see Cockcroft, supra, at pp.191-2). The first of the three elements to be proved by a Plaintiff to enforce a duty of confidence was thus established (see Coco v. A.N. Clark (Engineering) Ltd. (1969) R.P.C. 41 per Megarry J. at p.47). There remained the other two elements in Megarry J.'s well-known formulation. The Tribunal also correctly identified these other elements and found, on the evidence, that they were made out. There was no serious challenge to these findings. The evidence showed that much of the information was conveyed under the umbrella of an express undertaking of confidentiality. There was also evidence that the balance of the material was communicated to the Commission in circumstances in which it was proper to infer or imply a pledge of confidentiality (see Department of Health v. Jephcott (1985) 62 A.L.R. 421 at p.425). It follows that the suggestion that the parties were seeking, by a "sham" agreement, to transform the character of the information disclosed must be rejected. The material always had the necessary quality of confidence and the parties, by their express or implied agreement, were doing no more than seeking to 6. preserve its confidentiality. To restrict its disclosure in this way was not a sham. On the contrary, the agreement accorded with the true position. The applicant also sought to rely upon the reasons in Re Low_and Department of Defence (1984) 2 A.A.R. 142 at pp.147-149. In my opinion, that case has no bearing upon the present question. It was also argued on behalf of the applicant that the protection of s.45(1) was not available because the information was furnished with a view to obtaining a benefit. The fact that the information in question was provided to the Commission for the purpose of obtaining a grant may be accepted. But there 1s no reason to read down the operation of s.45(1) so as to exclude such a situation from 1ts protection. In my opinion, the Tribunal correctly held that the exemption under s.45(1) was available. The appeal will be dismissed with costs. I certify that this and the preceding 7ive (Ss) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justjce Beaumont. fysehe 1 Blrser Associate Dated : 9 June 1987 Counsel and Solicitors Ms. C. Simpson instructed by for Applicant: MacMahon & Drake Counsel and Solicitors Mr. D.M. Yates instructed by for Respondent: Australian Government Solicitor Dates of hearing: 25 May 1987 Date Judgment Delivered: 9 June 1987