ay WUDGMENT No, 22+ Yee CATCHWORDS FREEDOM OF INFORMATION - appeal from Administrative Appeals Tribunal - request for access - comparative and individual assessments of applicants for public service appointment - whether "exempt documents" within 8s.40(1)(c) or s.41(1) Preedom of Information Act 1982 ~- whether such documents may contain "information relating to the personal affairs of any person" - effect of disclosure of documents of a given class as contributing to "a substantial adverse effect on the management or assessment of personnel" within s.40(1)(c) - whether a question of law. Freedom of Information Act 1982 ss.40(1)(c), 41(1) DEPARTMENT OF SOCIAL SECURITY v_ ERIC BERNARD DYRENFURTH No VG 109 of 1987 Sweeney, Keely and Ryan JJ 5 May 1988 Melbourne IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No VG 109 of 1987 eed GENERAL DIVISION On appeal from the General Administrative Division of the Administrative Appeals Tribunal BETWEEN: DEPARTMENT OF SOCIAL "ss SECURITY SS (Applicant) AND: ERIC BERNARD DYRENFURTH (Respondent) Coram: Sweeney, Keely and Ryan JJ Date: 5 May 1988 Place: Melbourne MINUTES OF ORDER THE COURT ORDERS THAT: l. The appeal be allowed. 2. The decision of the General Division of the Administrative Appeals Tribunal given on 15 April 1987 be set aside and the application be remitted to the Administrative Appeals Tribunal to be heard and decided according to law. +s AND FURTHER ORDERS BY CONSENT THAT: 3. The applicant pay the respondent's costs of the appeal. NOTE: Settlement and entry of orders is dealt with in 0.36 of the Federal Court Rules. vt bt ae! IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No VG 109 of 1987 ) GENERAL DIVISION ) On appeal from the General Administrative Division of the Administrative Appeals Tribunal BETWEEN: DEPARTMENT OF SOCIAL SECURITY (Applicant) ig ERIC BERNARD DYRENFURTH (Respondent ) Coram: Sweeney, Keely and Ryan JJ Date: 5 May 1988 Place: Melbourne REASONS FOR JUDGMENT THE COURT: This is an appeal, on a question of law, from the Administrative Appeals Tribunal. In the decision appealed from, the Tribunal rejected a claim advanced on behalf of the Department of Social Security ("the Department") that certain documents were exempt under the Freedom of Information Act 1982 ("the FOI Act") and ordered that those documents be released to the respondent, Mr Dyrenfurth. A position in the Senior Executive Service of the Australian Public Service ("the A.P.S8.") had been created within the Department and designated "Senior Executive Service, Level 1, Benefits Practices and Investigations ~ awe Branch, Melbourne". Applications for appointment to that position were invited by advertisements in the national Press. It appears that seven applications were received, of which three were later withdrawn. Mr Dyrenfurth was one of the remaining applicants, and was himself a permanent officer of the A.P.S. as were, at that time, the other three remaining applicants. A selection panel met to review the applications. It decided to interview two of the four remaining applicants. Mr Dyrenfurth was one of the two applicants who were not interviewed. In the result the panel decided that none of the applicants should be appointed, and apparently resolved that the position should not be re-advertised for the time being. Thereupon Mr Dyrenfurth requested access to the following papers under the FOI Act:- ". All papers, reports etc prepared by or for the Selection Committee in connection with the selection process for the abovementioned position. If not encompassed by the above, any reports written by referees in connection with the process, together with any records of conversation with referees. - All papers prepared for or by the Public Service Board and its officers in connection with this selection process, which are held by your Department. pap pers held in connection with the fects on not to readvertise the position for the present." By the time when that request came before the Administrative Appeals Tribunal, the ambit of Mr Dyrenfurth's request had been narrowed so that the Tribunal was able to identify, as follows, the documents with which it had to deal:- " (i) A comparative assessment of (a) the person who, as with the applicant, was not interviewed, and of (b) the two persons who were interviewed. These form part of a document which has been furnished to the applicant. (1i) Individual assessments of the two persons who were interviewed. Each of these is claimed to be wholly exempt." The appeal calls into question the interpretation by the Administrative Appeals Tribunal of two sections of the FOI Act. The first, in the order taken by counsel's submissions, is s.41(1) which provides:- "A document is an exempt document if its @isclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person)." The way in which the Tribunal was persuaded to apply s.41(1) to the documents in question in this case has been stated in the following paragraph of the Tribunal's decision:- "19. Would disclosure of the documents in question amount to an unreasonable disclosure of the personal affairs of the persons in question? The Tribunal's decision in Re Wiseman and Department of Transport (1985) 4" AAR 53 contains an attractive exposition, based on Tribunal decisions, of the view that information relating to a person's performance of his or her employment may constitute information relating to that person's personal affairs within s.41(1) of we the FOI Act. The point has however been decided otherwise by Beaumont J in the Federal Court in Young v. Wicks (No. Qld G88 of 1985, 30 May 1986, unr Q - On page 8 of his judgment Beaumont 3 there said: 'The reference to "personal affairs" of a person was, I think, intended to have its ordinary dictionary meaning, that is to say, to refer to matters of private concern to an individual (see Re Williams and the Registrar of the Federal Court of Australia (1985) 8 ALD 219 at p.22i)'. This ruling {fs binding on this Tribunal. It follows that 8.41(1) offers no ground of exemption in this case. To use His Honour's expression in Young v. Wicks at p.8 : 'Applying that test to the present material, it is not possible to identify any document as one which contains information referring to matters of private concern to the applicant as an individual' ." In Young v_ Wicks, Beaumont J., exercising the jurisdiction of this Court under the Administrative Decisions (Judicial Review) Act, had to consider whether information in certain documents in the custody of the Department of Aviation which pertained to the applicant in her capacity as a licensed professional pilot and senior pilot of the Ministerial Air Unit of the Queensland Government was exempt from disclosure by virtue of s.41(1) of the FOI Act as relating to the personal affairs of the applicant. It is convenient to set out in full the paragraph from his Honour's judgment from which the Tribunal quoted in the extract which we have just reproduced. After reciting that he had read the documents described in what was called "the second confidential appendix", his Honour observed (at p.8):- "In my opinion, none of the subject documents contain information relating to the 'personal affairs' of the applicant within the meaning of s.41(1} of the Act. The reference to 'personal affairs' of a person was, I think, intended to have its ordinary dictionary meaning, that is to say, to refer to matters of private concern to an individual (see Re Williams and the Registrar of the Federal Court of Australia (1585) 8 ALD 2195 at p.221). Applying that test to the present material, it is not possible to identify any document as one which contains information referring to matters of private concern to the applicant as an individual: each of the documents relate to the administration by the Department of the Air Navigation Act 1920 and the Airc Navigation Regulations thereunder. The applicant, it Is eae, ts the subject of the documentation but the documents are concerned exclusively with the public regulation of air navigation. The result is that the documents have a public, rather than a private, character." Re Williams and Registrar of the Federal Court of Australia (1985) 8 A.L.D. 219; 3 A.A.R. 529 which was there cited by Beaumont J. was another decision of his Honour, on that occasion sitting as a Presidential Member of the Administrative Appeals Tribunal. The facts of that case were closer to those in the present case as it concerned an application for access under the POI Act to papers related to selection to fill an administrative position in the Registry of this Court. The papers in issue were described by his Honour as follows, (8 A.L.D. at p. 221; 3 A.A.R. at p. 531):- "The documents for which exemption is claimed were produced to the Tribunal on a confidential basis, an order in that regard having been made pursuant to s 35(2) of the Administrative Appeals Tribunal Act 1975. Document DI6 is an interview report in respect of Mr Curtis (the successful applicant). It contains an interview assessment which deals with, inter alia, the candidate's work history, knowledge of duties, potential and motivation. Comments of members of the selection committee and of two referees on these matters are set out. These comments are confined to an evaluation of the candidate's work capacity and performance. None the less, the observations made are specific in their detail and could conceivably cause a measure of embarrassment to those concerned. Document D28 is the selection committee's comparative assessment of the first four candidates. Again, the observations made in this connection do not travel beyond an assessment of the work capacity and performance of those candidates; again, it is conceivable that the disclosure of some of the observations made could embarrass a person given to sensitivity in this type of situation. Document D29 is the report of the selection committee. The only part of the report to which access was refused is the statement, in the order of merit, of the names appearing after Mr Curtis." It was against that background that Beaumont J. went on to observe (also in 8 A.L.D. at p. 221; 3 A.A.R. at p. 531):- "In my opinion, the reference in the Act to the 'personal affairs' of a person was intended to have its ordinary dictionary meaning, that is to say, to refer to matters of private concern to an individual." It was contended on behalf of the applicant that the interpretation there given by Beaumont J. to the phrase "personal affairs of any person" was too narrow. Accordingly, so it was argued, in applying, as it considered it was bound to do, that interpretation as restated in Young v Wicks the Tribunal in the present case fell into error. Mr Tracey, for the applicant, sought to demonstrate that error by referring, first, to Re Wiseman and Department of Transport (1985) 4 A.A.R. 83 in which the Administrative Appeals Tribunal was concerned with a request under s.48 of the FOI Act which affords a facility to a claimant to seek amendment of a record in a document of an agency of "information relating to his personal affairs". Section 48 is in these terms:- — ed Where a person (in this section referred to as the 'claimant') who is an Australian citizen, or whose continued presence in Australia is not subject to any limitation as to time imposed by law, claims that a document of an agency or an official document of a Minister to which access has been provided to the claimant under this Act contains information relating to his personal affairs-— (a) that is incomplete, incorrect, out of date or misleading; and (b) that has been used, is being used or is available for use by the agency or Minister for an administrative purpose, he may request the agency or Minister to amend the record of that information kept by the agency or Minister." At p.87 of the report in Wiseman's Case, several previous decisions under POI legislation were examined, each of which was described as having "concerned a request by an employee of an agency to amend the record of information contained in the employee's personal file held in the files of the agency as employer". The Tribunal then noted that:- "In none of these cases did the Tribunal or court consider as a separate question whether the record sought by the applicant to be amended contained 'information relating to his personal affairs'. It appears to have been assumed that this was so: possibly on the basis that information on an employee's personal file with his employer must inevitably relate to the employee's personal affairs: or possibly because in each case the information contained in the documents was closely concerned with the applicant as a person." However, a similar assumption could not be made in Wiseman's Case, because, as the Tribunal observed, again at p.87:- "None of the other documents before us in these applications is concerned with Mr Wiseman as an employee, past, present or potential, of either of the respondents. Accordingly, it is necessary for us to consider the meaning of the expression 'information relating to his personal affairs' in a wider context." The conclusion reached by the Tribunal, after giving the phrase that consideration, appears at p.9l1 in these terms:- "We consider, consistently with the earlier cases on s 48, that the expression 'information relating to his personal affairs' in that section extends to include information relating to the applicant's work performance and capacity for employment whether or not the respondent agency is an employer of the applicant. In the circumstances of the present case, the Department of Transport is certainly a potential employer of a person with Mr Wiseman's qualifications, and it would appear that the same is true of the Department of Communications, which employs marine radio surveyors. But in any case, as some of the material before us indicates, the views which the officers of those respondents form as to the performance and capacity of a person with those qualifications may affect that person's employability by others." Reference was made also to another decision of the Tribunal constituted by Mr Deputy President Nicholson in Corbett v Australian Federal Police (Decision number 2714 unreported 30 May 1986) where it was observed, at p.1l1l:- "The information in issue here involves an assessment of the manner in which the Applicant has carried out the duties of his employment. True it is that it is not a minute paper on the Applicant's work history nor does it appear on a file relating to the Applicant's employment. However, the Respondent directed attention to Re Williams and Registrar of the Federal Court of Australia TISES 8 ALD 219 at 221-222 where it was sald by Beaumont J.: hee 'In my opinion, the reference in the Act to the "personal affairs" of a person was intended to have its ordinary dictionary meaning, that is to say, to refer to matters of private concern to an individual ... ordinarily, information as to the work capacity and performance of a person is not private in that sense. It is something observed by others and commonly discussed by those involved in that work. Ordinarily, information as to @ person's vocational competence is not something which is treated as confidential. Prima facie at least, it is not part of his or her "personal affairs".' That statement has not found favour in subsequent decisions and is inconsistent with earlier decisions - see Wiseman (supra, paras. 46 and 50) where the expression 'Information relating to his personal affairs' in section 48 was held to extend to include information relating to the Applicant's work performance and capacity for employment whether or not the Respondent agency is the employer of the Applicant. See also Resch (supra, para. 18). I accept as correct the views on this matter in Wiseman and Re _ Resch and Department of Veterans' Affairs (Decision No OBS 7120 Il April 19586) Tt is accordingly unnecessary to decide "whether in fact the information in issue here is information 'as to the work capacity and performance' of the Applicant." It was argued that, consistently with the approach taken by a Full Court of this Court in The News Corporation Ltd v National Companies and Securities Commission (1984) 1 P.C.R. 64, the same width should be accorded to the phrase "personal affairs" in s.41(1) of the FOI Act as it has received in the application of s.48, and other sections in which it appears in that Act. Accordingly, this Court was invited to construe "information relating to ... personal affaires" in s.41(1) in the same way as it was construed in Wiseman's Case, i.e. as extending to assessments of the - 10 - - capacity or previous work performance of an applicant for appointment within the A.P.S. In our view, it cannot be laid down by way of definition that an assessment of the capacity or previous work performance of an employee or prospective employee necessarily contains "information relating to the personal affairs" of that person. Equally, however, it is not permissible to construe the phrase, as the Tribunal appears to have done, as being incapable of application to information contained in an assessment of capacity or work performance. We do not understand Beaumont J. to have adopted, in Young v Wicks or Re Williams, any such rigidly exclusionary interpretation of the phrase. In the former case, his Honour, on an examination of the documents held by the Department of Aviation, found, as a matter of fact, that none of them contained information "referring to matters of private concern to the applicant as an individual". That he found it necessary to undertake such an examination at all argues strongly against the view that his Honour considered that the departmental documents in that case were, by definition, incapable of containing "information relating to the personal affairs of the applicant". Likewise, in Williams Case, Beaumont J. was at pains to disavow any attempt to define what the phrase necessarily excluded. He observed in the sentence immediately after that quoted by the Tribunal in the present case (8 A.L.D. at p. 221; 3 A.A.R. at p. 531):- -11- "It is not necessary to attempt an exhaustive definition of the phrase. It will suffice, for present purposes, to say that, ordinarily, information as to the work capacity and performance of a person is not private in that sense. It is something observed by others and commonly discussed by those involved in that work. Ordinarily, information as to a person's vocational competence is not something which is treated as confidential. Prima facie at least, it is not part of his or her "personal affairs'." The repetition of the word "ordinarily" and the qualification "prima facie at least" to which we have added emphasis, appearing as they do in such close proximity to each other, should be taken as an acknowledgement by Beaumont J. that some assessments of work capacity and performance or vocational competence, exceptional though his Honour thought they might be, would contain information relating to the personal affairs of their subjects. Like his Honour, we consider it inappropriate to attempt to describe, even illustratively, what may be "information relating to the personal affairs of any person". Some guidance, although by no means exhaustive, is afforded by the observation of St John J. in The News Corporation Ltd v National Companies and Securities Commission (supra) at 79, that:- "It is clear, in my view, that 'personal' and 'business' affairs were different in the mind of the draftsman. A corporation, brought into existence for business, can have business affairs. So too can real persons but, in addition, affairs relating to family and marital relationships, health or ill health, relationships with and emotional ties with other real people." ~12- At p. 73 of the same report Bowen C.J. and Fisher J said:- "We agree for those reasons with the opinion of St. John J. that the expression 'personal affairs' in par. 12(2)(a) refers only to the affairs of a natural person and not to the affairs of a corporation." It is sufficient for present purposes to indicate our view that information relating to the personal affairs of a person such as information concerning his or her state of health, the nature or condition of any marital or other celationship, domestic responsibilities or financial obligations may legitimately be regarded as affecting the work performance, capacity or suitability for appointment or promotion of that person. In those circumstances, it is conceivable that an assessment of work performance, capacity or suitability for appointment or promotion might contain such information. If it did, it would be necessary to consider whether disclosure of that information would be unreasonable so as to render the assessment an exempt document by virtue of s.41(1) of the FOI Act. The other provision of the FOI Act to which attention was directed by the notice of appeal and the submissions of counsel in this matter is 6.40(1)(c) which provides:- "Subject to sub-section (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to- (c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;" -~13- In applying that paragraph of the FOI Act to the facts of this case, the Tribunal observed in paragraphs 13 and 14 of its decision:-— "It seems to us that disclosure of the kind of matter contained within (i) and (ii) of paragraph 6 above could in broad terms reasonably be expected to have the following effects: (a) We would expect that disclosure of individual personal assessments or of comparative assessments could in some circumstances lead to difficulties between those concerned, in particular if those persons were associated with one another in their employment. (b) It would be quite possible for the effects mentioned in (a) above to extend further to the extent that they could reasonably be expected to have an effect on the proper and efficient conduct of the operations of the agency. (c) While the Tribunal has again and again declined to be persuaded by the so-called 'candour and frankness' argument in relation to the giving of advice on matters of policy, we are nevertheless satisfied that in the sensitive area of assessment of personnel (which we would think is in truth at least in part a component of the management of personnel although it is in s.40(1)(c) expressed as an alternative) there is ground for considering that there would be substantially less candour and frankness in written reports, assessments and references if it were known that there was a real likelihood that such reports etc were not confidential and may have to be disclosed. It is we think notorious that open references are given with a reduced frankness, and at a level of generality, that are inimical to the placing of much reliance upon them. The result could be either that the relevant documentation would be of reduced reliability and value, or that greater stress would have to be Placed on oral reports, or both. In any event the consequences for good administration in the area of management - 14 - and/or assessment of personnel would be serious indeed. At any . level of appointments, assessment of candidates for appointment must be as honest = and forthright as possible if the right decisions are to be made, and it may be correct to say that the higher the level of the office the truer this will be. (d) It is probably also true to say, although we would not lay too much stress on the point, that disclosure to the extent here sought would in general terms lead to persons who are unlikely to be successful being less likely to be inclined to apply for appointment. The contention that the giving of access to the documents here remaining in question would have the effects contemplated by s.40(1)(c) is thus a very tempting one. The essential point that we have to make however is that while at various points of the legislation the opportunity has been taken to confer exemption upon various classes of documents (as, for instance, Cabinet documents (8.34) and Executive Council documents (s.35)), other exemptions depend for their establishment upon the consequences flowing from disclosure of the information contained in the particular document access to which is sought. Such is the case with s.40(1). In such cases it is therefore necessary to have regard to the contents of each document in question. The position is the same as it is in relation to 8.36: See paragraph 39 of the Reasons for Decision in Re Fewster and Department of Prime Minister and Cabinet (17 and 53 December 15986, Decision No.3131). Thus while it may be easy to conclude that in the present case there may well be some undesirable effects arising from disclosure, it is a big step to conclude that disclosure of the particular information in these particular documents could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the agency. The difficulties in establishing such a case were said by Beaumont J in Re Williams and Registrar of the Federal Court of Australia LED 8 Ato 2195 at 222 to be formidable. If we had been approaching the present matter in, as it were, a vacuum, we might have been tempted to think that the difficulties were not so formidable. But the fact is that the practice of the respondent agency is stated to be what we might respectfully call a generous one. We have already set out the agency's guidelines. It is perfectly true that in general terms this Tribunal is not bound by an agency's guidelines, - 15 - but that is not the point here. We are uncertain to what extent they are applied (see Tr.26), but they exist as a fact, and their existence in that form seems to us to undermine the suggestion of substantial adverse consequence. Further, although we have some reservations as to the comment made about the particular decision referred to in the citation therefrom in paragraph 8 above (which we presume to be Re Scrivanich and Public Service Board (1984) 1 AAR we agree w e basic rust of what is said in the guidelines and in particular with its insistence that 'it is not possible to claim exemption for a document only for the reason that it falls within a class of documents', and with the statement that 'It is ... incumbent on the decision-maker to show how disclosure of a particular selection report to a particular applicant could reasonably be expected to have a substantial adverse effect' ." The question of law which that part of the Tribunal's reasons was said to raise was identified as follows by an amendment to the notice of appeal which the applicant was permitted to make during the hearing before this Court:- "2. Whether the Tribunal erred in holding that the exemption provided for in section 40(1)(c)} of the Preedom of Information Act can only apply where disclosure of the particular information in the particular documents under consideration can reasonably be expected to have the substantial adverse effect referred to in that provision." It was contended on behalf of the applicant that the Tribunal had misdirected itself as a matter of law because it was said to have asked, as the only question to be answered, whether "disclosure of the particular information in these particular documents could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the agency". However, we do not regard the Tribunal as having identified that as the sole test to be -16- : distilled from s.40(1)(c) for application to all conceivable requests for documents. Rather, we.consider that the Tribunal directed itself that the question which it identified in the words we have just quoted was the only question to be answered in the circumstances of Mr Dyrenfurth's request and the attitude taken by the Department of Social Security to documents of the general character of the assessments in question. Support for the view that the Tribunal directed itself in the way we have just suggested is provided, first, by the fact that in paragraph 13 of its decision the Tribunal identified four adverse consequences which could be expected to flow from disclosure, not of particular information in particular documents, but of a general class of documents, i.e. "individual personal assessments" or "comparative assessments". Had the Tribunal considered that it was confined, as a matter of law, to the effect of disclosure of particular information in particular documents, the identification of those consequences would have been irrelevant and unnecessary. In the second place, at the conclusion of paragraph 14 of its reasons the Tribunal stated that "we agree with the basic thrust of what is said in the guidelines and in particular with its insistence that 'it is not possible to claim exemption for a document only for the reason that it falls within a class of documents'." That passage, with its adoption of the word "only", to which we have added emphasis, -17- suggests to us that the Tribunal directed itself not that no regard at all can be had, for the purposes of s.40(1)(c) to the fact that a document falls within a given class, but that it is impermissible to allow that fact alone to determine whether disclosure could reasonably be expected to have the requisite substantial adverse effect. Thirdly, we have been influenced by the Tribunal's statement in paragraph 14 of its reasons that the agency's guidelines "exist as a fact, and their existence in that forn seems to us to undermine the suggestion of substantial adverse consequence". That is inconsistent with a view in the Tribunal that regard to the consequences of disclosure of documents of a given class is not available, as a matter of law, in applying s.40(1)(c). Rather, the statement has been recorded to explain why, on the facts of this case, the Tribunal saw itself as driven to consider only what could reasonably be expected to be the adverse effect of disclosure of "the particular information in these particular documents". Another indication that the Tribunal did not fall into the error of law for which the applicant contends is provided by paragraph 16 of the reasons for decision in which the following conclusion is expressed:- "What it comes down to, as it seems to us, is that we are asked to find that there is a reasonable expectation of an increased apprehension of the required adverse effect because the situation arises in the Senior Executive Service. We appreciate the point that there is strong ote - 18 - competition for these appointments and that there may be some difficulties in the working relationship between such competitors if the documents are disclosed, depending on their contents. Having considered the text of the particular documents here in question, we are however not of the opinion that disclosure of the material claimed to be exempt could reasonably be expected to have the required substantial adverse effect. The comments made about the individuals are candid, but they are expressed with moderation. We are unable to find these particular documents exempt under s.40(1)(c), notwithstanding that they have been created in the context of the SES." As we understand it, the Department claimed before the Tribunal that the assessment documents requested by Mr Dyrenfurth were distinguishable as a class from those to which the Tribunal considered the guidelines applied "to undermine the suggestion of substantial adverse consequence". We gather that the distinction contended for was that the guidelines applied only to selection and promotion of officers within the Third Division of the A.P.S. However, the Tribunal expressed itself in paragraph 16 as unable to draw that distinction as a matter of fact. That is borne out, in particular, by the concluding sentence of that paragraph where the Tribunal significantly says that "we are unable to find these particular documents exempt under s.40(1)(c)". The words to which we have added emphasis clearly convey that the Tribunal saw itself as making the conclusion required by 8.40(1)(c) about each document and not about "the particular information in these particular documents" which it examined on the way to its conclusion. We are reinforced in our view of the way in which the Tribunal applied s.40(1)(c) by the pains taken by Mr Deputy ~ 19 ~- President Todd in Re Barkhordar and Australian Capital Tectritory Schools Authority (Decision number 3376 unreported 15 April 1987) to distinguish the facts in that case from those of the present case. As appears on the face of the decision in Barkhordar, it was given on the same day as the decision presently appealed from and with full knowledge and approval of what the Tribunal (with mr Todd presiding) had decided in respect of Mr Dyrenfurth's request. We refer to paragraph 17 of the reasons for decision in Barkhordar where the learned Deputy President observed:- "The Tribunal has emphasised in Re Dyrenfurth that except in particular instances (as for instance 88.34 and 35) the FOI Act does not set up class claims to exemption. Other exemptions 'depend for their establishment upon the consequences flowing from disclosure of the information contained in the particular document access to which is sought' : See paragraph 14 of the Reasons for Decision in Re Dyrenfurth. In that case the Tribunal was unable to detect anything in the particular documents there in question that would, in the context and in all the proved circumstances, lead to the conclusion that the substantial adverse effect contemplated by s.40(1)(c) might reasonably be expected to occur. The grave impediment to such a finding was the fact that the agency did not in that case appear, having regard to its own guidelines, to believe in the likelihood of substantial adverse consequence. The suggestion of such adverse consequence had been undermined from within. In my opinion the situation here is quite different. Looked at for what they represent, looked at in terms of their contents, and looked at in terms of the coherent and carefully thought out system under which they were brought into being, I have no doubt whatsoever that release to the public of the documents here in issue under the FOI Act could reasonably be expected to have a substantial adverse effect on the assessment by the Authority of its personnel by throwing well considered and long adopted procedures for the same into confusion and disorder." atee*e » - 20 - In the light of the analysis which we have just undertaken, we are not persuaded that there has been an error of law by the Tribunal in deciding whether the documents requested by Mr Dyrenfurth are exempt from disclosure by virtue of s.40(1)(c). However, since as we have earlier indicated, an error of law has been identified in the Tribunal's application of s.41(1), the appeal must be allowed, the decision of the Tribunal must be set aside and the application be remitted to the Tribunal to be heard and decided according to law. In accordance with what we understand to be an agreement between the parties, the applicant should pay the respondent's costs of the appeal. I certify that this and the nineteen (19) preceding pages are a true copy of the Reasons for Judgment herein of the Court. Fagg BY Date: S-c- 'Pe ATTACHMENT A Title of Action File Number Date of Hearing Counsel for the Applicant Solicitors for the Applicant Counsel for the Respondent Solicitors for the Respondent oo Department of Social Security v_Eric Bernard Dyrentfur VG 109 of 1987 5 October 1987 R.R.S. Tracey Australian Government Solicitor G.A.A. Nettle Corrs Pavey Whiting & Byrne