CITATION: Surf Life Saving Australia Limited -v- Director General, Department of Education and Training [2001] NSWADT 76 DIVISION: General Division APPLICANT PARTIES: Surf Life Saving Australia Limited RESPONDENT Director General, Department of Education and Training FILE NUMBER: 003327 HEARING DATES: 06/03/2001 SUBMISSIONS CLOSED: 03/06/2001 DATE OF DECISION: 05/15/2001 BEFORE: O'Connor K - DCJ (President) at 1 APPLICATION: access to documents - business affairs - Freedom of Information Act - access to documents - business affairs MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 CASES CITED: APPLICANT REPRESENTATION: R Lancaster, barrister RESPONDENT W Freakley, solicitor ORDERS: 1 The agency advise within 7 days the person concerned (Immediate Assistants Pty Ltd) that on the material presently before it the Tribunal is not satisfied that access to the documents should be refused;; 2 The person concerned be requested to advise the agency within 14 days thereafter whether it wishes to give evidence in the proceedings;; 3 If the person concerned seeks opportunity to give evidence, the matter be re-listed; and; 4 If the person concerned declines to give evidence or does not reply within the period, agency to notify the applicant and Tribunal In that event Tribunal to enter final order setting aside the agency's decision 1 This is an application for review of a decision made under the Freedom of Information Act 1989 (the FOI Act) to refuse access to documents under the control of the Department of Education and Training (the Department). The applicant is Surf Life Saving Australia Ltd (SLSA). It has been refused access to materials submitted by Immediate Assistants Pty Ltd (IA) in support of an application for accreditation by the Vocational Education and Training Accreditation Board (VETAB) a division of the Department. 2 The request made on 16 October 2000 sought access to the following documents: '(a) prepared and lodged with VETAB by Immediate Assistants Pty Ltd … seeking accreditation of training courses including but not limited to a Level 1V Helicopter Crew certificate; and (b) produced or prepared by VETAB in processing, considering, responding to and approving IA's application.' 3 By letter dated 1 March 1999 the Department granted access to documents that it described as - '1) Correspondence between Immediate Assistants and VETAB, Certificates of Accreditation issued by VETAB, Copies of documents from the VETAB Course Accreditation Database'; and denied access to documents described as - '2) Copies of Course Plans outlining Learning Modules, Module Delivery, Learning Outcome Details and Assessment Methods'. Original FOI Decision 4 The reasons given in the letter of 1 March 1999 were as follows: 'I have decided to deny you access to documents outlined in point 2) above as I consider them to be exempt under Clause 7(b) of Schedule 1 of the Act. The facts on which I have based my decision are: 1. The document contains information concerning the business affairs of Immediate Assistants P/L namely detailed outlines of courses which the organisation runs or intends to run on a commercial basis. Copyright in relation to this material is, I understand, retained by Immediate Assistants P/L. 2. The views of Dr Cohen of Immediate Assistants P/L were sought in relation to the release of these document (sic). The views expressed were not in favour of release of the information. 3. Dr Cohen's views are that the documents contain information which is of a commercial value to his organisation. He considers that release of this information would reasonably be expected to diminish the commercial value of this information. 4. Having given consideration to the nature of the documents and the views expressed by Dr Cohen I am of the view that these concerns are reasonably based and am in agreement as to the likely adverse effects.' 5 The letter then goes on to purport to cite the text of cl 7(1)(b) which is set out as follows: '(1) A document is an exempt document - (b) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets …) concerning the business, professional, commercial or financial affairs of any agency or any other person: and (ii) could reasonably be expected to destroy or diminish the commercial value of the information.' 6 In fact the text misquotes cl 7(1)(b). The accurate text of cl 7(1)(b) is: '7 Documents affecting business affairs (1) A document is an exempt document: (a) … (b) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and (ii) could reasonably be expected to destroy or diminish the commercial value of the information, … (c) …. .' 7 The applicant submitted correctly that the text of the letter of 1 March 1999 gave reasons which involved a combination of different parts of s 7(1)(b) and s 7(1)(c) with the result that it is not clear which of these provisions were being relied upon at that time. 8 The applicant submits that this constitutes non-compliance with the provisions of s 28 of the FOI Act which materially provide (para (e) of s 28(2)) that the agency's notice of determination shall specify 'if the determination is to the effect that access to the document is refused: (i) the reasons for the refusal, and (ii) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based.' 9 It is apparent from the text of the reasons recited that the signatory was following the structure of s 7(1)(b). While the reasons are brief, they do give an explanation as to why the signatory considered that sub-para (i) was satisfied (see reasons 1 and 2) and they do give an explanation as to why sub-para (ii) was satisfied. 10 As can be seen the letter quoted the text of sub-para (ii) of para (b) correctly but sub-para (i) comprises (accurately) the first line of sub-para (i) and (inaccurately) the last three lines of s 7(1)(c)(i) as the Act is printed in the official reprint. This suggests to me that there was a typing error that was not picked up by the signatory to the letter. 11 The applicant has been professionally represented throughout this process. While the error made by the Department was regrettable, the nature of the slip is readily apparent. It is reasonably apparent from the reasons given for refusal that cl 7(1)(b) is being relied upon. While there was a non-compliance with s 28 in a technical sense, I am not satisfied that it would have led to any confusion or prejudice in this case. 12 At hearing the Department confirmed that it was relying solely on cl 7(1)(b). Internal Review 13 An internal review was sought. A delegate of the chief executive confirmed the refusal by letter dated 20 September 2000. The internal review decision adopted the reasoning of the original decision and contained the following additional comments: 'A comparison of the scopes of registration of the two organisations reveals that SLSA has a Course in Surf Lifeguarding (2372) and Certificates II, III and IV in Surf Coaching (7642, 7643, 7644) on its scope. There are no courses regarding helicopter rescue on its scope. Immediate Assistants Pty Limited, in contrast, has Course in Basic Crewman(13970NSW), Course in Helicopter Safety (Helisafe) (13965NSW), Certificate III in Helicopter Rescue Crewman (13964NSW), and Certificate IV in Helicopter Crewman Skills (13963NSW). The latter courses were accredited by VETAB in September 1998.' Application for Review 14 SLSA lodged its application for review with the Tribunal on 18 October 2000. Attempts to resolve the application by the case conference process were not successful. Background 15 As the brief history so far given indicates, SLSA has pressed this application over a long time. It has said that its sole concern is to be given the opportunity to satisfy itself by perusing the documents submitted to VETAB by IA as to whether IA used any material which might be regarded as confidential to SLSA. 16 On 15 September 1998 VETAB had given IA accreditation to offer the five courses mentioned in the internal review comments, cited earlier, for the period 15 September 1998 to 14 September 2003. Dr Cohen, whose views were sought by the Department in considering the FOI application, is the principal of IA. 17 Dr Cohen had worked at one time for 4 years at SLSA. He had been attached to the Helicopter Rescue Service conducted by SLSA, and had received internal training by SLSA. SLSA is concerned that materials prepared by it and other information to which Dr Cohen had access may have been used by IA in its application. SLSA has consistently stated that it only wished to inspect the materials in support of the application made to VETAB. It does not seek the provision of copies. 18 A statement was obtained from Dr Cohen for the purpose of these proceedings. In that statement dated 13 December 2000, among the assertions made by Dr Cohen were these: · copyright in the course material is owned by IA · providing access to the material sought would allow SLSA to see how the Certificate Course is structured, delivered and assessed · a significant amount of time has been utilised by Dr Cohen and IA in the development of the material and its release would allow SLSA to more easily develop courses in direct competition to the Certificate Course · the Certificate Course is the only one of its kind in NSW and access to the relevant material would allow SLSA to set up a rival course · if SLSA was to obtain copies of the relevant material, the commercial viability of IA would be jeopardised. 19 The statement then goes on to refer to discussions held between Dr Cohen and representatives of SLSA with a view to satisfying their concerns. SLSA disputed aspects of Dr Cohen's account of these events in particular any inference that might be drawn that the entirety of the material in dispute was made available for inspection. Dr Cohen says in his affidavit that 'all relevant material' was inspected. But through their solicitor SLSA officers said at the hearing that that inspection was confined to published course material and had not extended to the material in support of the application to VETAB which is the subject of the FOI application. I do not consider it necessary for me to resolve this dispute in order to deal with this case. 20 The Department's brief reasons need to be read alongside the statements made by Dr Cohen during the accreditation process. This material has been released to SLSA. When he first lodged his application for accreditation (letter dated 31 March 1997 but presumably meant to be dated 31 March 1998 - going by the receipt stamp of VETAB showing a mark of 6 April 1998) he asked that the material not be shown to a wide range of organisations for assessment which group included SLSA. 21 He nominated in his letter organisations and individuals to whom he did not object. The statement uses similar expressions to those found in cl 7(1)(b) and he asserts that the course material relates to the business, commercial and financial affairs of IA and him. 22 During the accreditation process SLSA had raised concern with VETAB over the legitimacy of the IA material. In a letter dated 20 August 1998 the CEO of SLSA, Mr Greg Nance wrote to the Department as follows: 'This fax is to notify you that [SLSA] is concerned that a company called Immediate Assistants is currently attempting to have accredited a series of courses which are using SLSA copyright material related to helicopter operations and crew training. In addition, the course material may also be using previously accredited SLSA lifeguarding course material, which again has copyright material contained within. SLSA is a registered training organisation (RRP100). As such SLSA is very concerned that this company is acting in this manner. Separate legal action is being taken against this company through our solicitors. I respectfully request that VETAB commence discussions with SLSA regarding our concerns outlined above.' 23 Dr Cohen in a letter dated 9 September 1998 wrote to VETAB strongly objecting to SLSA's assertions. There was a short statutory declaration attached asserting that IA held the copyright in all material submitted to VETAB. Issues 24 The questions that have to be addressed in applying the cl 7(1)(b) exemption in this instance are: · do the documents to which access is sought disclose information that has a commercial value to IA? · if they were released could that be reasonably expected to destroy or diminish the commercial value of the information? Burden of Proof 25 SLSA has submitted that the agency has not met the burden which lies upon it (s 61, FOI Act) to justify reliance on an exemption. 26 Section 61 provides: '61 Burden of Proof In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister.' Has the 'Commercial Value' Element of s 7(1)(b) been satisfied? 27 Its first objection is that the Department has not satisfied itself that the course material has 'commercial value.' SLSA contends that the statements of Dr Cohen simply claim copyright. There is no evidence, it says, upon which the Department (or the Tribunal) can rely to demonstrate that the requirement of sub-para (i) of para (b) of cl 7(1) (that the material has 'commercial value' to another person) has been met. 28 It is apparent that Dr Cohen's statements do contain assertions that the materials have commercial value, but are not any more specific than that. For example, they do not put a monetary estimate forward as to that value. But I consider that there was still sufficient material before the Department (and now before the Tribunal) for it to make a finding on that matter. That material includes the statements made by Dr Cohen; the general circumstances of the accreditation application; and the general context of vocational and education training. 29 Material submitted in support of a course-approval application is, and ought reasonably be, treated as the creative work of the applicant, provided in confidence for the purpose of assessing the application. The context in which it is provided is also relevant. As this instance indicates, VETAB can accredit private businesses to conduct courses. A private business may face competition from others in respect of its course offerings. So it would appear to have a market interest in protecting the confidential element of its course-applications from scrutiny by others. 30 If the Department's reasons, while terse, are read in this way, then the 'commercial value' requirement is met. 31 Moreover in this instance the reasons were addressed to a party knowledgeable of the wider context of the dispute, and one itself engaged in sophisticated technical training (albeit internal only). An organisation such as SLSA could reasonably be regarded as having a general understanding of the course accreditation environment. It is apparent from its own position in this dispute that SLSA recognises that commercial value can attach to course materials. Has the Further Element of s 7(1)(b) been satisfied, namely that disclosure could reasonably be expected to destroy or diminish the commercial value of the information? 32 SLSA's second objection is that there is no material before the Tribunal on this matter, and accordingly the burden is not discharged. I agree that there is no material at all before the Tribunal on the specific question of possible diminution in commercial value by dint of release of the information especially in the form sought by SLSA - inspection only access. 33 The course that I have adopted in dealing with the first element is not so easily able to be taken on this question. This an issue specific to the particular application, and there is no material before me on the issue. 34 In my opinion, the Department has failed to discharge its onus. Next Steps 35 But where does that leave the matter? Were it the more usual situation where the person with the critical interest in protecting the document from disclosure was the agency then I would see no difficulty moving on to make an order that the decision be set aside and the documents released. 36 But in this instance the persons with the critical interest in the outcome of the application are a person concerned (see s 32), IA and its principal, Dr Cohen. 37 The ultimate duty of the Tribunal is to make the correct and preferable decision. In a case where the agency has failed to discharge the burden but the interests most affected as a result are those of a person concerned, as here, care should be taken before making any order conclusive of the person concerned's interests. In this instance the Department's material is insufficient because it does not directly address the question of the commercial impact that might flow from limited release of the documents. 38 Counsel for the applicant drew the Tribunal's attention to s 32 of the FOI Act, which sets out the 'reverse FOI' procedure to be followed by agencies to ensure that they elicit the views of concerned persons before determining whether to release documents lodged by those persons. Sub-section (3) deals with the procedure to be adopted where an agency determines to give access over the objection of the person concerned. It provides: '32 Documents affecting business affairs (1) … (2) ... (3) If: (a) an agency determines, after having sought the views of the person concerned, that access to a document to which this section applies is to be given, and (b) the views of the person concerned are that the document is an exempt document by virtue of clause 7 of Schedule 1, the agency shall: (c) forthwith cause written notice to be given to the person concerned: (i) that the agency has determined that access to the document is to be given, and (ii) of the rights of review and appeal, and the rights of complaint to the Ombudsman, conferred by this Act and the Ombudsman Act 1974 in relation to the determination, and (iii) of the procedures to be followed for the purpose of exercising those rights, and (d) defer giving access to the document until after the expiration of the period within which an application for a review or appeal under this Act may be made or, if such an application is made, until after the application has been finally disposed of.' 39 Counsel for the applicant submitted that one way to deal with the case would be to grant his client's application subject to the decision's operation being deferred in the manner contemplated by s 32(3)(c). An alternative approach would be for me to make no substantive decision but simply ascertain through the respondent agency whether the person concerned is prepared to give evidence in these proceedings, and resume for that purpose. 40 I am minded in the present instance to follow the latter course. 41 The Tribunal's provisional conclusion is that the agency's decision should not be affirmed on the material presently before it. But the Tribunal will not move at this point to set the decision aside but proceed as set out below. Orders 42 The Tribunal orders that: 1. The agency advise within 7 days the person concerned (Immediate Assistants Pty Ltd) that on the material presently before it the Tribunal is not satisfied that access to the documents should be refused; 2. The person concerned be requested to advise the agency within 14 days thereafter whether it wishes to give evidence in the proceedings; 3. If the person concerned seeks opportunity to give evidence, the matter be re-listed; and 4. If the person concerned declines to give evidence or does not reply within the period, agency to notify applicant and Tribunal. In that event Tribunal to enter final order setting aside the agency's decision. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.