CITATION: Templeton v Department of Gaming and Racing [2006] NSWADT 36 DIVISION: General Division APPLICANT PARTIES: Colin Templeton RESPONDENT Director, Department of Gaming and Racing FILE NUMBER: 053161 HEARING DATES: 8/09/2005 SUBMISSIONS CLOSED: 09/08/2005 DATE OF DECISION: 02/06/2006 BEFORE: Higgins S - Judicial Member CATCHWORDS: access to documents - confidential material - Freedom of Information Act - access to documents - confidential material MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Registered Clubs Act 1976 Australian Doctors' Fund Pty Ltd v Commonwealth of Australia (1994) 49 FCR 478 at 489 Edlund v Commissioner of Police (2003) NSWADT 195 Harris v Australian Broadcasting Tribunal (1983) 50 ALR 551 CASES CITED: Re B v Brisbane North Regional Health Authority (1994) 1 QAR 279 at 338 Re Kamminga v Australian National University (1992) 26 ALD 585 at 588 Re Maher v Attorney Generals Department (1985) 7 ALD 731 Ryder v Booth [1985] VR 870 at 872 and Re B (supra) at 341 APPLICANT W Asplet, agent REPRESENTATION: RESPONDENT C Ludlow, solicitor ORDERS: 1.The decision of the Agency to refuse the Applicant access to a copy of the Minutes of a meeting of the Kingsgrove RSL Club Ltd held on 16 June 2003 ('the Minutes') is set aside; 2.In substitution of the Agency's decision a decision to grant the Applicant access to a copy of the Minutes with the exempt matter as set out in this decision being deleted; 3.The Agency to provide the Applicant with the abovementioned copy of the Minutes within 28 days of the publication of this decision REASONS FOR DECISION Introduction 1 This is an application by Colin Templeton ("the Applicant") seeking review of a decision of the Department of Gaming and Racing ("the Agency") to refuse him access to a document that he had requested access to pursuant to the Freedom of Information Act 1989 ("the FOI Act"). 2 The document in question was the Minutes of a Special Board of Directors meeting of the Kingsgrove RSL Club Ltd ("the Club"), concerning the Applicant, which was held on 16 June 2003 ("the meeting"). The Agency refused access to the document on the basis that it was exempt pursuant to cl.13(b) of Schedule 1 of the FOI Act. That sub-clause provides as follows: "A document is an exempt document: … (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest." 3 In his application for review and in response to the question of what were his reasons for seeking review of the decision of the Agency, the Applicant said the following: "The minutes used could not have been made in the legislated way – that is why they won't produce them. We can prove they are 'false and misleading' – therefore a 'false document'". Background 4 It is not disputed that on 16 June 2003, the Directors of the Club determined to suspend the Applicant's membership following an allegation of improper conduct by the Applicant, on 15 May 2003, towards a staff member of the Club. That suspension was for a period of 12 months. 5 On 10 February 2004, Mr Asplet, on behalf of the Applicant, wrote to the Minister for Gaming and Racing alleging that the Applicant's suspension was as a result of alleged criminal conduct by the Directors of the Club and a false statutory declaration of an ex employee of the Club. In his letter, Mr Asplet contended that "the same illegal actions have been used against other members who are all willing to make statements of the false accusations and documentation used against and about them. …". 6 This complaint was investigated by compliance officers of the Agency and they concluded that neither the Club nor its Secretary had breached the provisions of the Registered Clubs Act 1976 or the Club's Memorandum and Articles of Association: see letter dated 20 April 2004 from DC Loewenthal, Deputy-Director General to Mr Asplet. 7 On 11 November 2004, Mr Asplet, on behalf of the Applicant, made a request, pursuant to the FOI Act, seeking access to documents concerning: "The statements/testimony and minutes in relation to the meeting of 16 June 2003 concerning Mr Templeton held at the Kingsgrove RSL Club LTD. All testimony ("sufficient evidence") from Ms C. Watson, as stated in Item 3 of Kingsgrove RSL Club LTD solicitors (Slater & Elias) letter (Our Ref ST/3133) dated 16 October 2003. The tape made of the meeting by the committee of the Kingsgrove RSL Club Ltd's electronic device. Copies of the actual entry, in the event/day book of the alleged "incident". Any letters and documents supplied to the Minister or subordinates to the Department of Gaming and Racing in relation to this matter especially any notes/copies/documentation in relation to the letter from the Deputy-Director/General on this matter in letter …" 8 In response to the FOI request, on 17 December 2004, Darryl Freeman, Manager Legal and Licensing Branch of the Agency confirmed that the Department held a copy of the following documents that came within the Applicant's FOI request: (a) Minutes of the special meeting held on 16 June 2003; (b) a statement by Ms C. Watson; (c) a copy of an entry in the day book made on 29 May 2003; and (d) copies of correspondence to Mr Asplet and the Applicant. 9 Mr Freeman also advised that the Agency did not hold any tape-recording of the meeting and he determined to grant the Applicant access to the documents contained in (b) to (d) above. In respect to (a) above he determined to refuse access on the basis that the Minutes were exempt under cl.13 of Schedule 1 of the FOI Act. The reasons for such a determination was stated to be as follows: "Documents are often provided to the Department on a voluntary and some times confidential basis to assist the Department in carrying out an investigation. I am of the view that if a confidential document were released, the trust reposed in the Department would be significantly damaged and would result in lack of co-operation by entities being investigated in the future. The voluntary production of such information is vital to the regulatory role of the Director of Liquor and Gaming and I am of the view that the release of such information would be substantially against the public interest and would outweigh the public interest in disclosing such information. The Club has indicated does not give permission for the Minutes to be released." 10 Mr Asplet, on behalf of the Applicant, then made an application for internal review. On 14 February 2005, Mr Dominic Herschel, Assistant Director Charities of the Agency ("Mr Herschel"), determined the internal review request. His determination was that the Minutes in their entirety were exempt under cl.13(b) of Schedule 1 of the FOI Act. In making his determination Mr Herschel set out extensive reasons for his decision. These are dealt with in more detail below. Evidence 11 The Agency tendered into evidence a copy of the Applicant's FOI request, the Agency's original FOI decision, the internal review application and the internal review decision. The Agency also relied on a Statement of Evidence by Mr Herschel dated 20 July 2005. Mr Herschel was also made available for cross-examination. A copy of the Minutes was also provided to the Tribunal on a confidential basis. 12 The Applicant tendered into evidence a Statement by Mr Asplet dated 14 August 2005. That Statement primarily contained the various contentions of the Applicant in respect to the manner in which the Club had dealt with him. And it only contained a limited amount of relevant acts or omissions that Mr Asplet had direct knowledge of. In this regard, at para. [3], Mr Asplet said that on 19 September 2003 he met with the Senior Vice President of the Club. At that meeting Mr Asplet provided the Senior Vice President with a copy of a Statutory Declaration of another employee of the Club who said that on or about 29 May 2003, the Secretary Manager of the Club had forced her to make an entry into the Club's day book which recorded a complaint having been made against the Applicant. A copy of that Statutory Declaration was attached to Mr Asplet's Statement. Mr Asplet also said that he had raised with the Senior Vice President the question of whether the meeting of 16 June 2003 had been tape-recorded and the fact that the Applicant had been denied a copy of the tapes or any other written record of the meeting. Mr Asplet said that the Senior Vice President acknowledged that in accordance with the usual practises of the Club, the meeting was tape-recorded. However, no comment was made in respect of the Applicant being denied a copy of the tape or the written record of the meeting. 13 The Applicant also gave sworn evidence. He said that he attended the meeting on 16 June 2003 following receipt of a letter, dated 5 June 2003, from the General Manager of the Club. In that letter the Applicant was advised that his membership had been suspended until 16 June 2003 as a result of the 15 May 2003 alleged incident. The letter contained no further details of the alleged incident, but advised the Applicant that he had been charged with an offence under Article 47(h) of the Club's Memorandum and Articles of Association. The Applicant was also advised that the charge would be heard at 6.00 pm on Monday, 16 June 2003. 14 The Applicant went on to say that he attended the meeting and it was only then that he became aware of the details of the charge. He said that the meeting was relatively short and that he did not see anyone writing while he was in attendance. Legal Principles 15 It is evident from the material before the Tribunal that the Applicant and Mr Asplet are primarily concerned about the management of the Club, in particular the circumstances that led to the Applicant's suspension in 2003. However, as explained to the Applicant and Mr Asplet at the planning meetings that preceded the hearing, these were not matters over which the Tribunal had any jurisdiction. The Tribunal's jurisdiction arises under the FOI Act (see s.53 of the FOI Act and s.38 of the Administrative Decisions Tribunal Act 1997) and that jurisdiction is to review the decision of the Agency to refuse the Applicant access to a document, which the Applicant had requested under that Act and which was held by the Agency, namely the Minutes of the meeting of 16 June 2003. 16 Accordingly, in this application, the role of the Tribunal is to determine whether the Agency's decision to refuse the Applicant access to this document was the correct and preferred decision having regard to the relevant facts and applicable law: see s.63 of the Administrative Decisions Tribunal Act 1997. In this case, the applicable law was that under which the decision of the Agency was made, namely the FOI Act, in particular whether the document was in fact exempt under cl.13(b) of Schedule 1 of that Act. In this regard, the onus is on the Agency to satisfy the Tribunal that the exemption does in fact apply: see s.61 of the FOI Act. 17 In respect to the tape recording, which the Applicant contends must exist, the Agency has satisfied the Tribunal that it has at no time been given any tapes. In the absence of the Applicant pointing to any evidence to the contrary, there is no basis to consider any further the question of whether the Agency has a copy of this tape in its possession. As explained to Mr Asplet and the Applicant, under the FOI Act the Agency is only required to consider access to documents it holds. It does not require the Agency to acquire the document from another agency, in particular an organisation that is not subject to the FOI Act. Again, in the absence of the Agency having the tape-recording, the question as to whether they do or do not exist is not a matter the Tribunal can concern itself with in this application. 18 As was pointed out by Mr Herschel in his internal review determination, in order for the Minutes to be exempt under cl.13(b) of Schedule 1 of the FOI Act, the Agency must establish the following: (a) that the Minutes were obtained by the Agency in confidence – in this regard there is no need to prove that there was a legal obligation to keep information confidential and it is sufficient to establish that there was an express or inferred understanding that the information would be kept confidential: see Re Maher v Attorney Generals Department (1985) 7 ALD 731 and Re B v Brisbane North Regional Health Authority (1994) 1 QAR 279 at 338; (b) the disclosure of the Minutes could reasonably be expected to prejudice the future supply of such information to the Agency – it is well accepted that this does not involve a question as to whether the confider of the information in question would in future refuse to supply such information to the Agency. It is a question as to whether disclosure of information could reasonably prejudice future supply of this type of information from those sources that are available or likely to be available to the Agency: see Ryder v Booth [1985] VR 870 at 872 and Re B (supra) at 341; (c) disclosure would be contrary to the public interest – the concept of "public interest" is not a static or circumscribed notion and must be examined in the circumstances of each case: see Beazley J in Australian Doctors' Fund Pty Ltd v Commonwealth of Australia (1994) 49 FCR 478 at 489. It is also accepted that in deciding whether disclosure is contrary to the public interest this requires a balance in competing interests including the public interest in the Applicant's right to know: see Re Kamminga v Australian National University (1992) 26 ALD 585 at 588. However, in determining to grant access, there is no requirement to show that disclosure is in the public interest. In balancing the competing interests the Tribunal is also required to consider any adverse effect disclosure may have on the proper working of government or its agencies: Harris v Australian Broadcasting Tribunal (1983) 50 ALR 551. Consideration 19 I have considered all the material that is before the Tribunal including the Written Submissions of the parties. As I have mentioned above, in his internal review decision Mr Herschel set out comprehensive reasons for the Agency's refusal determination. In his Submissions, Mr Asplet seems to contend that the Applicant should be granted access to the Minutes so that he can verify their authenticity and accuracy. I also understand that he seeks access to these so that he can expose what he believes to be improper conduct by the Directors of the Club. 20 On the basis of the material before the Tribunal and for the reasons set out below, I am not satisfied that the Agency has established that the entire contents of the Minutes are exempt under cl.13(b) of Schedule 1 of the FOI Act. In my opinion, the Agency has only established that those portions of the Minutes where the Applicant was not in attendance are matters that are exempt under cl.13(b). 21 I am satisfied that the circumstances in which the document came into the possession of the Agency was such that disclosure of it would disclose information that had been obtained in confidence. As pointed out by Mr Herschel in his internal review determination, the Club has a policy not to release to its members the Minutes of any meeting of the Board of Directors. Circulation of the minutes is restricted to the Directors and Secretary of the Club. This, Mr Herschel argued was consistent with Article 93 of the Club's Memorandum and Articles of Association. That Article relates to 'accounts' and while there is mention of "other records", in my opinion those records must also relate to accounts. It is difficult to see how this could be construed to include minutes of meetings. 22 While I do not accept Mr Herschel's argument in respect to Article 93, in the absence of evidence to the contrary, I accept that the Club has a policy not to provide members, other than its Directors, copies of or access to minutes of meetings. I also accept that the Club has adhered to this policy in respect to the Minutes of the meeting of 16 June 2003. I also accept that the Cub provided the Agency with a copy of the Minutes as a result of an investigation by the Agency following the complaint received by the Agency from Mr Asplet and the Applicant. That investigation, Mr Herschel explained was conducted in accordance with the Agency's general practise of seeking the co-operation of the registered club the subject of the complaint. Similar to the practices of other regulatory agencies, this practise involves an expectation that any information voluntarily provided to such an agency will be considered and dealt with on a confidential basis. In support of this Mr Herschel relied on cl.8 of the Agency's Code of Conduct, which relates to the use of official information by officers of the Agency. 23 I am also satisfied that disclosure of the minutes could "reasonably be expected to prejudice future supply of such information" to the Agency. The Tribunal notes that the Agency's responsibilities include ensuring the ongoing integrity of clubs registered under the Registered Clubs Act 1976. This requires the Agency to make sure that there is overall compliance with the regulations by each and every club registered under the Registered Clubs Act 1976. To fulfil its responsibilities the Director General of the Agency is given coercive powers of search and entry (see s.58 of the Registered Clubs Act 1976). However, again like many regulatory agencies, the Agency can only use these powers in particular circumstances and even if these circumstances do exist it will only use them if required. Compliance with the regulations, by registered clubs, is primarily monitored through receipt of complaints and the voluntary co-operation of the clubs. This co-operation includes being provided with documents that are confidential in nature and that it is usually provided on the understanding that it will not be disclosed to other bodies or persons. Consequently, as explained by Mr Herschel, if it were to become known that information of this nature were to be disclosed by the Agency, then there is a reasonable expectation that in future registered clubs would be reluctant or refuse to provide that information. 24 However, I am not satisfied that it would, on balance, be contrary to the public interest to disclose the Minutes, particularly in so far as they relate to the Applicant during his attendance at the meeting. The Minutes are in effect a record of what was said by and about the Applicant during his attendance at the meeting and as the meeting was to hear and determine a complaint that had been made against him, it is difficult to see how it would be contrary to the public interest if this information was disclosed to the Applicant. 25 Ms Ludlow, for the Agency acknowledged that the Applicant may be assured if he was given access to the Minutes, however, she went on to say that as the meeting was confidential disclosure would mean that there would be no control over its further dissemination. That is, disclosure to the Applicant was disclosure to the world. In making this submission Ms Ludlow relied on the decision in Edlund v Commissioner of Police (2003) NSWADT 195 at [40]. The circumstances relating to that decision differ significantly to those that apply in this application. Most importantly, in Edlund the FOI applicant had requested access to documents that related to investigations by the Commissioner of Police. Those investigations did not concern the FOI applicant, they related to two other police officers. Furthermore, the relevant exemption in that application, did not include cl.13(b) of Schedule 1 of the FOI Act. 26 Ms Ludlow also submitted that in order to justify disclosure of the Minutes 'a very strong public interest factor must be shown'. For the reasons set out above, this is not the test. The test is whether the Agency has satisfied the Tribunal that disclosure would be contrary to the public interest. In this regard Ms Ludlow pointed to the fact that the Minutes were not a document of the Agency but a document of a private body that is not the subject of the FOI Act. She also stressed the confidential nature of the document, which had been provided to the Agency on a voluntary basis and the fact that the Agency relies on such co-operation to fulfil its functions. On the other hand she suggested that the Applicant's interest in the disclosure had diminished as his period of suspension had expired, that he had been re-admitted as a member and that he had failed to show what injustice could be remedied by being given access to the Minutes. 27 I agree that the fact that the Minutes are a document of a private body is a relevant factor to be taken into account when examining the question of the public interest. However, it is one of many factors to be taken into account and not a conclusive factor indicating that disclosure would be contrary to the public interest. 28 While I accept that there is a public interest in the Agency being able to perform its functions through the voluntary provision of information, in the circumstances of this application, I find that the balance between this public interest and the competing public interest of persons the subject of a disciplinary hearing being granted access to the record of that hearing is not such that the balance lies in the non disclosure of the document. Nor is that balance, in this application, altered by reason of the fact that the Applicant's period of suspension has expired. As I have said, there is a clear public interest in the disclosure of information, held by an agency, that directly relates to the FOI applicant. This is reflected in the exception to the personal affairs exemption in cl.6 of Schedule 1 of the FOI Act. 29 However, to the extent the Minutes contain deliberations of the Directors in the absence of the Applicant and the other matters, unrelated to the Applicant, that are contained in the Minutes, these are matters which in my opinion are exempt as disclosure of these would be contrary to the public interest. 30 Accordingly, I find that the Minutes do contain some matter that is exempt under cl.13(b) of Schedule 1 of the FOI Act. I also find that, in accordance with s.25(4) of the FOI Act, it would be practicable for the Agency to give the Applicant access to a copy of the Minutes with the exempt matter deleted. 31 For the reasons set out above, I am of the opinion that the decision of the Agency is not the correct and preferred decision and should be set aside and that in substitution of that decision there should be a decision to grant the Applicant access to a copy of the Minutes with the exempt matter as set out in this decision being deleted. That copy should be provided within 28 days of the publishing of this 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.