Appeal Panel - Internal CITATION: Chief Executive, Casino Control Authority; Star City & TABCORP v Preston, Star City & TABCORP (GD) [2003] NSWADTAP 64 APPELLANTS PARTIES: Chief Executive, Casino Control Authority Star City Casino Pty Ltd & TABCORP Holdings Ltd RESPONDENTS Alexander Preston, Star City Casino Pty Ltd & TABCORP Holdings Ltd; Alexander Preston & Chief Executive, Casino Control Authority FILE NUMBER: 039058 and 039059 HEARING DATES: 20/10/03 SUBMISSIONS CLOSED: 10/20/2003 DATE OF DECISION: 12/08/2003 Preston v Chief Executive, Casino Control Authority; Star City Casino Pty Ltd & TABCORP Holdings Ltd v Chief Executive, Casino Control Authority [2003] NSWADT 165 DECISION UNDER APPEAL: BEFORE: Chesterman M - ADCJ (Deputy President); Montgomery S - Judicial Member; Blake C - Member CATCHWORDS: statutory interpretation MATTER FOR DECISION: Principal Matter FILE NUMBER UNDER APPEAL: 023276 and 023296 DATE OF DECISION UNDER APPEAL: 07/11/2003 Casio Control Act 1992 LEGISLATION CITED : Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998 Preston v Chief Executive, Casino Control Authority; CASES CITED: Star City Casino Pty Ltd & TABCORP Holdings Ltd v Chief Executive, Casino Control Authority [2003] NSWADT 165 St Vincent Welch v Chief Executive Officer, Casino Control Authority [2001] NSWADT 89 APPELLANT N Sharp, barrister REPRESENTATION: K Eastman, barrister RESPONDENT A Preston ORDERS: 1 Set aside Order No. 3 in the Tribunal's decision of 11 July 2003; 2 Affirm the decision of the Chief Executive of the Casino Control Authority with respect to Document 13.1 Introduction 1 These appeals were brought by the Chief Executive, Casino Control Authority ('CCA') (file no. 039058) and by Star City Casino Pty Ltd ('Star City') and TABCORP Holdings Ltd ('TABCORP') (file no. 039059) against one of six orders made in a decision of the Tribunal on 11 July 2003 (Preston v Chief Executive, Casino Control Authority; Star City Casino Pty Ltd ('Star City') & TABCORP Holdings Ltd v Chief Executive, Casino Control Authority [2003] NSWADT 165). The Tribunal was constituted by Ms S Higgins, Judicial Member. Mr Alexander Preston was the sole Respondent opposing the appeals. 2 The proceedings in which this order was made arose in the following way. On 29 July 2002, Mr Preston wrote to the CCA requesting access, in accordance with the Freedom of Information Act 1989 ('the FOI Act'), to the following documents:- (a) All or any statement, document in print form, audio recording, audio types or any other form that have been given to your department or any of your staff or inquiry undertaking by the CCA in relation to me and issues related to me, by any individual, staff at Star City Casino, casino managers or staff or other organisations or individuals. (b) Star City Casino prepared a number of reports after conducting internal investigations undertaken by them or at the request of TABCORP (Gerrold Cripps, casino internal surveillance report and act). By Casino's voluntary act or under Casino Control Authority demand, your department have been given copies of these reports. 3 The CCA identified numerous documents that appeared to fall within this request. It also sought Star City's views about the disclosure of a number of the documents that appeared to relate to the business affairs of Star City. A deal of correspondence, outlined in the Tribunal's judgment at [4 – 9], passed between the CCA, Star City and Mr Preston. On 29 November 2002, the CCA completed a series of determinations (some of which involved internal reviews) providing for release of some of the documents to Mr Preston. 4 Star City (on 6 December 2002) and Mr Preston (on 17 December 2002) each filed an application, under s 53 of the FOI Act, for review by the Tribunal of some of these determinations. Subsequently, Star City joined TABCORP Holdings Ltd ('TABCORP'), its controlling entity, as a co-applicant. 5 At the hearing of these applications on 9 April 2003, the question of disclosure of ten documents (two of which were the same) remained in dispute. One of these was designated 'Document 13.1: patron transaction reports: A. Preston'. The CCA's determination relating to this document, made in an internal review, was that Mr Preston's request for access to it should be refused. 6 On 11 July 2003, the Tribunal made orders in respect of these ten documents. The accompanying reasons were issued in two versions. One version ('the open reasons') comprised reasons that were released to Mr Preston and to the public at large. At various stages of the other version ('the confidential reasons'), confidential passages were inserted. This version was released only to the CCA, Star City and TABCORP. 7 The order to which these appeals relate was Order No. 3. It was the only order relating specifically to Document 13.1. Its terms were as follows:- 3. The decision of the Chief Executive of the CCA in respect of document 13.1 is not affirmed, and Mr Preston's request in respect of this document is remitted to the CCA for further consideration, in consultation with Star City, in respect of deletions of the relevant exempt matters. Within 30 days of this decision, an edited version of the document is to be released with the deletion of the relevant exempt matters. 8 On 13 August 2003, by consent, the Tribunal granted a stay of this order until the present appeals had been determined. The issues raised in the appeals 9 In their separate challenges to the validity of the order under appeal, the CCA and Star City (the latter with TABCORP as co-applicant) contended that the Tribunal's reasons in relation to this order contained several errors of law. In outline, these grounds of appeal were as follows. 10 First, in ruling that Document 13.1 could be released to Mr Preston after deletion of 'exempt matter', the Tribunal had heard, but had not upheld, an argument to the effect that the document fell within the category of an 'exempt document' under cl 7 of Schedule 1 to the FOI Act (the 'business affairs' exemption). In their submissions to us in these appeals, the CCA and Star City contended that the Tribunal failed in its reasons to give proper consideration to this argument. 11 The Tribunal had also heard, but had rejected, an argument to the effect that Document 13.1 fell within the category of an 'exempt document' under cl 13(b) of this Schedule (the 'confidential material' exemption). CCA and Star City contended that, in so deciding, the Tribunal erred in two respects. These were (a) that it did not properly assess relevant evidence relating to an issue arising under cl 13(b)(ii) (whether disclosure of matter contained in the document could reasonably be expected to prejudice the future supply of information to the Government or an agency), and (b) that it failed to consider properly an issue arising under cl 13(b)(iii) (whether disclosure would, on balance, be contrary to the public interest). 12 At the hearing of the appeals, however, we indicated to the parties that initially we would receive argument, and deliver judgment, on a third ground of appeal only. This was because, if the CCA and Star City were successful in establishing it, this would provide sufficient grounds for upholding the appeals and setting aside the order made with regard to Document 13.1. It would not be necessary for us to consider the two grounds of appeal that we have just outlined, relating respectively to cl 7 and cl 13 of Schedule 1 to the FOI Act. 13 Although some aspects of the Tribunal's decision relating to Document 13.1 were discussed in confidential parts of its judgment, the argument relating to this third ground of appeal took place with Mr Preston present and the Tribunal open to the public. There is similarly no need for us to include confidential passages in these reasons. 14 This third ground of appeal concerns the relationship of a number of provisions of the FOI Act with each other and with one section – s 148 – of the Casino Control Act 1992 ('the CC Act'). 15 The provisions of the FOI Act in question are as follows: the definitions of 'exempt document' and 'exempt matter in s 6(1); s 16(1); s 25(1); s 25(4); and cl 12 to Schedule 1. The terms of these, so far as they are relevant for present purposes, are as follows:- 6 Definitions (1) In this Act:… "exempt document" means: (a) a document referred to in any one or more of the provisions of Schedule 1; or… "exempt matter" means matter by virtue of which a document is an exempt document;… 16 Right of access to agencies' documents (1) A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act. 25 Refusal of access (1) An agency may refuse access to a document: (a) if it is an exempt document, or… (4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate): (a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and (b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy. Schedule 1 Exempt documents 12 Documents the subject of secrecy provisions (1) A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act, whether or not the provision that creates the offence is subject to specified qualifications or exceptions. (2) A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is being made, would constitute such an offence. 16 So far as it is relevant to this appeal, s 148 of the CC Act is as follows:- 148 Secrecy (1) A person who acquires information in the exercise of functions under this Act must not, directly or indirectly, make a record of the information or divulge the information to another person, except in the exercise of functions under this Act. Maximum penalty: 50 penalty units. (2) Despite subsection (1), information may be divulged: (a) to a particular person or persons, if the Authority certifies that it is necessary in the public interest that the information be divulged to the person or persons, or (b) to a prescribed person or prescribed authority, or (c) to a person who is expressly or impliedly authorised to obtain it by the person to whom the information relates…. (3) A person cannot be required: (a) to produce in any court any document or other thing that has come into the person's possession, custody or control by reason of, or in the course of, the exercise of the person's functions under this Act, or (b) to divulge to any court any information that has come to the person's notice in the exercise of the person's functions under this Act. (4) Despite subsection (3), a person may be required to produce a document or other thing in a court or to divulge information to a court if: (a) the Authority certifies that it is necessary in the public interest to do so, or (b) a person to whom the information relates (or to whom the information contained in the document or thing relates) has expressly authorised it to be divulged to or produced in the court…. (7) This section does not prevent a person being given access to a document in accordance with the Freedom of Information Act, 1989, unless the document: (a) contains matter the disclosure of which could reasonably be expected to do any of the following: (i) prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, (ii) enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, (iii) prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or (b) is a document the disclosure of which would disclose any of the following information: (i) information concerning the business, commercial, professional or financial affairs of an applicant for a casino licence or a licence under Part 4, (ii) information obtained in the course of an investigation of an application for such a licence, (iii) information concerning the system of internal controls and administrative and accounting procedures for a casino. 17 There is no definition of 'document' in the CC Act, though in a definition of 'record' in s 3 of this Act the word 'document appears. A definition of 'document' does exist in s 6(1) of the FOI Act. Neither of these two statutory definitions provides any guidance on the matters to be determined in this appeal. 18 In non-confidential sections of its judgment, the Tribunal referred, at [81], to a submission, relating to Document 13.1, that the CCA could rely on 'the exemption contained in sub para. 148(7)(b)(iii) of the CC Act and hence cl 12 of Schedule 1 of the FOI Act'. The Tribunal held, at [88], that the CCA could indeed rely on this exemption, because this document contained 'information concerning the system of internal controls and administrative and accounting procedures for a casino'. 19 In the same paragraph, the Tribunal went on to hold, however, that Document 13.1 was 'only exempt to the extent it refers to matters coming within' this subparagraph and that it was 'practical to delete the exempt matters from the document and provide Mr Preston with a copy of the document with these deletions'. 20 This ruling furnished the basis for the Tribunal's order in relation to Document 13.1. In making it, the Tribunal accepted the proposition that the procedure set out in s 25(4) of the FOI Act could be invoked in relation to a document falling within s 148(7)(b) of the CC Act. Under this procedure, 'exempt matter' may be deleted from an 'exempt document' and the document, abridged in this way, may then be provided to an applicant under the Act. It was this proposition that Ms Sharp, counsel for the CCA, with support from Ms Eastman, counsel for Star City, challenged in the present appeals. 21 In an earlier, non-confidential section of its judgment, the Tribunal made some general observations on the effect of s 148(7) of the CC Act and the interaction of this provision with the FOI Act. For present purposes, one paragraph of the judgment, para [31], is of direct relevance to these appeals:- 31. In her submissions, Ms Sharp on behalf of the CCA, submitted that s. 148(7) of the CC Act provided for a limited right of access to documents under the FOI Act. In a sense she is correct, but the limitation arises in respect of the exemptions that apply under the CC Act. The first thing to notice is that the sub-section expressly preserves the right of any person to seek access of documents held by the CCA under the FOI Act. On receiving such a request the CCA is bound by each of the provisions of the FOI Act. Refusal of access is then dependent on the exemptions contained Schedule 1 of the FOI Act and in paragraphs 148(7)(a) and (b) of the CC Act being satisfied. If the document comes within one or more of the exemptions contained in Schedule 1 of the FOI Act, the CCA has a discretion as to whether or not to give the access applicant access to the document (s. 25(1)(a) FOI Act). However, where a document comes within the terms of paragraphs 148(7)(a) or (b) of the CC Act, Parliament has given the CCA no discretion as to whether to give access to the document or not, it must refuse access (see St Vincent Welch v Chief Executive Officer, Casino Control Authority [2001] NSWADT 89 at [20]). 22 At [32], the Tribunal observed that there was 'some overlap' between the terms of s 148(7)(a) of the CC Act and cl 4 of Schedule 1 to the FOI Act (this clause is headed 'Documents affecting law enforcement and public safety'). But the exemptions in s 148(7)(b), it said, had 'no direct equivalent' in the FOI Act, 'although, in some instances, they may fall under one or more of the general exemptions'. 23 At [37 – 38], the Tribunal drew attention to ss 124 and 125 of the CC Act, which require that a casino may not commence operations without the written approval of the CCA for its 'system of internal controls and administrative and accounting procedures' and specifies matters to be included in such a system. In [38], the judgment stated: As sub paragraph 148(7)(b)(iii) of the CC Act contains the same phrase as is contained in ss. 124 and 125, in my opinion, Parliament's intention was to exclude those documents which came within s. 124 from access under the FOI Act. The submissions made on appeal 24 The cornerstone of the argument put to us by Ms Sharp, on behalf of the CCA, was that where a document comes within the terms of paragraphs 148(7)(a) or (b) of the CC Act, the document as a whole is removed from the reach of the FOI Act. She submitted that these two paragraphs of the CC Act could not apply to only 'part of' a 'document'. 25 In the present case, she argued, Document 13.1 had been found to be (to quote from the opening words of paragraph (b) of s 148(7)) 'a document the disclosure of which would disclose' information of the kind described in subparagraph (iii). The necessary consequence, stipulated by s 148(7), was that it could not be a document to which a person might be 'given access… in accordance with the Freedom of Information Act, 1989' (to quote from the opening words of this subsection). It followed that the procedure, envisaged in s 25(4) of the FOI Act, for deleting exempt matter from this document and disclosing the remaining matter to Mr Preston in response to his application under this Act could not be invoked. 26 Ms Sharp developed this line of argument in the following way. She contended that a general prohibition set out in s 148(1) of the CC Act – that persons who have acquired information in the exercise of functions under that Act must not divulge that information except in the exercise of functions under that Act – operated to exclude the obligations of disclosure that would normally arise under the FOI Act (and indeed under other legislation such as the Privacy and Personal Information Protection Act 1989). The fact that subsequently, in s 148(7), the FOI 'regime' was 'picked up' to a limited extent confirmed this interpretation of s 148(1). It was relevant in this context to note that the CCA Act was passed later than the FOI Act. 27 She went on to point out that subsections (2) and (3) of s 148 set out limited exceptions to subsection (1). A third exception was created by s 148(7). What this provision did was to permit the granting of access to documents in accordance with the FOI Act, but not where the document in question fell within one or more of the categories defined in paragraph (a) or paragraph (b). 28 It was, she submitted, crucial to take account of the fact that s 148(7) set out these limitations on recourse to the FOI Act by reference, not to categories of information or 'matter', but to categories of 'documents'. In paragraph (b), which was the provision applying in this case, it was expressly stated that if a 'document' contained information falling within one or more of subparagraphs (i), (ii) or (iii), the opening words of the subsection, allowing for access to documents to be given to a person under the FOI Act, would not apply to that 'document'. 29 In this context, she argued, an analogy could be drawn with the procedure for discovery in civil proceedings. This provides for the parties to make existing documents available to each other for the purposes of the proceedings. It does not require them to disclose information (as distinct from documents) or to create new documents. Similarly, the FOI Act (except in the limited circumstances set out in s 25(4)) does not require that an agency or party providing access should disclose information or create new documents. Its task, in appropriate circumstances, is to make available documents that are already within its possession. 30 In response to a question from a member of the Appeal Panel, Ms Sharp contended that the terms of s 148(7) eliminated any possibility that where a document contained information within one of the subparagraphs of paragraph (b), it should still be lawful to disclose an edited version – that is, with this information deleted – because this would also be a 'document'. Her submission on this point was that the phrases 'a document' and 'the document', where appearing in s 148(7), all referred to the same thing. In consequence, access under the FOI Act to an edited version of a document containing such information – that is, to a different document – was not provided for. 31 In response to a further question from a Panel member, Ms Sharp submitted that because s 148(7) wholly excluded documents falling within paragraph (a) or (b) from the reach of the FOI Act, it was incorrect to treat such documents as 'exempt documents' covered by cl 12 of Schedule 1 to the FOI Act. This clause, headed 'Documents the subject of secrecy provisions', was intended to deal with the situation where a statute rendered it an offence to disclose specified matter but did not indicate whether access to a document containing such matter could or could not be sought under the FOI Act. In the present situation, however, s 148(7) of the CC Act did address this issue expressly. It wholly excluded any document containing matter or information within the specified categories from the operation of the FOI Act. 32 In support of her submissions, Ms Sharp relied on an authority to which the Tribunal's judgment referred (at [29]), namely, St Vincent Welch v Chief Executive Officer, Casino Control Authority [2001] NSWADT 89. In this case, an application under the FOI Act was made to the CCA for access to a Report, held in the CCA's files, by the Casino Surveillance Division of the Department of Gaming and Racing ('the Report'). After access had been refused by the CCA, the applicant sought review of this decision in the Tribunal. 33 Mr M A Robinson, Judicial Member, affirmed the CCA's decision. He found, at [18 – 19], that the Report fell within s 148(7)(b)(ii) of the CC Act. At [20], he set out the significant consequence of this finding, so far as these appeals are concerned. Ms Sharp relied in particular on the final sentence of this paragraph: 20. As the Report is protected by the secrecy provision in section 148(7)(b) of the CC Act, and as there is no other power in the FOI Act that is applicable in the present circumstances, the Tribunal is unable to continue to deal with the matter under the FOI Act. While it would have been better for Parliament to have placed the CC Act provision in Schedule 2 of the FOI Act where exempt bodies are listed, the intention of Parliament is clear. Documents covered by section 148(7) of the CC Act, once properly held to be so, are, in effect, exempt from production under the FOI Act. 34 Mr Robinson went on to hold that the Tribunal also lacked power under the CC Act to exercise the discretion given to the CCA by s 148(2) or (4) to release the Report to the applicant on the ground that this was necessary in the public interest. 35 Ms Sharp also drew our attention to passages in the speech of the Chief Secretary and Minister of Administrative Services introducing the Second Reading of the Casino Control Bill 1992 in the Legislative Assembly (Hansard, 5 March 1992). She noted in particular that the Minister, immediately before outlining the categories of documents set out in paragraphs (a) and (b) of s 148(7), said: 'Certain categories of documents are placed outside the scope of the Freedom of Information Act…'. 36 Ms Sharp also offered some observations on the operation of s 25(4) of the FOI Act, and on s 27, which is the provision governing the means whereby applicants under the Act may be granted access to a document under the Act. We do not think it necessary to set out these submissions. 37 Ms Eastman, counsel for Star City and TABCORP, supported, with some elaborations, these submissions by Ms Sharp. 38 Mr Preston, the sole Respondent opposing these appeals, appeared in person. He addressed us on various other aspects of the Tribunal's order regarding Document 13.1. He argued for instance, that the material which he believed to be contained in this document could not fall within s 148(7) of the CC Act because its confidentiality had not been preserved. But he made no submission on the issues of statutory interpretation raised in the ground of appeal with which we are dealing in these reasons. We therefore did not have the benefit, unfortunately, of submissions directly opposing those of Ms Sharp. The conclusions of the Appeal Panel 39 As we understood the Tribunal's reasons underlying the order that it made regarding Document 13.1, they depended on the proposition that the effect of s 148(7)(b)(iii) of the CC Act was to bring the documents to which it applied within the scope of cl 12 of Schedule 1 to the FOI Act. In the terms of the heading to this clause, it brought them within the statutory category of 'Documents the subject of secrecy provisions'. This interpretation of the Tribunal's reasons receives support from its statement, at [81], that the argument put to it by Ms Sharp for the CCA 'relied on the exemption contained in sub para. 148(7)(b)(iii) and hence cl 12 of Schedule 1 to the FOI Act' (emphasis added). 40 One effect of treating such a document as falling within cl 12 of the Schedule to the FOI Act is that it falls within the category of 'exempt document' under the Act. This in turn has the potential to bring it within the scope of s 25(4), which states, in substance, that an agency 'shall not refuse access to an exempt document' if the procedure of deleting the 'exempt matter' and releasing the edited document is practicable and acceptable to the applicant. 41 In relation to each of three other documents involved in these proceedings, the Tribunal made a finding (at [73], [76] and [79] respectively) that it was an 'exempt document' under a clause of the Schedule (cl 6), but that the exempt matter could be deleted and the edited document released to Mr Preston. In none of these cases, however, was s 148(7) of the CC Act involved. 42 The Appellants' submissions challenged the Tribunal's line of reasoning regarding Document 13.1 by asserting that s 148(7)(b)(iii) of the CC Act wholly excluded any documents to which it applied from the scope of the FOI Act, as opposed to merely bringing them within cl 12 of Schedule 1 to the latter Act and thereby causing them to be classified as 'exempt documents'. 43 We have not found this question of statutory interpretation to be an easy one. The opening words of s 148(7) do not expressly exclude the documents covered by the subsection from the scope of the FOI Act. But after careful consideration we have concluded that, implicitly, these words are intended to have this effect. 44 In reaching this conclusion, we accept, broadly speaking, Ms Sharp's submissions and we agree with the Tribunal's conclusion along similar lines (as we interpret it) in St Vincent Welch v Chief Executive Officer, Casino Control Authority [2001] NSWADT 89. We would add only three further observations. 45 First, the Tribunal's decision in this case apparently relies on a Parliamentary intention that s 148(7) of the CC Act should be read in conjunction with cl 7 to Schedule 1 of the FOI Act. But although their headings share a common term, 'secrecy', their language is such that it is not easy to link the two provisions in this way. If Parliament had intended to treat documents within s 148(7) as 'exempt documents' within the FOI Act (whether under cl 7 or through creating, in effect, another separate category of 'exempt documents'), it could easily have done so by express words. 46 Secondly, it is useful to consider the situation where all the matter or information in a document is outside the categories defined in paragraphs (a) and (b) of s 148(7), but the disclosure of such matter or information to the public at large would involve the person divulging it in the commission of an offence under s 148(1). The evident intent of s 148(7) is that such a document is not to be excluded from the operation of the FOI Act, but that individual members of the public should be able, despite the broad scope of the prohibition in s 148(1), to seek access to it 'in accordance with' this Act. The phrase 'in accordance with' implies that it will still be open to the CCA, as the relevant agency, to claim that it is an 'exempt document'. Amongst other things, this may open the way for a decision, pursuant to s 25(4), that the exempt matter should be deleted and the edited document released. Alternatively, it may lead to the document being released in its entirety, or to access being wholly denied. 47 By contrast, the intent of s 148(7), as we interpret it, is to ensure that any document which contains 'matter' or 'information' falling within one or more of the six specified categories is intended to be set apart from this regime and from this range of alternative outcomes. A wholly different approach is implicitly intended, namely, that the document should, as the Tribunal itself said in passing at [38], be 'excluded' from 'access under the FOI Act'. 48 Thirdly, on the footing that a document within s 148(7) is not to be treated as an 'exempt document' under cl 7 to Schedule 1 of the FOI Act, and therefore not as potentially open to the editing out of 'exempt matter' under s 25(4), there remains no basis for a decision that it could be so edited and then released. No other provision in either the FOI Act or the CC Act authorises such a procedure. 49 For these reasons, we allow the appeals against the Tribunal's order relating to Document 13.1 (Order No. 3). This order should be set aside and the decision of the Chief Executive of the CCA, denying access to this document, should be affirmed. 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