Re N Macdonald Pty Limited and Department of Territories and Local Government [1985] AATA 258 (24 September 1985)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: N. MacDONALD PTY LIMITED
And: DEPARTMENT OF TERRITORIES AND LOCAL GOVERNMENT
No. A.84/107
Freedom of Information

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
Justice J.D. Davies (President)
Mrs R.A. Balmford (Senior Member)
D.R.S. Craik (Member)

CATCHWORDS

Freedom of Information - applicant conducted motel business - complaints by patrons - whether names and addresses communicated in confidence - agency generated documents - whether internal working documents - application of s.45(2) - whether legal proceedings hindered if documents not released

Freedom of Information Act 1982 (Cth) - ss.36, 45

Re Maher and Attorney-General's Department (No. V.84/291A, delivered 17 July 1985)

Re Munsie and Director-General of Social Security (1983) 5 ALD 189

MacDonald Pty Limited v Hamence [1984] FCA 11; (1984) 53 ALR 136

HEARING

CANBERRA
24:9:1985

ORDER

1. The decision under review is affirmed.

2. Leave is reserved to the parties to apply for any further or other order as may seem meet.

DECISION

This is a review of a decision refusing to grant access under the Freedom of Information Act 1982 (Cth) ("the FOI Act") to certain documents held by the Canberra Tourist Bureau.

2. The applicant conducts a motel in the Australian Capital Territory. Complaints had been made by patrons to the Tourist Bureau with respect to the conduct of the motel. By letter dated 22 February 1984, the solicitors for the applicant made the following request :
"We advise that our client requires access to all

documents held by your client, the Canberra
Tourist Bureau and/or its officers, in relation to
the Acacia Motor Lodge, Norman MacDonald or N.
MacDonald Pty. Limited.

We advise that this application is made pursuant
to the Freedom of Information Act 1982."

3. Prior to and during the hearing by this Tribunal, most of the documents sought were released to the applicant. In the end, documents numbered 3 and 23 were withheld in their entirety and documents numbered 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 27, 28 and 30 were released under s.14 of the FOI Act, subject to the deletion in accordance with s.22 of the FOI Act of the names and addresses of the persons or the organisations who had participated in the lodging of complaints with the Tourist Bureau.

4. Originally, in support of the claim for exemption, reliance was placed upon ss.36, 40(1)(d), 41, 43 and 45 of the FOI ACT. At the hearing, only s.45 was relied upon. That section provides, inter alia,

"45.(1) A document is an exempt document if its
disclosure under this Act would constitute a
breach of confidence."

5. With respect to that and an analogous section, s.33(1)(b), it was said recently in Re Maher and Attorney-General's Department (No. V.84/291A, delivered 17 July 1985) :

"Sections 33(1)(b) and 45 (the general
confidentiality exemption) of the FOI Act are
concerned not only with communications which would
be protected by courts under the common law
principles with respect to express or implied
obligations of confidence or by courts of equity
with respect to communications made under special
relationships but also with information that was
communicated to an agency in confidence, that is
to say, information that was communicated and
received under an express or inferred
understanding that the communication would be kept
confidential. ...

It is not to be expected that precedents can be
found in the legal authorities for all the types
of circumstance that meet that criteria. The
courts of common law require there to be an
express or implied duty of confidence, a breach of
which would give rise to an action for damages.
Courts of equity require a fiduciary or other
special relationship and for it to be established
that the information that was in fact communicated
was confidential and ought to be protected. In
the past, courts have not been much concerned with
communications to or between agencies of the
Commonwealth for, until the coming into operation
of the FOI Act in this country, the disclosure of
such information could be enforced only under the
principles established in the Crown privilege
cases (see, eg, Sankey v Whitlam (1976) 142 CLR
1). There are few precedents which deal directly
or even indirectly with the problem which the
Tribunal now has to consider.

It is clear, however, from such authorities as
there are that a conclusion may be drawn that
information was communicated in confidence either
because of the particular relationship between the
parties or because the information communicated
was and would be recognised to be of a
confidential nature. The relationships of
solicitor and client, of doctor and patient, of
priest and penitent and of husband and wife are
special relationships of the type which prima
facie give rise to a relationship of confidence.
It has been recognised that communications between
a person seeking advice and an adviser may well
give rise to a relationship of confidence.
Negotiations may give rise to a confidential
situation. In the administrative field, it has
been recognised that communications within Cabinet
or between Cabinet and the Crown have a particular
element of confidentiality about them. In the
present case, the letter from Mr C.S. Stark,
Exhibit TC.19, suggests that communications
between Governments are to be treated as having a
special confidentiality about them.

If a communication includes confidential
information, that fact may, when taken with the
surrounding circumstances, give rise to an
inference that the information was communicated in
confidence, but it may not be simple to identify
information that was and would be recognised to be
confidential. ...".

6. The documents which are now in issue arose out of events which happened when at different times students from two schools stayed at the motel. With respect to one school, a letter of dissatisfaction was written to another organisation. A copy of that letter (document 3) subsequently went from that organisation to the Tourist Bureau. And shortly after writing the letter, the author wrote (document 23) to the Manager of the Tourist Bureau enclosing a copy of the letter and stating, "As you would appreciate - if released it would fall squarely into the realm of libel, - therefore I would appreciate your co-operation in non-release". With respect to the other school, a letter of dissatisfaction (document 8) was written to the Tourist Bureau. The letter concluded :

"... I have enclosed copies of statements
(documents 9 to 18) from children and teachers
concerned, also a copy of a letter to the Canberra
Accommodation Industry Association and their
reply (documents 6 and 7).

To me the behaviour of this man leaves a lot to be
desired and I would like to know if their (sic) is
some way we can seek recompense from him for the
Non use of the room he locked the two girls out of
- Room 31."

7. An affidavit has been received from the author of that letter which states :

"2. I expected the contents of my letter and the
attached statements of students and teachers to
remain confidential.

3. I was always of the view that my complaint
would remain anonymous and I certainly do not want
Mr. McDonald to know who I am and where I live.

4. The attachments to my letter were actual school
documents and were sent to show how serious the
complaint was and to corroborate it. It was never
my intention that they be disclosed and I would
not have sent them if I had known they were not
going to be kept private.

5. I was annoyed with the treatment of my daughter
and the school by Mr. McDonald and I could not
understand why payment could still be demanded for
a room which was not used at the direction of the
owner himself. I regarded my letter as simply a
statement of the facts corroborated by others. I
wrote to Mr. Hamence for advice, at the suggestion
of Mr. Gorman of the Canberra Accommodation
Industry Association, not for an investigation."

8. In this review, it is not necessary to determine whether or not the complainants intended that their complaints should remain entirely confidential, for almost all the documents have been released subject to the deletion of the names and addresses of persons and organisations. The principal issue is whether those names and addresses were communicated under an express or tacit understanding that they would be held in confidence.

9. With respect to the first school, it is not difficult to come to the conclusion that the information was communicated and received in confidence. There is nothing in the letters of dissatisfaction with respect to the first school which required the taking of action to reimburse the patrons in any way. The first letter written with respect to that school was written to an organisation that was not subject to the FOI Act and the letter written to the Tourist Bureau was expressly stated to be confidential. These communications were voluntary, they did not seek to gain anything by way of return and confidentiality was expressly claimed in the one letter to the Tourist Bureau. As complaints about the conduct of others is an area in which confidentiality is frequently expected and understood, we are satisfied in the present case that the communications with respect to the first school (documents 3 and 23) were made and received in confidence and accordingly that s.45 applies to them and that they are exempt under the provisions of that section.

10. The communications with respect to the second school (documents 6 to 18) give rise to more problems, if only because it is difficult to grasp what the author of the letter to the Manager of the Tourist Bureau (document 8), to which copies of other documents were attached, intended to achieve. The letter to the Tourist Bureau did not itself ask that the Tourist Bureau take any action against the motel but it is difficult to read the letter as seeking simply advice as to how recompense could be sought for the non-use of Room 31. After all, a letter to the motel seeking a refund was the obvious first step to take to achieve that. Moreover, the accompanying documents included statements from teachers and students, a course which suggested that there was a formal complaint laid on which action was sought. Indeed, one of the accompanying statements (document 10) contained the following :

"Answers to the above two points would be
appreciated and also as One Room was not used by
these girls I think some sort of Refund should be
made. Also an apology from the Manager would be
appreciated to the School and the Girls."

It is also relevant that the first letter of dissatisfaction (document 6) with respect to this school had been written to the President of the Canberra Accommodation Industry Association and that letter to the President had included the following :

"I would also appreciate some sort of action taken
against the Manager, Mr. McDonald for his
harrassing (sic) the Girls and Teachers and also
for entering the Girls Rooms without first
knocking.

It would be appreciated if you could look into
this Complaint for me and let me know of any
further action the School and I may be able to
take on the matter."

The President of the Canberra Accommodation Industry Association, in response (document 7) expressed his inability to deal with the complaint as "our Association has no legal or disciplinary authority over member motels". The letter (document 8) subsequently written to the Manager of the Tourist Bureau, a person with authority in the Australian Capital Territory, did not expressly request anything other than advice, particularly as to a means of seeking recompense for the non-use of Room 31; yet it implied more than that and did in fact lead to action being taken by the Tourist Bureau against the motel.

11. Had we personally written a letter of that type to a person in authority, we would have expected the recipient to disclose it to the person whose actions were complained of, but the author of the letter to the Manager of the Tourist Bureau has deposed that "I was always of the view that my complaint would remain anonymous .... The attachments to my letter were actual school documents and were sent to show how serious the complaint was and to corroborate it. It was never my intention that they be disclosed ...".

12. Complaints to Government departments are often treated precisely in the manner to which the author of the letter has deposed that she expected that her complaint would be dealt with (see, eg, Re Munsie and Director-General of Social Security (1983) 5 ALD 189. Her complaint was understood and dealt with precisely in that manner.

13. This is undoubtedly a borderline case, but on the evidence before the Tribunal, we incline to the view that the subject communications to the Tourist Bureau were written in the expectation of confidentiality as to the persons who were making the complaint and that they were received and understood in that light. In these circumstances, we are satisfied that s.45 applies to them and that they are exempt under the provisions of that section.

14. We are therefore of the view the deletions which were made with respect to the names and addresses in the correspondence received by the respondent (documents 6 to 18) were correctly made.

15. In support of the non-disclosure of the subject documents, counsel for the respondent did not rely upon any provision of the FOI Act other than s.45. As a result, only the question of confidentiality was argued before the Tribunal. However, reference must be made to the provisions of s.45(2) which read :

"45.(2) Sub-section (1) does not apply to any
document to the disclosure of which paragraph
36(1)(a) applies or would apply, but for the
operation of sub-section 36(2), (5) or (6), being
a document prepared by a Minister, a member of the
staff of a Minister, or an officer or employee of
an agency in the course of his duties, or by a
prescribed authority in the performance of its
functions, for purposes relating to the affairs of
an agency or a Department of State."

Section 36 provides, inter alia,

"36.(1) Subject to this section, a document is an
exempt document if it is a document the disclosure
of which under this Act -

(a) would disclose matter in the nature of, or
relating to, opinion, advice or
recommendation obtained, prepared or
recorded, or consultation or deliberation
that has taken place, in the course of, or
for the purposes of, the deliberative
processes involved in the functions of an
agency or Minister or of the Government of
the Commonwealth; and

(b) would be contrary to the public interest.

.....

(5) This section does not apply to a document
by reason only of purely factual material
contained in the document."

16. In addition to the correspondence which was received from or in respect of the schools, the documents in issue include documents which were created in the Tourist Bureau. Document 2 is described as being a document of 2 pages but it appears in fact to constitute two different documents. The first is a very brief note of a telephone call from a person connected with the first school. That document is not a document to which s.36 applies as it is not a document that discloses matter in the nature of opinion, advice or recommendation or any matter in relation to consultation or deliberation. It is simply a very brief note of a telephone call. Document 27 is a hand-written summary of complaints with respect to the subject motel and document 28 is a typewritten summary of such complaints. Neither document appears to fit the description of matter in the nature of or relating to opinion, advice or recommendation obtained prepared or recorded or consultation or deliberation which has taken place in the course of or for the purposes of the deliberative processes involved in the functions of an agency.

17. Accordingly, in respect of these documents, s.36 does not apply and the provisions of s.45(1) do apply. In the circumstances - the only deletions made are deletions of identifying particulars - disclosure of these documents would, in our opinion, disclose information given in confidence and would therefore be a breach of confidence. Those documents are therefore exempt under s.45.

18. However, the second page of document 2 is a document which discloses matter in the nature of advice and recommendation prepared in the course of and for the purposes of the deliberative processes involved in the functions of an agency. The document states a problem and recommends to the manager action to be taken. Therefore, it is a document of the type specified by s.36(1)(a). The document also meets the other criteria set out in s.45(2). Therefore, s.45(1) does not apply to it and, if it is exempt, the exemption must be found in s.36.

19. The material omitted from this document is of a factual nature but s.36(5), which restricts the ambit of the exemption, uses the expression "by reason only". The sub-section does not require factual material to be disclosed if that material has a quality relevant to the FOI Act, such as confidentiality, which would make its disclosure contrary to the public interest.

20. We therefore turn to consider the public interest element prescribed by s.36(1)(b).

21. In the present instance, it seems to us that the names and addresses were communicated in confidence and that it is in the public interest that that confidence be protected. It does not appear from the material before the Tribunal that the complaint was made maliciously or otherwise than in the interests of the tourist industry in Canberra. It was only one of a number of complaints of the same general nature which appear to have come from a number of unrelated persons and organisations. It is in the public interest that the confidentiality of such communications should be protected.

22. One reason in favour of disclosure put forward by Mr F.J. Purnell, of counsel, who appeared for the applicant, was that the applicant wished to take legal proceedings against the persons responsible for the complaints to the Tourist Bureau. Mr Purnell said that, on receipt of the complaints, the respondent, after discussing the issue in general terms with Mr MacDonald, took the unusual course of omitting the motor lodge from the list which it distributed of accommodation places in the Australian Capital Territory. On 18 November 1983, the Tourist Bureau used black texta to black out the name of the applicant's lodge from existing copies of the listing guide. On 23 November 1983, the matter was discussed in general terms with Mr MacDonald, but until the subject documents were disclosed to the applicant on its application under the FOI Act, the specific complaints which led to the decision were not put to the applicant. Mr A.N. Lamb, who is acting Canberra manager of the Canberra Tourist Bureau, conceded that the applicant could reasonably have expected a loss of business and a loss of money as a result of the delisting and that the decision to delist was based solely upon the complaints received. The name of the applicant's lodge was not restored to the list until March 1984.

23. Those facts would strongly support disclosure if indeed it were shown that legal proceedings would be frustrated or hindered if the information were not disclosed. But there is presently no legal proceeding on foot. The applicant took proceedings against the respondent under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Those proceedings were dismissed by Mr Justice Neaves on 10 February 1984 on the sole ground that the action taken by the respondent on the complaints was not a decision to which the Administrative Decisions (Judicial Review) Act applied, for it was not a decision taken under an enactment. (See MacDonald Pty Limited v Hamence [1984] FCA 11; (1984) 53 ALR 136). No other proceeding has been commenced by the applicant against the respondent. Further, the evidence before the Tribunal does not establish that an arguable case exists for any proceeding against the person or organisation identified in document 2 and, if there were such an action, then access to all the documentation claimed to be exempt could be obtained through discovery in the action. The principles enunciated in the Crown privilege cases suggest that such discovery would be made.

24. In the absence of information showing that the non-disclosure of the material claimed to be exempt would frustrate or hinder a proceeding in a Court, we are of the opinion that protection of the information claimed to be exempt would be in the public interest. Such parts of the document as have not been disclosed are therefore exempt by virtue of s.36.

25. Documents 5 and 30 are in a like category and are also exempt pursuant to s.36.

26. In the course of argument, Mr S. Dalton, who appeared for the respondent, mentioned s.41 of the FOI Act as a ground of exemption. It does not appear to us that that section is appropriate to the present matter. The complainants were not writing about their own personal affairs but about the operation of the motor lodge as it affected them.

27. For these reasons, we would affirm the decision under review and would reserve leave to the parties to apply for any further order as may seem meet.