ADMINISTRATIVE APPEALS TRIBUNAL - GENERAL ADMINISTRATIVE DIVISION

RE MANN AND THE AUSTRALIAN TAXATION OFFICE

R K TODD, Deputy President R A SINCLAIR and W A DE Maria, Members

14 June 1985 -

Deputy President This is an application for review of a decision made under the Freedom of Information Act 1982 (the FOI Act) refusing access, in whole or in part, to a number of documents in the possession of the agency and the subject of a request made by the applicant for access to:

"All annual returns, letters, file notes, advice given, advice received, and decisions made concerning the Canberra Hospitals Private Practice Trust Fund.

"All letters, file notes, advice given, advice received, and decisions made concerning the amended contract of service between salaried specialists employed by the Capital Territory Health Commission and the said Commission and approved by the Australian Taxation Office.

"Please note that I shall accept any deletions which refer specifically to the taxation situation of any individual beneficiary of the said trust fund. I seek access only to Trust fund documents to which, as a beneficiary. I am legally entitled."

2 The background to this matter is set out in two previous decisions of the Tribunal, namely Re Mann and Capital Territory Health Commission (1983) 5 ALN N212 and 5 ALN N368, which were handed down at different stages of the hearing of one application for review. The Reasons for Decision handed down on 14 December 1983 in particular set out an account of the history of the applicant's appointment in September 1974 by the then Canberra Hospitals Board to the position of Senior Specialist in General Surgery at the Canberra Hospital, now the Royal Canberra Hospital. Pages 8 and following of those Reasons set out the conditions of service that applied to the applicant's appointment, the history of the establishment in 1975 of the Capital Territory Health Commission (CTHC) and of a trust fund entitled the "Private Practice Trust Fund" (the fund) into which were to be paid all fees due to full-time medical officers employed by the CTHC for private practice within "the ACT Health Commission Establishment". We do not propose to take the story beyond there. The fact is that the applicant obviously deeply resents, and is strongly critical of, the history of the administration of this scheme and, in turn, of the administration of the liability to income tax of the persons participating in the scheme based upon the trust fund. It has also to be said that the applicant has a great deal of difficulty in distinguishing what is needed to be demonstrated for the purposes of establishing his right to access to the documents in question under the FOI Act from what he has identified as the merits of the matter as a whole. But it is not necessary for an applicant to establish a particular "need to know" in order to establish a right to access. Nor does it even strengthen an applicant's case, save where a question of public interest arises and an applicant is able to demonstrate that his personal involvement in the matter may cause an element of public interest in his "need to know" to arise (see Re Peters and Department of Prime Minister and Cabinet (No 2) (1983) 5 ALN N306 and Re Burns and Australian National University, (A83/113, 1 February 1985), to demonstrate some special interest in the document sought. And in this case it is very important to recognize, as we do, that the applicant has no personal stake in the story of the Trust Fund or in the taxation administration of its beneficiaries. He has sought to take the high ground in the matter, and has nothing to gain or lose personally from the release of the documents, or from the acceptance of his contentions in relation to the course of administration of the merits of the matter. The point is that he has, rightly or wrongly, become convinced that in a number of areas administration has been much at fault, and he wishes to expose what he sees as having been wrong. But the applicant has no greater or lesser right to access to the documents than has any citizen unconnected with the CTHC and its associates and employees. It is likewise a consequence that as far as the Tribunal is concerned the merits of the applicant's underlying claims are not relevant to the performance by it of its functions. The claim to access must be determined in accordance with the principles applicable to claims of exemption under the FOI Act.

3 It follows that we can now proceed to consideration of the individual claims of exemption. These fall under five headings, attributable to claims under ss 36(1), 38, 40(1)(c), (d) and (e), 41 and 45 of the FOI Act. A number of documents were, in the lead up to the hearing or during the course of it, released to the applicant, and in respect of others the applicant withdrew his claim.

4 We propose to deal first with the claims of exemption based on ss 38and 40, for once they are disposed of the number of documents remaining are relatively few in number.

Section 38 claims

5 Section 38 provides:

"38. A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications."

Section 16(1)and (2) of the Income Tax Assessment Act 1936 (the ITA Act) provide:

"16(1) In this section, unless the contrary intention appears-

'officer' means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment of employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax;

'Royal Commission' means a Commission that has been commissioned by the Governor-General, by Letters Patent in pursuance of the Royal Commissions Act 1902 or of any other power, to conduct an enquiry, and includes any member of such a Commission.

(1 A) …

(2) Subject to this section, an officer shall not either directly or indirectly, except in the performance of any duty as an officer, and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any such information so acquired by him."

The claim is that the documents which the agency contends are exempt pursuant to s 38 of the FOI Act contain information to which s 16(2) of the ITA Act specifically applies, and that s 16(2) is an enactment of the kind referred to in s 38 of the FOI Act. The Tribunal generally has had considerable difficulty with the application of s 38 in the light of the principles set forth in New Corp Ltd v National Companies and Securities Commission (1984) 6 ALD 83 (News Corp), and in Kavvadias v Commonwealth Ombudsman (No 1) (1984) 6 ALD 47 ( Kavvadias). There are two streams of reasoning in subsequent Tribunal decisions, although in only one case before the Tribunal was commentary upon s 38 ultimately necessary for the purposes of the Tribunal's decision. The two streams are as follows:

(a) Narrower construction of s 38:

(i) In Re Actors' Equity Assoc of Australia and Australian Broadcasting Tribunal (1984) 6 ALD 68 (Actors' Equity), the decision in which was handed down on 7 May 1984, the Tribunal applied its understanding of News Corporation and Kavvadias to the provisions of s 106B of the Broadcasting and Television Act 1942 with the effect that it found that s 106B(1) and (2) were not, taken together, a provision of the kind referred to in s 38 of the FOI Act. They did not sufficiently specify the nature of the information in question for the purposes of s 38. There was not an adequately "direct and explicit" reference to the nature of the information in question itself. (See Kavvadias at 51.)

Section 106B of the Broadcasting and Television Act had to be read in the context of s 106 and s 106A, the latter of which contains a form of "freedom of information" procedure reposed in the Broadcasting Tribunal. The setting of that provision is therefore somewhat different from that of s 16 of the ITA Act, and in any event the whole matter was eventually disposed of by the Tribunal on the footing that s 43(1)(c)(i) of the FOI Act conferred exemption on the documents to which access was sought. The construction by the Tribunal of s 38 was thus not in the long run determinative of the matter.

(ii) In Re Z and Australian Taxation Office (1984) 16 ATR 313; 6 ALD 673 (Re Z), the decision in which was handed down on 24 October 1984, the Tribunal had to consider the question of the operation of s 38 of the FOI Act in relation to s 16 of the ITA Act. In its Reasons for Decision the Tribunal referred to the decisions of the Federal Court in News Corporation and Kavvadias, and to the decisions of the Tribunal in Actors' Equity and Re Murtagh and Commissioner of Taxation (1984) 15 ATR 787; 6 ALD 112 (Murtagh) which is referred to below and which was handed down on 5 July 1984. In particular the Tribunal in Re Z referred to a passage in the Reasons for Decision in Murtagh which conflicted, as indicated below, with the reasoning in Actors' Equity. The Tribunal in Re Z at (ATR) 318; (ALD) 679 relied upon the following passage in Kavvadias at 52:

"If there is an apparent conflict between s 11 and some other provisions of the law, it will have to be resolved according to ordinary principles. Section 11 is expressed to be subject to the Act and there are many provisions of the Act which would go to maintain the policy against disclosure displayed in other enactments. Section 38 is one of those. As we have already intimated it seems, obviously enough, to be designed to avoid identifying in a list a number of existing enactments, and also the necessity of adding to the list from time to time by amendment.

"Reference to the other sections of the Act dealing with exempt documents, such as, for example, s 41, dealing with protection where confidentiality is involved, shows at the one time that the policy of other Acts in relevant respects is preserved, and that this is done by the operation of the Act. The scope of other provisions restraining disclosure by officers is not to be given an expansive construction so that they are brought within s 38 ."

The tribunal in Re Z went on to observe at (ATR) 318; (ALD) 679 that "one of the principal objects of s 16(2) is still achieved if consideration is given, according to the circumstances, to the most appropriate grounds for exemption granted by the FOI Act …," and considered that in so finding the Tribunal was not offending s 32 of the FOI Act. It was not construing s 38 by referring to s 41, but rather observing at 680, as the Federal Court had observed, "that the presence of sections such as s 41 indicates a preservation of the policy of protection of confidentiality contained in income tax legislation". As will be seen later, we agree, with respect, this line of argument.

The Tribunal also considered and rejected arguments that, read as a whole, the ITA Act constitutes a code which brings s 38 of the FOI Act into operation, and that combination of references to the affairs of other persons and to the obtaining of information with respect to those affairs under the ITA Act enables the comprehension of a genus of information sufficient to invoke the provisions of s 38, and distinguishable from the "almost limitless nature" of information received by officers of the Ombudsman in the course of their duties. The Tribunal concluded at 681:

"In our opinion, these qualifications are not sufficiently explicit to enable it to be said that there is a direct and explicit reference in the section to the nature of the information itself. Information relating to the affairs of a person and obtained under the Act could hardly be more general. The real purpose of reference to the affairs of a person lies in the distinction it draws concerning the affairs of the officer himself. The actual words of the definition are 'respecting the affairs of any other person' (ie than the officer)."

(b) Broader construction of s 38

(i) In Murtagh at (ATR) 804; (ALD) 130 the Tribunal said:

"However, there are some passages in the documents which refer to Mr X and in part to his own personal affairs. We think that s 38 of the FOI Act 1982 exempts such disclosure by giving effect to the provisions of s 16(2). We think that s 16(2) is a provision of the type referred to in s 38 because it specifies the information not to be disclosed, that is to say, the information relating to the affairs of any other person. Such a provision specifies 'the nature or quality of information which is not to be disclosed' for the purposes of s 38 ."

"The Tribunal did not refer to News Corp or Kavvadias, or to Actors' Equity. But as pointed out in Re Z, the Tribunal in Murtagh did not in the event have to decide the s 38 point having regard to its upholding of other claims of exemption.

(ii) In Re Lianos and Secretary to the Department of Social Security (No N83/893, 19 February 1985) ( Lianos) the Tribunal again did not, having regard to its findings in relation to s 41, have to consider s 38, but in view of the divided views entertained by the Tribunal the aforementioned developments were in the Reasons for Decision very fully rehearsed and the opinion formed that s 17 of the Social Security Act 1947, which is similar in effect, although not in precise drafting terms, to s 16 of the ITA Act, is an enactment of the kind referred to in s 38. It would be an injustice to the Reasons for Decision to summarise them here. We simply refer the reader of these Reasons to them in full, not least because in many respects they echo the arguments stated in this matter by Miss Kenny of counsel who appeared for the respondent.

(iii) There was also a reference to the point in the Tribunal's decision in Re Hudson and Department of Social Security (1984) 6 ALN N305, in a passage set out in para 40 of Lianos. That passage concluded:

"We incline to the view that the Social Security Act seeks to establish a public interest in the confidentiality of information supplied under it by a person seeking benefits as against the enquiries of other persons; and that Mrs Hudson's application seeking as it does to rely upon rights given under the FOI Act, should fail on this basis also."

As to this we must make the immediate comment that in our opinion the operation of provisions like s 17 of the Social Security Act and s 16 of the ITA Act is related to the discipline and integrity of officers and not to the ambit of public interest in confidentiality or disclosure. We refer to this in paras 10 and 11 below.

(iv) Re Munsie and Director-General of Social Security (1983) 5 ALD 189 contained a short statement to the same effect.

(v) On one view Re Canopy Manufacturers Pty Ltd and Department of Aviation (N84/56, 25 January 1985) is an example of the broader view, but in fact we consider that even on the narrower view the conclusion there arrived at would have followed in any event.

6 The task of the Tribunal in this case is thus a difficult one. It is not one which it can avoid, although we find it hard to understand why the problem has been left with us. The respondent did not appeal in Re Z. In fact the time for doing so expired a few days before the commencement of the hearing of the present application for review. When the question of the possible presentation of further written submissions in the present application came on before the presiding member for directions in March of this year, he took the opportunity to invite the respondent to state a case to the Federal Court in order that the matter might be resolved, but upon the terms that, the matter being one of public importance, deserving full argument and representation on both sides, the respondent indemnify the applicant as to his costs. This suggestion was, after consideration, declined. The Tribunal was not prepared to require a case to be stated of its own motion as it would, it considered, be exposing an applicant who had chosen to present his own case, and who was in no way responsible for the difficult situation that faced the Tribunal, to an unreasonable risk as to costs. We mention these aspects now, since in the event of an appeal in this matter they may be of relevance to any order which might be made.

7 The full terms of the agency's case are set out in s A of the very careful submissions tendered by Miss Kenny. Essentially the submission was as follows:

(i) That s 16(2) of the ITA Act applied to the documents in question;

(ii) That the ITA Act and in particular s 16(2) is an enactment applying specifically to information of a kind contained in the s 38 documents;

(iii) That s 16(2) specifies the nature of the information to which it applies;

(iv) That s 16 ITA Act constitutes a code of secrecy designed to preserve from non-disclosure information supplied by taxpayers to the ATO affecting the assessment and recovery of income tax;

(v) That s 16(2) delimits the nature of the information which is not to be disclosed in precise and unambiguous terms, and does not merely identify the information by reference to the capacity of the person who has received it or is in possession of it;

(vi) That the decision in Actors' Equity is distinguishable from the present case or alternatively is inconsistent with News Corp and Kavvadias; and

(vii) That the decision in Re Z should not be followed.

8 We have considered Miss Kenny's submissions and we mean no disrespect to them by not going through them all again in detail here, though they no doubt represent an extension of the arguments put in Re Z. The lack of an appeal in Re Z also supports the view that the Tribunal is entitled to follow the only previous decision of the Tribunal that is precisely in point and to leave full scale argument for presentation elsewhere if it should be desired. We are, subject to further comment below, content to repeat and adhere to the reasoning set out in Re Z, which we consider represents a proper application of the principles in News Corp and Kavvadias to the problem of the relationship between s 38 of the FOI Act and s 16 of the ITA Act. We do however wish to repeat and to emphasis some of the major considerations that led to the formation of the opinions expressed by the Tribunal in Actors' Equity and in Re Z.

9 First, the broader construction of s 38 is in truth one which would lead to a very expansive construction of s 38 and thus to a considerably diminished role for the FOI Act.

10 Second, the narrower construction of s 38 does not lead to any diminution whatsoever of the duty of officers to preserve secrecy. It does not involve any "repeal" of secrecy provisions. They remain fully in effect, as was pointed out in Actors' Equity at 81:

"If however it be found that the … legislation is not an enactment falling within s 38, then access to the documents in question must be given under the FOI Act unless some other exemption applies. But the particular legislation is not repealed. It still prevents a relevant person from taking various actions. In the case of s 102B it prevents him from, relevantly, divulging or communicating information or provising a document, except for the purposes of the B & T Act. The fact that the document is not exempt under s 38 of the FOI Act does not release that person from the operation of s 106B. In particular it may be repeated that s 106B places restrictions from disclosure on past members, which to us emphasises the different role played by this provision as compared with the role played by the FOI Act. Under the FOI Act it is ministers and agencies who give access to documents (see in particular s 18). The fact that individual persons have to authorise access and be 'concerned in the giving of access' is recognized by s 92 FOI Act, but this does not detract from the fact that it is the minister or the agency that gives access. The fact that such access would have to be given under the FOI Act, given the making of an application for access, would not save a person, otherwise bound by s 106B, who improperly produces a document under the B & T Act. That person cannot justify such action on the footing that had an FOI Act request for access been made the document would not have been an exempt document and access would have had to be given. The FOI Act does not operate in a vacuum. There is thus no necessary inconsistency between a failure to found a claim for exemption under s 38 and the continuing in force of s 106B(2) so as to prevent the taking of actions of the kind described therein being actions 'not for the purposes of this Act'. Having said this, however, it is of course necessary to point out that a failed claim to exemption under s 38 leaves open the possibility of another exemption being available to be claimed under another provision of the FOI Act, for examples s 41and s 43, the latter ground of exemption being claimed in the present case. All of this emphasises that the FOI Act and the particular legislation incorporating a 'secrecy provision' move, as we have said, along different paths."

11 Third, there is by the same token much to be said for the view that the FOI Act, although s 14 thereof encourages lawful and proper access being granted notwithstanding that an exemption may be available, is intended to be a codification of the law relating to assess to, and thus lawful release to the public of, information, whereas secrecy provisions deal individually, Act by Act, with prohibitions against unlawful release. The latter can never have been intended to have anything to do with positive authorisation of release. This point, and that made in the preceding paragraph above, are referred to in Kavvadias and are, we suggest, just as apposite to the so-called "hybrid" secrecy provision, that is a provision which refers both to the capacity in which the information was received and to its restriction to matter that relates to persons other than the officer prohibited (News Corp at 87), as it does to the clearest case of non-applicability of s 38, namely one where the provision refers only to the capacity in which the information is received.

12 Finally, we specifically say that we do not agree with the submission that s 16 as a whole stands as a code in relation to release of documents. The effect of the provisions of s 16(4) and following subsections is to permit release of information to a series of persons, instrumentalities, Boards, Commissions and so on, having governmental responsibilities. They have nothing to do with release of information to the public. They do not relate to freedom of information, but rather to the loosening in aid of government in various forms of the bonds otherwise imposed upon disclosure of information by s 16(1)and (2) so that the functions of government may be better performed.

13 There has been a good deal of debate surrounding News Corp and Kavvadias in relation to whether the construction placed by the judgments in those cases upon s 38 reflected the supposed intention of the legislation. The various Tribunal decisions mentioned above clearly reflect the fact that the Tribunal has found the intention of the legislation to be far from clear. What is however clear to the Tribunal as constituted for the purposes of this case is that the effect of the legislation as interpreted in News Corp and Kavvadias is, with great respect, entirely satisfactory. It means that while obligations of secrecy placed upon officers are wholly maintained, the FOI Act has an overriding, but even, effect in terms of what documents may be made the subject of access to those who invoke its provisions. There are at least two considerations which illustrate why this is beneficial.

14 First, as was pointed out in News Corp, the secrecy provisions to be found in legislation take many different forms. If they were, post the reality of freedom of information as a legislative requirement, to govern not only the discipline and integrity of officers but also the positive release of information to the public at large, there could be expected to be an undesirably uneven effect. The variety of the form of the various provisions must owe much to a combination of the history of changing drafting techniques and of attitudes to the responsibility of officers. They must owe little if anything to broad considerations applicable to new concepts of access to information held by government.

15 Second, different agencies hold various kinds of information. There can presumably be no agency that holds as much information relating to personal and business affairs of persons as does the agency in the present case. But that agency, like others, must hold a great deal of documentation of a more general kind, not related to information respecting the affairs of any particular person. It seems to us that it is entirely appropriate that the question of access to all kinds of information held by government be dealt with on a consistent basis by determinations of the applicability or otherwise of the exemption provisions contained in the FOI Act and especially, in the present context, of s 41. On this footing it will in our opinion be only when there is an adequately direct and explicit reference in the "secrecy provision" to information defined by reference to its inherent characteristics that s 38 will apply. Although News Corp and Kavvadias did not decide the point in relation to hybrid provisions (see 37), that is what we understand to be the effect of the principles there stated and it is what leads us to decide this case in this respect as we do. As was said in Actors' Equity at 78:

"The stipulation that the information concern the affairs of another person is uninformative save that the information is information relating to 'affairs', but not to the affairs of the officer. And the words 'acquired by him by reason of his office or appointment' etc are important. They emphasize that we are still not, in the case of this legislation, told anything about the intrinsic characteristics of the information other than that it concerns the affairs of some person, that person being a person other than the member etc who is bound by the section."

We emphasize again, with respect, what was said in Kavvadias at 51:

" Section 38 of the Act deals with information in a document. We do not doubt that what is in the document, including indications of its source, and how it came into the possession of the person who has it, is all information in the sense of s 38. It may be thought adequate for the purposes of the section that the enactment to which it refers should prohibit disclosure of information by reference to it having been received by officers in the course of their duty. Such a prohibition would say nothing directly as to the kind of information in question, which, depending upon the role of the officers, may be of a very wide, almost limitless nature.

"It seems to us that s 38 requires that there be a more direct and explicit reference to the nature of the information itself. Information is the commodity being dealt with in the Act, not the discipline or integrity of officers. Bowen CJ and Fisher J in their joint judgment in News Corp case expressed much the same thought as follows:

'We are firmly of the opinion that s 38 expressly and intentionally directs attention to the nature of the information contained in the document and not to the capacity of the person who has received the information.' "

16 Finally, we refer, and invite reference, to the reasons of the Tribunal in Re Z at (ATR) 315-332; (ALD) 675-682, and particularly to the concluding paragraph at (ATR) 321; (ALD) 681:

"In our opinion, these qualifications are not sufficiently explicit to enable it to be said that there is a direct and explicit reference in the section to the nature of the information itself. Information relating to the affairs of a person and obtained under the Act could hardly be more general. The real purpose of reference to the affairs of a person lies in the distinction it draws concerning the affairs of the officer himself. The actual words of the definition are 'respecting the affairs of any other person' (ie than the officer)."

17 We would add one final comment. In Actors' Equity, as mentioned in Lianos, the Tribunal took into account its view that St John J had in News Corp expressed the opinion that s 16 of the ITA Act was not a section to which s 38 applied. That view of the Tribunal was not essential to the decision in Actors' Equity, and may not itself have been correct. We do not here rely on it. As stated above, we believe that we are applying the principles generally stated in News Corp and Kavvadias as extended to the present situation. We do not, and could not, suggest that the point was specifically decided by the Court or by St John J.

18 It follows that the documents in question are not in our view exempt by reason of s 38 of the FOI Act, But even if we were wrong in our view as to the impact of s 38, there is in our opinion a good deal of doubt as to whether, applying what we have called the broader view of that section, many of the documents would be exempt. Many of them seem scarcely to relate to "the affairs of" any person except on a very broad basis, and some not at all. They represent drafts of proposed agreements between the CTHC and specialists employed by CTHC, said to number 45-50 during the Fund's existence. Unless the "information" represented by these documents falls within s 16 of the ITA Act the whole question of s 38 is irrelevant. It was suggested that the documents contained information concerning the affairs of the CTHC (see para A(2)(a) of the written submission); of the Trustees of the Fund (para A(2)(b)); and of the specialists ( para A(2)(c)). But unless actual individual specialists were named in the documents no claim of exemption was made by the agency under s 41 (unreasonable disclosure of information relating to the personal affairs of any person). While the wording of s 16 is of course not identical with s 41, it is hard to see how it is alleged on the one hand that a document contains information respecting the affairs of a person s 16 ITA Act) so as to attract, on the broader view, s 38 FOI Act, but that it was apparently not regarded as an apt subject of a claim under s 41 should the s 38 claim fail. These aspects were not pursued at the hearing and we do no more than refer to them. It is unnecessary to consider them further having regard to our view of s 38 .

19. Section 40 claims

We now turn to the claims of exemption based on the provisions of s 40(1)(c), (d) and (e) of the FOI Act, which, with s 40(2), are as follows:

" 40(1) Subject to sub section (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to -
(a) …

(b) …

(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or

(e) have a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations.

(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest."

20 The claims in this category relate to the deletion of the names of officers of the Australian Taxation Office. Evidence in this respect was given by Mr J J Daly who is Senior Assistant Commissioner, Operations Division, Australian Taxation Office. We are of the opinion that there would be very real dangers of misuse of the names of officers of an agency, at least and in particular the names of officers of the Australian Taxation Officer, if disclosures were made. It would be one thing for the names of officers holding delegations from the Commissioner of Taxation to be released, but at lower levels we see a distinct danger of mischievous use of officers' names, with no countervailing advantage to the public. While we do not suggest for a moment the presence of any such danger of misuse in the present case, the principle is a general one. Subject to these comments, and to our comments below relating to the public interest aspect of s 40, we are otherwise in agreement with the summation of the evidence and with the contentions advanced in Miss Kenny's submission. The submission referred to evidence given by Mr Daly that the disclosure of the names of the officers of the ATO who are named therein would, or could reasonably be expected to:

• have a substantial adverse effect on the management of personnel by the ATO [ s 40(1)(c) ];

• have a substantial adverse effect on the proper and efficient conduct of the operations of the ATO [ s 40(1)(d)]; or

• have a substantial adverse effect on the conduct by the ATO of industrial relations [ s 40(1)(e)].

Mr Daly's evidence was that each of the relevant officers were advisory officers in the Income Tax Branch of the ATO Head Office at the relevant time. One of them, named in T5, 103, 104, 131, 144-5, 146, 164, 166 and 175-6, had also done assessment work (transcript 84, 90-1). He gave evidence that the ATO had adopted the policy of not disclosing the names of its officers occupying such positions for reasons of security, industrial harmony, and staff morale (transcript 85-87), and that there had been threats of work bans by the Federated Clerks Union if names were disclosed (transcript 87). In relation to the public, he said:

"There is a possibility, in the sense that some members of the public would not particularly wish to have the names of assessors, for example, readily available. We are concerned with the privacy of taxpayers affairs. If individual assessors had their names readily available to members of the public, it is possible that taxpayers could feel that other taxpayers might be able to obtain information concerning their affairs simply by approaching one of the named officers."

(transcript 87-88).

21 It was submitted that the disclosure of the names of these officers would have a serious or significant effect on the management of personnel, the proper and efficient conduct of the ATO and the conduct of its industrial relations. Reference was made to Harris v Australian Broadcasting Commission (1983) 50 ALR 551, 564 ; Heaney v Public Service Board (1984) 6 ALD 310. See also Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 27 ALR 367, 374, 382. Reference was made to Re Z, in which the Tribunal accepted that the names of officers of the ATO were exempt under ss 40(1)(c)and (d), stating at page 6 of its reasons:

"The submission concerning the officers' names contained in Table B also succeeds because we agree that there is a public expectation that taxpayers' affairs will be the subject of the highest confidentiality. The proper and efficient conduct of the operations of the Australian Taxation Office is a subject of real public importance. There is a strong possibility that the revelation of names of individuals who have dealt even in a routine way with any taxpayers affairs would undermine public confidence in the strict confidentiality which quite properly surrounds the operations of the agency. That is a confidentiality which both the public and the officers employed by the agency have grown to respect. It would not be in the public interest in our view to breach that confidence."

22 In respect of the public interest aspect of s 40, Miss Kenny made the following submissions:

"The disclosure of the names of officers would not on balance be in the public interest, see subs 40(2). This is because:

(a) Allegations made by the Applicant concerning the trustees of the Fund and the CTHC are not relevant to whether or not the names of the officers of the ATO should be disclosed.

(b) Allegations made by the Applicant against the ATO include allegations that:

(i) 'the Commission and the Australian Taxation office have, in my view, not made any effort to ensure a proper and lawful resolution to the problems created by the deed of trust ….' (transcript 131).

(ii) the ATO has not asked, let alone demanded, that the trustees of the Fund abide by s 254 of the ITA Act (transcript 135).

(iii) its officers have thus applied sections 254, 78A(2), 177and 260 of the ITA Act (transcript 139).

Whether or not these allegations are true (which the Respondent expressly denies) the disclosure of the names of relatively junior officers is not relevant to them.

(c) According to principles of ministerial responsibility such officers would not be responsible for any dereliction of duty of the kind which is alleged by the Applicant. Indeed, the Applicant has named senior officers of the ATO whom he alleges were involved in these matters. Even if the allegations were true, the identify of their subordinates would be irrelevant.

(d) Under sections 55and 58 of the FOI Act, the sole question before the Tribunal is whether the claim advanced by the ATO for exemption under paragraph 40(1)(c), (d) or (e) is a good one. The Tribunal does not have jurisdiction to enter upon any enquiry as to the propriety of decisions made by the ATO concerning other taxpayer's affairs.

(e) The effect of the Applicant's submission is to invite the Tribunal to review the policy decisions which are the sole preserve of the Executive;

(f) Finally, disclosure of the names of these officers would not assist the Applicant to discover what the ATO has done. This appears from the substance of the documents which are not otherwise exempt."

23 Before considering this submission we consider that some comment is required as to the operation of s 40(2). Section 40 (and s 39) was replaced by s 21 of the Freedom of Information Amendment Act 1983. Sections 33A(5), 39(2)and 40(2) all have the same public interest element. They should be compared with the two other types of public interest element appearing in Pt IV of the FOI Act, viz:

(i) Section 36(1), where the requirement that disclosure of the document be contrary to the public interest is separate from and in addition to the other requirements which must be satisfied in order to make the document exempt;

(ii) Sections 33and 44 where a document is an exempt document if disclosure of the document under the Act would be contrary to the public interest for the reason that (or by reason that) the disclosure would or could have certain effects.

24 It seems to us that the three types of provision operate in different ways:

Sections 33and 44: Once the agency satisfies any of the conditions enumerated in s 33(1) or s 44(1), the document is established as an exempt document and disclosure is in effect deemed to be contrary to the public interest. In other words, further consideration of the public interest is not required to determine whether the document is exempt. The primary criteria are an expression of the content of the public interest for the purpose in hand.

Section 36: The agency must show that, quite independently of the matters enumerated in s 36(1)(a), disclosure would be contrary to the public interest. In other words, the respondent is not entitled merely to rely on the matters enumerated in s 36(1)(a) in support of a claim that disclosure would be contrary to the public interest - other grounds must be shown.

Sections 33A(5), 39(2)and 40(2): Here, once the respondent agency has satisfied the grounds enumerated in ss 33A(1), 39(1)and 40(1) respectively, that should ordinarily be enough by itself to make the document an exempt document. This is because the grounds enumerated in ss 33A(1), 39(1)and 40(1) are, of their very nature, such that satisfaction of them would make disclosure prima facie contrary to the public interest. Thus, s 39(1) speaks in terms of disclosure having "a substantial adverse effect", s 40(1) speaks in terms of disclosure "prejudicing" or having "a substantial adverse effect", and s 33A(1) speaks in terms of disclosure causing "damage". The effect of the terms of ss 33A(5), 39(2)and 40(2) is to allow this prima facie conclusion to be displaced. While not overlooking the onus imposed upon the respondent agency by s 61, the terms in which these subsections are couched will require an applicant in some circumstances to raise matters which, being relevant to the public interest, weigh in favour of disclosure. It may not be enough for the applicant simply to rely upon the general right of access given by s 11 of the Act and the object of the Act as laid out in s 3. Satisfaction by the respondent agency of the requirements set out in ss 33A(1), 39(1)and 40(1) will tend to outweigh, in terms of public interest, the considerations raised by those two sections. If the applicant does raise such matters, the agency is required either to show that the matters raised by the applicant are insufficient to outweigh the public interest inherent in ss 33A(1), 39(1)or 40(1), as the case may be, or to show that there are other public interest considerations which, when added to the statutorily inherent aspects of public interest, outweigh the public interest considerations raised by the applicant. There may of course be in particular cases circumstances such that it can be said that the public interest considerations in favour of disclosure are so well known or are so obvious that the agency should take those considerations into account when making its decision without its attention having to be specifically drawn to them.

25 It follows that some quite complex problems of onus of proof may arise in cases involving the various ways in which the concept of public interest has been embodied in the sections of the FOI Act mentioned above. In the present case, however, it is enough to say that we agree with what was said on this point in Re Z (see para 21 above); that we consider it clear that disclosure of the officers' names would have the substantial adverse effects mentioned in s 40(1)(c)and (d); and that we can detect, whether in the applicant's case or in that of the respondent, or in our own reflections on the matter, no consideration of public interest that would, within s 40(2), enable us to conclude that disclosure of the officers' names would, on balance, be in the public interest. We add that we have found it unnecessary to make any finding in relation to s 40(1)(e).

26. Section 36 claims

In our opinion documents T4, 68, T4, 72, T5, 131, T5, 146, T5, 152, T5, 168-174, T6, 1, T6, 5-8, T6, 9-10 and T6, 17-20, being the documents to which the claims under s 36 relate, are documents the disclosure of which 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 the ATO, or in the case of T5, 168-174 of the Department of Health. We shall now deal with each document in turn:

(i) T4, 68(with T4, 22 which is a copy): This is a minute from the then Commissioner of Taxation to the then Treasurer. The evidence of Mr Daly was that disclosure would be contrary to the public interest because it would have the effect of inhibiting the candid transfer of written advice to the Treasurer. It commences with a statement indicating that it is attached to a formal note about a matter given at the request of the Treasurer. It appears to relate to an enquiry addressed to the Treasurer from a Senator, is candidly expressed, and is couched in informal and direct terms. In the circumstances surrounding it, and having regard to the level at which it passed and to the form in which it was cast, disclosure of it would be contrary to the public interest.

(ii) T5, 131 was said to be a submission by a relatively junior officer in the Income Tax Branch relating to matters involving several taxpayers, expressing views by that Officer advanced for the consideration of persons senior to him in the ATO. Mr Daly gave evidence that the document should not be disclosed as it was "an expression of opinion by a relatively junior officer [in respect of a matter] on which no decision has been given, no other view-points have been canvassed, and if released by itself, it could be misleading in that people could take the view it is the attitude of the taxation office". There is another problem with this document. Names, dates and any other matter that would identify the taxpayers in question would have to be deleted to accord with s 41, but the document having been so amended would in our opinion have a considerable tendency to mislead and/or to give rise to speculation. Its disclosure would be contrary to the public interest.

(iii) T5, 146 is also an expression of views by a relatively junior officer for consideration by a more senior officer. It relates to a draft contract which was forwarded by another body to the ATO. It expresses views in relation to that draft contract. Mr Daly stated in evidence that because the document expressed views by a relatively junior officer and no decision had been given in relation to that, it might be misleading if released because it might be taken to be the express attitude of the ATO. We agree that its disclosure would be contrary to the public interest.

(iv) T5, 152 is a page of a formal minute to the Treasurer by the Commissioner of Taxation. It contains a handwritten personal note from the then Commissioner to the Treasurer which expressed a personal and candid view. Mr Daly gave evidence that the effect of disclosure would be to inhibit relations in an advisory capacity between senior officers, in this case, the Commissioner and the Minister. In our opinion this document is in the same category as T4, 68(see (i) above) and is exempt for the same reasons as there given.

(v) T5, 168-174 is a draft guideline under the Health Insurance Act. It was forwarded to the ATO so that consideration might be given to the taxation effects of the guideline. Mr Daly gave evidence that as it was clearly a draft only, the disclosure of it in its present form "could indicate that it was in fact a finished document". We doubt that it would be so mistaken, but it is either a draft or heads of proposals in relation to a very important matter having ramifications well beyond the area generally here in question. Its disclosure would in our view be likely to give rise to speculation and to have the capacity to mislead debate about its subject matter. Disclosure would in our view be contrary to the public interest. We may add that the Schedule of Documents (Exh 4) and a notation on the document itself indicated that a claim of exemption was made in respect of the document under s 45, but no evidence appears to have been led on this point. We do not, under paras 26-29 below, uphold a claim under s 45 in respect of this document.

(vi) T6, 1 is a memorandum from the Department of Prime Minister and Cabinet to the ATO, but with a handwritten note on it from a Junior Officer of the ATO to a senior officer thereof. Mr Daly gave evidence that the handwritten note expressed the view point of its author. There was said to be no decision by a more senior officer in relation to that viewpoint. If this document were disclosed "it could tend to give the view that this in fact was the decided view of the Australian Taxation Office, and, that could tend to be misleading". We agree that disclosure would be contrary to the public interest.

(vii) T6, 5-8 is a draft Taxation Ruling. The manner in which a Ruling is prepared was explained by Mr Daly. He gave evidence that "this is a draft guideline in the relatively early stage of consideration. It presumably has been prepared from the various levels of input I have mentioned, but at a relatively junior level. So far as I can ascertain it has not been considered by more senior officers, certainly not by officers with authority to give the approval to such a Ruling there, as such, a draft Ruling, if it were to be released, it would be misleading in that it could be taken to be the considered view of the taxation office". Disclosure would in our opinion be contrary to the public interest.

(viii) Paragraph 40 of the respondent's submission was as follows:

"40. Document T6, 17-20 is a memorandum from the ATO to the Department of Prime Minister and Cabinet. Mr Daly gave evidence that 'it appears to me to be an expression of a viewpoint by an officer in relation to taxation aspects and if the document were to be released it could be taken to be the official Australian Taxation Office position' transcript 97-98."

We do not agree with this submission. It is open to question whether this document falls within s 36(1)(a), but on balance we consider that it does. It constitutes a response, from a First Assistant Commissioner of the ATO, to enquiries from another agency that were claimed to be exempt under s 38, a claim which we have rejected. In T6, 19 and 20 are set out answers to a questionnaire from the other agency that is T6, 15 and 16 and which, on our view of s 38, is not exempt. These pages purport to set out an informational record, and we can detect no ground upon which their disclosure would be contrary to the public interest.

27 We expressly draw attention to Documents T6, 9-10 and 11. Documents T6, 9-10 are referred to in para 32 of Miss Kenny's submissions, but are not further referred to in detail. Document T6, 11 is not referred to specifically at all. None of these three pages was originally claimed to be exempt, but the claim emerged at the hearing. Having considered these documents for ourselves we are satisfied that they are exempt. T6, 9-10 is a draft of a reply which was to be sent from the Prime Minister to the applicant, and T6, 11 is a covering memo from the Department of Prime Minister and Cabinet attached thereto. It is hard to conceive in the circumstances how it could be argued that such a document is not exempt. The documents are a prime example of a deliberative process being conducted at the highest level, and disclosure would be contrary to the public interest.

28 Finally and generally in relation to s 36 we refer to the recent decision of the President in Re Howard and Treasurer of the Commonwealth (A84/154, 29 April 1985) and to the principles therein set out which we consider support the arguments that are set out above and the conclusion to which we have come.

29. The s 41 claims

These claims are quite specific. As previously observed, this exemption has not been claimed where the documents simply relate to unnamed specialists as a group. We accept that, as was contended, the information contained in these documents relates to the professional and taxation affairs of named individuals, of individuals who although not named would be readily identifiable by others by reason of the information contained in them, or of individuals who would recognise themselves as the subject of the information, which information relates to their participation in the Fund, their earnings, and their liability to taxation. The applicant expressly disclaimed any desire to obtain information about the taxation affairs of individuals, and we consider it enough simply to say that with one exception we uphold the claim of exemption under this head. That exception is T5, 68. We do not see how it can be said that this document involves the disclosure of the personal affairs of any person. No specialists are named, and although persons in the know could identify them as members of a class and although they could recognize themselves, what is in fact disclosed is so vague that in our opinion s 41 is not infringed.

30. Section 45 claims

Documents T4, 46-48 were conceded save for para 8 appearing on 47. While we accept what is said in para 20 of the written submission in general terms, we do not see how the whole of paragraph 8 can be said to be exempt on the basis of confidentiality. We do however accept that the last sentence was spoken in confidence and should be exempt.

31 Document T4, 49 has likewise been conceded except for the second sentence of para 3. If our reading is correct, it might be more appropriate for this sentence to be regarded as exempt under s 41, but even then there would be doubt, there being no way in which the phrase "some of the doctors" could lead to identification and thus to disclosure of personal affairs. In relation to s 45, we are unable to distinguish this sentence from much of the rest of the document that has been conceded. That concession may have been made in terms of s 14 rather than upon the basis of conceding the document's exempt character, but in any event we are satisfied that on balance this claim of exemption should be rejected.

32 Document T4, 67 is claimed to be exempt under s 45, but we do not consider that the evidence supports this claim. None is referred to in the submission. In fact this document was conceded by counsel for the respondent at the very beginning of the hearing (transcript 8) but was apparently later brought back into consideration on the footing that it was exempt.

33 The other claims of exemption under s 45 should be upheld, for the reasons set out in the submission.

34 We would only observe that in the process of reconsideration which our decision in this matter will involve, it will be necessary for deletions of names to be made from documents, for example T5, 16, that were formerly the subject of a claim of exemption in their entirety based upon s 38.

35 In the result the Tribunal will decide as follows: To set aside the decision under review and to remit the matter for reconsideration in accordance with the following directions:

(a) The Tribunal rejects the following claims of exemption:

(i) All of the claims of exemption under s 38 of the FOI Act.

(ii) The claim of exemption under s 36 of the FOI Act in so far as it concerns documents T6, 17-20.

(iii) The claim of exemption under s 41 in so far as it concerns document T5, 68.

(iv) The claims of exemption under s 45 in so far as they concern:

• para 8 of document T4, 47 other than the last sentence of that paragraph;

• para 3 of document T4, 49;

• document T4, 67.

(b) The claims of exemption are otherwise upheld.

(d) The Tribunal refers specifically to para 34 of these Reasons for Decision.

(e) The Tribunal grants liberty to apply.