text:
COLLIE v FC of T
SA Forgie DP
Judgment date: 4 April 1997
SA Forgie (Deputy President)
On 19 March, 1996, the applicant, Mr Ian David Stafford Collie, made a request to the Australian Taxation Office (``ATO'') under the Freedom of Information Act 1982 (``the FOI Act''). In very general terms, his request was for access to documents relating to the consideration by the Commissioner of Taxation, or one of his delegates, of certain aspects of Mr Collie's taxation affairs.
2. This request was properly made under section 15 of the FOI Act. Thirty days after receiving his request, the ATO had not notified Mr Collie of any decision it had made. Furthermore, it had not determined that the requirements of sections 26A , 27 or 27A made it appropriate to extend the time within which it could respond ( sub-section 15(6) ). It followed that the principal officer of the ATO, the Commissioner of Taxation (``Commissioner''), was deemed to have made a decision refusing to grant access to the documents. The date of that decision was on or about 18 March, 1996. Mr Collie was then entitled to apply to this tribunal for review of that deemed decision ( sub-section 56(1) ). This he did on 24 May, 1996 (T documents, pages 1.2-1.5).
3. The ATO made a decision in relation to the request on 12 June, 1996. Mr Lindsay Barnes, who is an officer of the ATO in its Appeals and Review Section, identified those documents which he had identified as being relevant to the request. Some information in those documents was regarded as exempt under section 38 of the FOI Act on the basis that it revealed information relating to the affairs of persons other than Mr Collie. Other information relating to the names of ATO officers was regarded as exempt under paragraphs 40(1)(c), (d) and (e). Information of both types was deleted from the documents and Mr Collie given access to the documents subject to those deletions. The documents were sent to him with a letter written by Mr Humphries, Deputy Commissioner of Taxation, on 12 June, 1996 (T documents, pages 9-10).
4. At the hearing, Mr Collie was represented by Mr Dutney Q.C. and the ATO by Mr Bickford of counsel. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (``AAT Act'') were admitted in evidence (``the T documents'') together with an affidavit of Mr Graeme Manser and a bundle of documents providing background to the request and the documents requested. The documents for which exemption was claimed were lodged with the tribunal and have been considered in preparing these reasons. Oral evidence was given by three officers of the ATO: Mr Manser, Mr Bernard Joseph Carr and Mr Frank La Scala.
5. There were two broad issues in this case. One is to determine those documents which are relevant to the request. The ATO has identified a range of documents which, by agreement, were reviewed by Senior Member Beddoe in preliminary proceedings in the tribunal. Mr Beddoe indicated those documents which he considered either are, or could be, relevant to
ATC 2060
the request. All of the documents he identified have been included among those to be considered in this case but the ATO has submitted that some are irrelevant.
6. The second issue to determine is whether any of those documents which are relevant are exempt under the provisions of the FOI Act.
7. Although the purpose for which Mr Collie seeks access to the documents is generally not relevant (see paragraphs 31-40 below), it is useful to give a little context to both the request and the documents. Therefore, for the purposes of this hearing, I have made several findings of fact which I will set out in the following paragraphs. Those findings of fact do not purport to cover the whole of the events which have occurred in relation to, and as a result of Mr Collie's financial affairs. The findings are made on the basis of the oral evidence in the case but more particularly on the evidence in Mr Manser's written material and the written material. I note that no confidentiality order has been sought under section 35 of the AAT Act in relation to that material. In addition, I note that annexed to Mr Manser's affidavit were segments of a further affidavit, which he had sworn and which had been filed in the Federal Court in proceedings between Mr Collie and the Commissioner of Taxation. Those proceedings were not conducted on a confidential basis.
8. Mr Manser is an accountant who has been engaged in the ATO in the conduct of audit and taxation investigations for the past 20 years. Based on the evidence in his affidavit to the Federal Court (Annexure ``A'' to his affidavit of 7 March, 1997), I find that he was one of the officers who investigated Mr Collie's financial affairs for the years of income ending 30 June, 1978 to 30 June, 1982 (``the relevant years'').
9. Those investigations started on 8 October, 1982 and, by 15 June, 1984, he had formed the opinion that Mr Collie had understated his income for the relevant years. Mr Manser, together with Mr Alexander who was another ATO officer engaged in the investigation, prepared an interim report. That interim report set out the opinions which they had formed. Also on 15 June, 1984, another ATO officer engaged in the investigation, Mr Hamilton, completed a report setting out his opinions regarding Mr Collie's affairs.
10. The investigations continued after 15 June, 1984 when Mr Manser said that he and another investigator, Mr Alexander, focussed on the activities of fee earning entities in Mr Collie's group of companies. By 15 March, 1985, they had prepared a report specifically related to the assessment for the year ending 30 June, 1978. I find on the basis of Mr Manser's affidavit in this tribunal, that a copy of that report was given to Mr Collie. On the basis of Mr Manser's affidavit to the Federal Court, I find that he and Mr Alexander prepared another report, also dated 15 March, 1985, in relation to Mr Collie's financial activities generally in all of the relevant years.
11. On or about 19 March, 1985, Mr Hamilton prepared and circulated within the ATO a note. On the basis of the information in that note, a decision was made as to the penalty taxes which should be imposed upon Mr Collie. That decision was dated 3 April, 1985 and was later confirmed on 9 April, 1985 by Mr Lowden, the then Acting Assistant Director.
12. Officers of the ATO interviewed Mr Collie and discovered that he had associations with another taxpayer whose affairs were also under investigation. As a result of that discovery, the ATO reduced the amount of additional income which had previously been assessed to Mr Collie. This was confirmed by Mr P.J. Meade, Executive Officer in the ATO, in a minute dated 29 April, 1985.
13. Mr McTigue, Deputy Commissioner for Victoria, confirmed that there was sufficient information to enable the assessment of Mr Collie's income for the relevant years. That course was approved in relation to the year ending 30 June, 1978 following minutes signed by Mr McTigue on 27 May, 1985 and by Mr N.W. Hunt, Assistant Deputy Commissioner, on 7 June, 1985.
14. This was followed by Mr Collie's lodging an objection in relation to that assessment. He did that on 8 August, 1985 (T documents, T8).
15. On 13 March, 1986, Mr Hamilton, Mr Alexander and Mr Manser signed a minute recommending the issue of default assessments in respect of the remaining years ending 30 June, 1979 to 30 June, 1982. Those amended assessments were issued and the total amount of income assessed as understated in respect of the relevant years was $11,913,828. Mr Collie lodged objections to each of these assessments on 27 May, 1986.
16. At some stage, Mr Collie was charged with conspiracy to defraud the Commonwealth of sales tax. The criminal trial commenced in the Supreme Court of Victoria and lasted for several weeks. He was found guilty on 29 April, 1987.
17. In September, 1987, Mr Michael Hart approached the ATO on behalf of Mr Collie. There were various discussions leading to Mr Collie's offering to settle his taxation liability with the payment of $250,000. After negotiations, a Deed of Settlement was entered between Mr Collie and the Commissioner of Taxation. That deed was signed on 10 June, 1988. The objection in relation to the year ending 30 June, 1978, was disallowed but the other objections were not dealt with and were withdrawn.
18. Following Mr Collie's failure to pay the sum of $250,000 pursuant to the deed, the Commissioner took action to recover the total amount due under the amended assessments. That recovery remains the subject of proceedings in the Supreme Court of Victoria.
The request for access
19. Mr Collie requested access to:
"1. Documents reflecting or relating to any action by the Australian Taxation Office in considering or acting on the recommendations of the ATO auditor Graeme Manser made in a report to the Applicant entitled `Report on Settlement Proposal' apparently prepared in or about late 1987 with particular reference to paragraphs 96/97 and 98 thereof.
2. Documents reflecting or relating to any action by the commissioner in the performance of his duties under form S.186 of the Income Tax Assessment Act in respect of the following objections lodged by the Applicant:
Year      Assessment   Date of     Date of
Ended         No        Issue      Objection
30/06/78    385647/1    20/06/85    08/08/85
30/06/82    389209/4    15/04/86    27/05/86.''
(T documents, page 5)
20. I am satisfied that the documents which either are, or may be, relevant to Mr Collie's request have been identified by the ATO and are found in the Commissioner's files described as:
• Recovery File Part II
• Recovery File Part IIIA
• Recovery File Part IIIB
• Audit File Part I
• Audit File Part II
21. Annexure ``B'' to Mr Manser's affidavit in these proceedings listed each of the documents in these files. The documents to which access had been granted, with certain deletions, by the time of the preparation of the T documents are included in those documents (pages 11-31).
22. Since then, the ATO has released further documents. These are identified in Annexure ``B'' to Mr Manser's affidavit with a ``✓''. All were released even though the ATO continued to regard them as not relevant to the request and that is apparent from the notes in Annexure ``B''. Some were released even though the ATO considered that a claim for exemption could have been made under either or both of sections 38 and 40 . That is also apparent from Annexure ``B'' and it is a step the ATO was quite entitled to take.
23. Annexure ``B'' to Mr Manser's affidavit also sets out a number of documents (marked with an ``×'') to which Mr Collie has indicated he no longer seeks access. I have given them no further consideration in this case.
24. The remaining documents listed in Annexure ``B'' are marked with nothing or with the initials ``WL'' standing variously for ``would like'' or ``wish list''. All of these documents are said by the ATO to be not relevant to the request. In relation to some, this is the only claim that is made. In relation to others, it is also argued that they, or parts of them, are exempt under one or
more of sections 38 , 40 and 42 . It was indicated that, even where claims for exemption are made, not all of the documents will necessarily be exempt. The tribunal, therefore, was invited to delete only those passages which were exempt.
Are all or some of the documents relevant to the request?
25. In answering this question, I must have regard to the request. As I said in
Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683, section 15 of the FOI Act
``... gives an applicant a broad indication only of how he or she may frame a request and as the documents requested may be described in broad terms also, it follows that a request cannot be interpreted with the same degree of precision as one would approach a piece of legislation or even a set of pleadings. It is neither legislation nor pleadings and has not necessarily been drafted with the same eye to detail.
... I must stand back and take an overall view of the request and the context in which it is made bearing in mind that those making requests under the Act cannot necessarily be expected to have an intimate knowledge of the subject matter of the documents they seek or of the workings of government and also bearing in mind what Mr Olsson submits was intended to be covered by the request....''
(page 692)
26. Part of the context to the request comprises a document entitled, ``Report on Settlement Proposal'' (``the Report''), the objections lodged by Mr Collie to the assessments for the financial years ending 30 June, 1978 to 1982 and section 186 of the Income Tax Assessment Act 1936 (``ITA'') which provides:
``The Commissioner shall consider the objection, and may either disallow it, or allow it either wholly or in part, and shall serve the taxpayer by post or otherwise with written notice of his decision.''
27. The terms of the objection lodged in relation to the 1978 year are included in the T documents. They are wide ranging and cover a range of issues.
28. Paragraphs 96, 97 and 98 of the Report set out the reasons why Mr Manser recommended that the settlement should be accepted and the steps the Commissioner would take if the recommendation were accepted. There was a summary of the amended results of the investigation.
29. The objections and paragraphs 96, 97 and 98 raise a wide range of issues. In performing his duties under the repealed section 186 , the Commissioner must investigate all aspects of the objections and matters relating to a taxpayer's obligations under the ITA in relation to the relevant years. Those investigations will be relevant to the objections even if the Commissioner's investigations, deliberations and records make no specific reference to those objections before he determines them.
30. Having read all of the documents and bearing in mind the general principles I have set out, I have decided that all of the documents identified in Annexure ``B'' to Mr Manser's affidavit are relevant to Mr Collie's request under the FOI Act.
What is the relevance of any motives Mr Collie may have for obtaining access to the documents?
31. Mr Bickford submitted that Mr Collie has made and pursued his request under the FOI Act in order to assist him to prepare his case in a matter in the Victorian Court of Appeal. It was not the first time, he said, that this had been done and he referred to the cases of
Murtagh v FC of T 84 ATC 4516,
Webb v DFC of T 93 ATC 4679; (1993) 26 ATR 411 and
Re Kingston Thoroughbred Horse Stud and Australian Taxation Office 86 ATC 2030.
32. The FOI Act is quite clear that:
``Subject to this Act, a person's right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency's or Minister's belief as to what are his or her reasons for seeking access.''
( sub-section 11(2) )
33. This provision means that the case of Webb is clearly distinguishable. That case was concerned with discovery and inspection in the context of an application under the Administrative Decisions (Judicial
Review) Act 1977 for the review of the Commissioner's decision to refuse to remit additional tax for late payment. Cooper J noted that:
``Discovery and inspection in the context of judicial review will not be allowed where an applicant is `fishing' for a ground upon which the decision can be attacked (
Nestle Australia Limited v. FC of T 86 ATC 4499; (1986) 11 FCR 453 and on appeal
FC of T v. Nestle Australia Ltd. 86 ATC 4760; (1986) 12 FCR 257.''
(93 ATC page 4688; ATR page 421)
This principle is not relevant in this case in view of the clear provisions of sub-section 11(2) .
34. The important qualification in sub- section 11(2) is that it is ``subject to'' the FOI Act for it is clear from the cases to which Mr Bickford referred that there are occasions on which motives of the person seeking access are relevant.
35. In Murtagh, the tribunal considered a submission that access to certain documents under the FOI Act would render discovery rules redundant if litigation were to take place at a later time between Ms Murtagh and the Commissioner. The tribunal noted that there was a reference to an administrative body, the Taxation Board of Review, which had no rules of discovery. There were, therefore, no rules of discovery to subvert. With respect to possible proceedings in the Supreme Court, the tribunal said that there were none. Had there been, it would have been appropriate to consider whether, in the public interest, the grant of access to the documents should be left to the court. The court has the power to order disclosure if, having regard to the justice of the case, it thinks it appropriate to do so.
36. In the case of Mr Collie's application, he is involved in ongoing court proceedings but the application of the principles expressed in the Murtagh case do not lead to the conclusion that those proceedings are automatically relevant. It is clear from Murtagh that regard must be had to the precise terms of each of the exemption provisions to determine the relevance of the practical effects which disclosure may have on other proceedings.
37. This is illustrated by the Murtagh case. Sub-section 36(1) was one of the exemption provisions under consideration in that case. It specifies that two requirements must be met before a document may be exempt under its provisions. The first is that it would disclose information of a certain type and the second that its disclosure ``would be contrary to the public interest'' ( paragraph 36(1)(b) ). It is in relation to the public interest aspect that the effect on a court's rules of discovery may become relevant. It was in that context that the tribunal first considered the possible effect upon proceedings in the Tax Board of Review.
38. Neither of the exemptions claimed in this case under sections 38 or 42 requires that disclosure of a document be contrary to the public interest in order to establish the exemption. The effect of sub-section 40(2) is that the exemption claimed under sub- section 40(1) does not apply if disclosure would be in the public interest. This is a different test from that established by paragraph 36(1)(b) and, in this case, will only become relevant if one of the grounds set out in sub-section 40(1)(a) is made out.
39. The tribunal in Murtagh also considered the effect of disclosure under the FOI Act in the context of the exemption in section 37 of that legislation. That exempts from disclosure certain documents affecting the enforcement of the law and the protection of public safety. As a matter of fact, proceedings in another place may be relevant in determining whether the exemption has been proved. They were found to be so relevant in the case of Re Kingston Thoroughbred Horse Stud, to which Mr Bickford referred. The tribunal was considering claims for exemption not only under sub-section 37(1) but also under sub-section 40(1)(d) .
40. There is, however, no overriding provision that proceedings between the parties in another court or tribunal automatically limits the right of access under the FOI Act. Regard must be had to the particular exemptions claimed to be relevant.
The documents for which exemption is claimed and the exemptions claimed
Documents to which secrecy provisions of sub-section 16(2) of the ITA Act apply - section 38
41. The ATO submitted that certain documents were exempt under section 38 in so far as they contain material, the disclosure of which is prohibited by sub- section 16(2) of the Income Tax Assessment Act 1936 (``ITA Act''). Sub-section 38(1) is relevant in this case and provides:
``(1) Subject to subsection (1A), a document is an exempt document if:
(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and
(b) either:
(i) that provision is specified in Schedule 3; or
(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.''
Sub-section 16(2) is a provision which is specified in Schedule 3 .
42. I should consider what is meant by sub-section 16(2) . The information which an officer may not divulge except in the performance of his or her duty as an officer must meet the description in that sub- section. In particular, it must be ``information respecting the affairs of another person'' that has been acquired by the officer as mentioned in the definition of ``officer'' ( sub-section 16(2) ). Reference to the definition, shows that the information respecting the affairs of any other person must have been ``disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax'' ( sub-section 16(1) ).
43. What are the ``affairs'' of a person? The word ``affairs'' was considered in
Johns v Connor and Others (1992) 107 ALR 465 in the context of a notice issued under section 19 of the Australian Securities Commission Act 1989. That notice required Mr Johns to appear for examination in relation to an investigation into the affairs of a certain company. One of the grounds upon which the notice was attacked as to its validity was that the notice failed to comply with a statutory requirement to state the general nature of the matter that the Australian Securities Commission was investigating.
44. In finding that the notice was drafted too broadly to meet the statutory requirement, Lockhart J said:
```Affairs' is a word of very wide import. In its ordinary meaning `affairs' in relation to a corporation includes the activities, business or concerns of the corporation.''
45. A similarly wide meaning would seem to be appropriate whether the affairs of a corporation or the affairs of an individual are under consideration. The only qualification is that the information about the affairs has been obtained under ITA or of any previous law of the Commonwealth relating to income tax.
46. I also note that, in order to come within the terms of sub-section 16(2) , the information must be ``respecting the affairs'' of a person. Bearing in mind the ordinary meanings of the word ``respecting'', this means that the information must be in ``Relation, connection, reference, [or] regard'' to the person's affairs (New Shorter Oxford Dictionary, 1993), or in similar terms, is information regarding or concerning his affairs (Macquarie Dictionary, 2nd edition, 1991).
47. In order for information to come within the description of information ``respecting any other person'' must that other person be able to be identified? I note that the tribunal in Re Mann considered a document in which the names of individuals were not ascertainable. It said:
``It was suggested that the documents contained information concerning the affairs of 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 par A(2)(a) of the written submission); of the trustees of the 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.''
48. I have some reservation in following this approach. That reservation stems from paragraph 32(a) of the FOI Act. That paragraph provides that a provision under Part IV delineating an exemption:
``shall not be construed as limited in its scope or operation in any way by any other provision of this Part by virtue of which documents are exempt documents.''
49. In light of this paragraph I have concluded that I should not interpret section 38 , and so sub-section 16(2) , in the light of the provisions of section 41 . I have had regard then to the provisions of sub-section 16(2) on their own. They do not require that the person be able to be identified from the information before an officer is under an obligation not to reveal that information. It is enough that it can be identified as information respecting the affairs of another person.
50. What is meant by the requirement that the information in respect of which the secrecy provision operates is not only information respecting the affairs of another person but that type of information that has been ``... disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax'' ( sub-section 16(1) )? The ITA is the only legislation which is relevant in this case. Under it, obligations to disclose information by way of returns or further or fuller returns are found in sections 162 and 163 of the ITA Act. Under section 263 , the Commissioner or any officer authorised by him, has broad powers to obtain access to documentary material. Section 264 gives the Commissioner wide powers to require persons to give him information and evidence. He has power to seek information and documents outside Australia and his powers in that regard are found in section 264 .
51. Whether information comes within the description of information described in sub- section 16(2) is a matter of fact. The burden of proving that it does meet the description falls upon the ATO ( section 61 ). In some instances, it can do that by reference to the nature of the information itself. It may clearly be information of a sort that could only have been acquired by an officer of the ATO because it was disclosed or obtained under the provisions of the ITA or of a previous Commonwealth law relating to income tax. Where the nature of the information itself does lead to that conclusion, evidence needs to be found in other sources.
52. If disclosure of the information is prohibited by sub-section 16(2) , it is exempt under section 38 unless it falls within the qualification specified in sub-section 38(2) . That sub-section provides that:
``Where a person requests access to a document, this section does not apply in relation to the document so far as it contains personal information about the person.''
53. What is meant by ``personal information'' is set out in sub-section 4(1 ) which provides that:
```personal information' means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.''
54. It follows that, if section 38 of the FOI Act is not to apply, the information must be ``information or an opinion... about'' the person requesting the document. The word ``about'' is defined in the New
Shorter Oxford Dictionary, in so far as it is relevant as meaning:
``6 In connection with; touching; concerning; on the subject of; in relation to''
It is defined in similar terms in the Macquarie Dictionary.
55. It was assumed during the hearing, and is clear from documentation such as the Deed of Settlement (part of Exhibit B) that Mr Collie's affairs and the affairs of others (including corporate entities) have, at the very least, touched upon each other on occasion. That they are intermingled, at least to some extent, does not mean that the affairs of other persons are regarded upon each occasion as the affairs of Mr Collie. I have considered each document in order to characterise to whose affairs any information may relate. If they relate to Mr Collie, I have considered whether that is information or an opinion about him that is personal information about him and so excluded from the exemption by sub- section 38(2) in any event. Where it relates to the affairs of a person other than Mr Collie, I have considered whether it was disclosed or obtained under the ITA. If so, it comes within the secrecy provisions of sub- section 16(2) of the ITA and so is exempt under section 38 of the FOI Act.
56. Where there is information relating to the affairs of persons (other than Mr Collie) who are individuals and who can be identified or whose identity can be readily ascertained from that information, I have considered whether that information is information or opinion, whether true or not, about them. If it is such information, it is personal information within the meaning of the definition of that term in sub-section 4(1) (see paragraph 53 above). I have then considered whether disclosure under the FOI Act would be an unreasonable disclosure of that personal information so that it is exempt within the meaning of sub-section 41 .
57. If I am satisfied that it is exempt under sub-section 41 , I have found it to be exempt. If I am not satisfied that it is, by its very nature and the context of the files in which it appears, exempt, I have considered whether the procedures in sub-section 27A should be followed. Those procedures must be followed if
``(b) it appears to:
(i) the officer or Minister dealing with the request; or
(ii) a person (the `reviewer' ) reviewing under section 54 a decision refusing the request;
that the person referred to in paragraph (a), or, if that person has died, the legal personal representative of that person, might reasonably wish to contend that the document, so far as it contains that information, is an exempt document under section 41.''
( paragraph 27(1AA)(b) ).
58. In light of the specific reference to the reviewer as well as to the officer and Minister, I have queried whether the tribunal should follow the procedures in section 27A . Issues of the practicality of following the procedures in section 27A in external review proceedings have also caused me some concern. Following the procedures would necessarily lead to an adjournment. That need not be a major difficulty in the resolution of the proceedings for the decisions in relation to other documents can be reviewed, decisions made on that review and the parties able to take whatever steps are appropriate in relation to those decisions on review.
59. Of greater concern to me are the review rights given by section 59A where an agency or Minister decides that the document is not an exempt document under section 41 . If the tribunal is bound to follow the procedures in section 27A , the effect will be that it must also follow sub-section 27A(2) . Among those procedures are the requirement that, where it is decided that the document, or edited copy of it, is not exempt, access cannot be given until the time has passed for the person to lodge an application under section 59A . If such an application were lodged, the practical result would be that the tribunal would be asked to review a decision which it had just made. That does not seem to be an appropriate or practical result.
60. I am conscious that this aspect was not the subject of submissions at the hearing. That would normally be a matter on which I would ask for further submissions. There are, however, time constraints on both the parties and the tribunal which mean that the decision must be made quickly. I have decided to express my view, tentative though it may be,
that section 27A is not applicable in review proceedings in the tribunal. I have decided upon a practical approach that, to some extent, takes into account the rationale of the procedure in section 27A . That is to adjourn further consideration to enable the ATO to approach the persons for their views upon whether the document, or part of it, should be found to be exempt. That approach should only be made if Mr Collie indicates that he wishes to pursue his request in relation to those passages in the documents concerned.
61. The documents in respect of which a claim for exemption has been made are quite numerous and need to be considered individually. Mr Manser's evidence in support of their being exempt is that they are internal documents relating to the affairs of third parties. This was not expanded upon in oral evidence. The documents which I am required to consider have not been marked by the ATO to indicate those parts which it considers are within section 38 . The task would have been considerably easier had it done so. In the following passages, I have used the word ``person'' in the broad sense used in the Acts Interpretation Act 1901 to include a body politic, body corporate or individual ( sub-section 22(1) ).
Recovery File II
Folio 7 - a flow chart.
(i) The flow chart relates to certain aspects of the affairs of both Mr Collie and persons other than Mr Collie. The Commissioner has wide powers to obtain information or to require its disclosure under the ITA Act. The type of information in the document is of a type that leads to the conclusion that it was obtained under those laws. It comes within sub-section 16(2) and all of the chart other than that part of it referred to in the following paragraph is exempt under section 38 .
(ii) The chart shows a reference at the top to two pieces of information that are about Mr Collie. That information includes the name of the two persons connected with that information. They are personal information about him (see paragraph x above) and so are not exempt under sub-section 38(2) .
Folio 76 - a note of a telephone conversation regarding a meeting with the Australian Government Solicitor's Office ("AGS") on 21 July, 1986.
(i) A reference is made to a person other than Mr Collie or an ATO officer. That reference is not a reference to that person's affairs but to Mr Collie's intentions in relation to its affairs. It is, therefore, a reference to Mr Collie's activities and intentions and so his affairs rather than the other person's affairs. As it is a reference to Mr Collie's activities and intentions it is personal information about him and so excluded from the exemption in section 38 .
(ii) Even if I am incorrect in this view, there is no evidence to establish that the information in relation to the affairs of those other persons was disclosed or obtained under the ITA.
(iii) The remaining material in the note relates to administrative arrangements and does not relate to the affairs of any person within the meaning of sub-section 16(2) .
Folios 77-81 - a record of a meeting between officers of the Director of Public Prosecutions ("DPP"), AGS and ATO on 6 August, 1986.
(i) These notes contain, interspersed with other information, information regarding statements made by Mr Collie and information about him, his views and opinions as to his likely reactions. This is personal information about Mr Collie and so is not exempt under section 38 for it comes within sub-section 38(2) .
(ii) The notes also contain material which indicates what could generally be described as the discussions of the officers at the time in relation to ensuring that Mr Collie ultimately met his taxation obligations, whatever those obligations might be. There is nothing in that type of information which establishes, or even suggests, that it is information disclosed or obtained under taxation laws. It is, therefore, not within the purview of sub-section 16(2) .
(iii) The sentence beginning ``The asset'' on folio 78 refers to the affairs of persons other than Mr Collie but this is information which may or may not have been acquired in the ways described in sub-section 16(2) with reference to sub-section 16(1) . The onus is upon the ATO and I am not satisfied that it has met it. The information is not exempt.
Folio 98 - a record of an internal telephone conversation on 28 November, 1986.
(i) For the reasons given in paragraph (ii) in relation to folios 77-81, I do not consider that the first or third paragraphs contain information that could be regarded as exempt under section 38 .
(ii) The first two sentences of the second paragraph contain references to persons other than Mr Collie and those references are to information about their affairs disclosed or obtained under the ITA Act. Some are identifiable and some are not but, for the reasons I have given at paragraphs 46-49 above, that is of no consequence. The information, I am satisfied, would have been disclosed or obtained under the ITA and is exempt under section 38 .
(iii) The third sentence of the second paragraph relates to personal information about Mr Collie and is not exempt as it is within the exception in section 38(2) . It also contains other information which I am not satisfied was disclosed or obtained under the ITA and so does not come within sub- section 16(2) .
Folio 104 - Analysis 78.
(i) This document relates to the affairs of persons other than Mr Collie. It is information obtained under the ITA Act, comes within sub-section 16(2) and so is exempt under section 38 .
Folios 115-117 - Record of meeting DPP, AGS and ATO on 29 January, 1987.
(i) These notes contain information regarding statements made by Mr Collie and information about him, his views and opinions as to his likely reactions. It is personal information about Mr Collie and not exempt under section 38 .
(ii) The notes also contain material which indicates what could generally be described as discussions of the officers at the meeting in relation to ensuring that Mr Collie ultimately met his taxation obligations. There is nothing in the information that suggests it comes within sub-section 16(2) and so within the exemption specified in section 38 .
(iii) The sentence beginning ``Compliance'' in the first paragraph on folio 116 and all but the last seven words of the second paragraph in that folio refer to persons other than Mr Collie. The information in those passages does not, however, relate to information about their affairs obtained under the ITA. They are not exempt under section 38 but might arguably be exempt under section 41 .
(iv) The information in the passages is personal information about persons other than Mr Collie. Having regard to the matters I have raised in relation to sections 27A and 41 of the FOI Act, I have concluded that those persons might reasonably wish to argue that disclosure under the FOI Act would be an unreasonable disclosure of that information. In view of that, I would have decided that I should not make a decision to grant access to it until the ATO has taken steps to ask the persons for their views as to whether they would wish to contend that the document is exempt. I would have decided that the ATO should only take those steps if Mr Collie indicated that he continued to seek access to the document. Further consideration of these passages would have been adjourned.
(v) I say ``would have'' for I have decided that the whole folio is exempt under section 42 and adjournment in relation to the section 41 aspect would serve no useful purpose.
Folios 122-127 - Record of meeting DPP, AGS and ATO on 17 February, 1987.
(i) These notes record discussion relating to ATO's actions in relation to Mr Collie's affairs and speculation as to Mr Collie's plans. That information is not exempt under section 38 for there is nothing, either in the nature of the information or in any evidence, that establishes that it was disclosed or obtained under the ITA. In so far as it relates to speculation about Mr Collie, it is personal information about him. In neither case is the information exempt.
(ii) Point 3 on folio 122 is not exempt because it expresses an opinion about what Mr Collie may do. It is personal information within the ambit of sub-section 38(2) .
(iii) The last paragraph on folio 122 reflects information about persons other than Mr Collie. The nature of the information satisfies me that it is within the ambit of sub-section 16(2) and is exempt.
(iv) The paragraph beginning ``Re'' on folio 123 and continuing for the first half of folio 124 comprises information about Mr Collie and persons other than Mr Collie. Some of that information is exempt under section 38 as it comprises information disclosed or obtained under the ITA. Some is not. It is not, however, possible to separate, in accordance with section 22 of the FOI Act, the two types of information so that the document would not be exempt. The two types of information in this passage are too intertwined to enable that to be done. That passage must, therefore, be regarded as exempt.
(v) The sentence beginning ``Collie'' in the second paragraph on folio 124 and ending ``)'' refers to information relating to both Mr Collie and another person. It is not information which I am persuaded comes within sub-section 16(2) by reference to its nature. It may or may not and the ATO has not satisfied the onus it bears in establishing that it does and is exempt.
(vi) The information relating to the other person is personal information. Given the nature of the information, I am not satisfied that its disclosure would be an unreasonable disclosure within the meaning of sub- section 41(1) of the FOI Act.
(vii) The first two lines on folio 125 refers to speculation by the ATO. It is not exempt. The third line beginning ``he'' to ``Collie'' at the end of the fourth line and the first four lines of the second paragraph relate to the affairs of persons other than Mr Collie and could have only been obtained from information disclosed or obtained under taxation laws. It is exempt under section 38 .
Folio 162 - File note re telephone messages 1 May, 1987, 4 May, 1987 and 5 May, 1987.
(i) There is nothing in the note of 1 May, 1987 that satisfies me that it is information obtained or disclosed under the ITA. Even if it were, it is information about Mr Collie's affairs and so is information about him. It is personal information about Mr Collie and comes within the exception in sub-section 38(2) and is not exempt.
(ii) The note of 4 May, 1987 is a mixture of personal information about Mr Collie and procedural steps proposed by the ATO. In either case, it is not information which has been obtained or disclosed under the ITA and so does not come within the purview of sub-section 16(2) .
(iii) The note of 5 May, 1987 also refers to procedural matters and is again not exempt. It also refers to four persons other than Mr Collie but the mere mention of those persons does not, in the context, reveal any information about their affairs. It is not exempt.
Folio 164 - Agenda of meeting DPP, AGS and ATO on 7 May, 1987.
(i) The agenda lists the topics to be discussed but does not contain any information disclosed or obtained under the ITA. It is not prohibited from disclosure by sub-section 16(2) and so is not exempt under section 38 .
Folios 168-171 - Record of meeting DPP, AGS and ATO on 7 May, 1987.
(i) Except for the last three lines on folio 168, the information on that folio does not reveal information disclosed or obtained under the ITA and is not exempt.
(ii) The last three lines on folio 168 and the first eleven lines on folio 169 to and including the word ``companies'' is information that I am satisfied was obtained or disclosed under the ITA. There is a brief reference to personal information about Mr Collie but that is so intertwined with the other information that release of it would release that which is exempt. The whole of that passage is exempt under section 38 .
(iii) The other information on folio 169 does not come within sub-section 16(2) and is not exempt under section 38 . The last two lines contain personal information relating to a person other than Mr Collie. Disclosure of that information would be an unreasonable disclosure of that person's personal information. It is exempt under section 41 of the FOI Act.
(iv) Folio 170 does not contain information disclosed or obtained under the ITA Act except in the seventeenth line commencing ``$''. That is information which does not come within the exception in sub-section 38(2) and is exempt.
(v) The first seven lines of folio 171 record speculations by the ATO and do not include
information disclosed or obtained under the FOI Act.
(vi) All but the seventh of the next eight lines appear to speculate about certain matters. They could include information which comes within sub-section 16(2) or they may not. Further evidence would be required to establish that one way or the other for the passage does not speak for itself. It is not exempt. The information in the seventh line does speak for itself and that is information within sub-section 16(2) and is exempt.
(vii) The remaining information either does not come within sub-section 16(2) or is personal information relating to Mr Collie. It is not exempt.
Folios 172-185 and 186 - Flow charts re financing of properties owned by entities associated with Mr Collie and Schedule thereto.
(i) Folios 172-180, 183-185 and 186 contain information disclosed or obtained under the ITA Act and are exempt in their entirety.
(ii) Folio 181 is the same but the two circles on the right hand edge of the folio are personal information relating to Mr Collie and come within the exception in sub- section 38(2) .
(iii) Folio 182 is also the same but the right hand circle and the circle to which it is connected are personal information relating to Mr Collie. That information is not exempt but the remainder of the folio is exempt.
Folios 201-202 - File notes re assets for AGS and DPP - 28 August, 1987
(i) The first substantive paragraph on folio 202 is information obtained under sub- section 16(2) but the information relates to Mr Collie and so is not exempt.
(iii) The second paragraph contains details of the ATO's administrative arrangements and hopes. It is not exempt.
(iv) The third paragraph and the first half of folio 201 (most of which is very difficult to read) relates to information about Mr Collie. It is personal information about him and is not exempt. The last paragraph on folio 201 is procedural and not exempt.
RECOVERY FILE PART IIIA
Folios 225-229 - Notes of meeting DPP and ATO on 28 August, 1987.
(i) This is a meeting to explore steps that could be taken by the ATO. The notes begin with folio 229 and I will begin with that.
(ii) The paragraph in (i) on folio 229 reveals information received under ITA from a person other than Mr Collie. It is exempt under sub-section 16(2) .
(iii) The final paragraph on that folio reveals information of the same type and is exempt. It also includes information concerning Mr Collie but it would not be possible to delete the exempt material from that which is not exempt so that the remaining paragraph is not exempt. The whole paragraph is, therefore, exempt.
(iv) The first three sentences of the first paragraph of folio 228 are exempt for they reveal information obtained under the ITA. It is exempt. The final sentence relates to Mr Collie's personal information and is not exempt.
(v) The second paragraph on folio 228, which comprises one sentence, concerns two persons. It reveals information obtained under the ITA but, even with the reference to two persons, it is still properly characterised as information about Mr Collie. That is so even though it may also be characterised as information about another person. It follows that the paragraph contains personal information about Mr Collie and comes within the exception in sub-section 38(2) and is not exempt on that basis.
(vi) Would the disclosure of the other person's personal information be an unreasonable disclosure under the FOI Act? It is open that the person might reasonably wish to contend that its disclosure under the FOI Act would be unreasonable. If it were not for the fact that the folio is wholly exempt under section 42 , I would have found that the procedures I have described in paragraph (iv) in relation to folio 116 above should be followed in relation to the person's name (which appears in the last line of the paragraph). As the whole folio is exempt under section 42 , I will not adjourn further consideration of this aspect.
(vii) The second sentence, beginning with the word ``The'', of the third paragraph on folio 228 reveals information obtained under the ITA respecting the affairs of a person. It
is not about Mr Collie and is exempt under section 38 .
(viii) The fourth paragraph contains information about a person other than Mr Collie. I am satisfied that it is personal information. Given the nature of the information, I am satisfied that its disclosure under the FOI Act would be an unreasonable disclosure of that person's personal information. It is exempt under section 4 1 of the FOI Act.
(ix) The final paragraph on folio 228 is not exempt. It contains information that may be described as Mr Collie's personal information.
(x) The first dot point on folio 227 can be described as personal information about Mr Collie. It is not exempt.
(xi) The second dot point is, apart from the last sentence, speculative. The last sentence beginning ``They'' reveals information obtained under the ITA and is exempt. The third dot point also reveals the same type of information and is also exempt. The remainder of the paragraph is speculative and may also be described as personal information about Mr Collie. It is not exempt.
(xii) Folio 226 records discussions as to future and present action and personal information about Mr Collie. It is not exempt.
(xiii) All but the last two dot points of folio 225 are of the same mixture as folio 226. The last two dot points concern information about persons other than Mr Collie. The disclosure of that information and their disclosure would be an unreasonable disclosure of that personal information within the meaning of section 41 of the FOI Act.
Folios 232-234 - Record of meeting AGS, DPP and ATO on 11 September, 1987.
(i) Folios 234 and 233 contain personal information about Mr Collie and are not exempt.
(ii) The first two sentences of the first paragraph of folio 232 comprise the same type of information for it is opinion, and so personal information, about Mr Collie. They are not exempt. The third sentence of that paragraph may disclose information obtained under the ITA or it may be speculative. The ATO has not discharged its burden to satisfy me that it is the former rather than the latter and so that is not exempt under section 38 . The fourth sentence (beginning ``None'') of the first paragraph is information obtained or disclosed under the ITA and is exempt.
(iii) The remainder of the document is discursive and does not refer to any information obtained or disclosed under the ITA. It is not exempt.
Folios 239-242 - Notes of meeting DPP, AGS and ATO on 15 October, 1987.
(i) Folio 242 is not exempt. All information may be regarded as either personal information relating to Mr Collie or planning action by ATO. It is not exempt.
(ii) Folios 239-241 are notes of a meeting of AGS, DPP and, presumably, ATO on 17 September, 1987. The information on folio 241 relates to Mr Collie's affairs and is personal information. It is not exempt.
(iii) The information in folio 240 contains some information that is personal information of Mr Collie and some speculative or planning steps of the ATO. It is not exempt in so far as this information is concerned. Lines 4-9 of folio 240 contain information about persons other than Mr Collie and I am satisfied from the nature of the information that it would have been disclosed or obtained under the ITA. It is exempt.
(iv) There is information in lines 14-5 [sic] which may or may not have been obtained or disclosed under the ITA. Without some evidence that it did, I find that it is more likely that it did not and that it is more in the nature of discussion. It is not exempt.
(v) The remainder of folios 239-240 are not exempt under section 38 as there is no information which, on its face, appears to have been obtained or disclosed under the ITA.
Folio 295 - Internal memorandum re losses from associated companies.
(i) I am satisfied that this is information which has been disclosed or obtained under ITA. It is exempt under section 38 .
Folios 296-298 - Record of meeting AGS, DPP and ATO re deed dated 18 March, 1988.
(i) The notes at these folios record the officers' deliberations of the deed. There is nothing on the face of the folios that they record any information that was disclosed or obtained under the ITA. It is not exempt.
Folios 353-358 - Records of telephone conversations between Mr Collie and ATO officers re associated company and telephone calls amongst ATO officers between 12 October, 1988 and 24 October, 1988.
(i) The records of the telephone conversations between Mr Collie and ATO officers are not exempt under section 38 . Even if they do concern third persons and may or may not contain information which the ATO may have obtained under the ITA, the notes record information that is personal information about Mr Collie. That is information as to what he believes to be the situation about his own taxation responsibilities in relation to others. Those notes are not exempt under section 38 .
(ii) The last five lines of folio 353 and the passage on folio 354 to the first ``12/10/88'' relate to information that has been disclosed or obtained under the ITA in relation to persons other than Mr Collie. It is exempt under section 38 .
(iii) The note of the second telephone conversation on 12 October, 1988 records procedural matters and is not exempt.
(iv) The figure shown in the middle of folio 355 is exempt as it reveals information obtained or disclosed under the ITA. It is exempt. The remainder of the note is a consideration of options in the ATO.
(v) Folio 356 does not reveal any information of the type described in sub- section 16(2) and is not exempt under section 38 .
(vi) Folio 357 is missing from the copy documents I was given. In response to my request for it, Mr McMorrow, the solicitor for the ATO advised that it [had] not been in the files since they had come into his possession late in 1986. I adjourn further consideration of this folio should Mr Collie wish to pursue it.
(vii) Folio 358 is a note of a telephone conversation with Mr Collie and, for the reasons given in paragraph (i) above, cannot be regarded as exempt under section 38 .
Folio 360 - Memorandum re telephone conversation between CCA and ATO.
(i) The first paragraph including the list is information about the affairs of Mr Collie. It comes within sub-section 38(2) and is not exempt.
(ii) The three lines following the list disclose information which I accept was obtained or disclosed under the ITA. It is exempt under section 38 .
(iii) The last six lines of folio 360 are almost illegible but I can read enough to be satisfied that they disclose information disclosed or obtained under the ITA. Those lines are exempt.
Folio 362 - Record of telephone conversation between ATO and Mr Collie on 16 December, 1988 and record of telephone conversation between two officers of ATO on 20 January, 1988.
(i) For the reasons given in paragraph (i) in relation to folios 353-358, a record of a telephone conversation with Mr Collie is not exempt under section 38 .
(ii) The second telephone call does reveal a limited amount of information that comes within the description in sub-section 16(2) and that starts from ``the'' in line two of the first sentence of the note to the end of that sentence. It is exempt under section 38 .
(iii) An un-numbered page seems to be the back of folio 362. The matters it records do not specifically relate to anything and its link to other matters in the file is not clear. Without more, I am not satisfied that it is exempt under section 38 .
Folio 363 - Record dated 1 February, 1980 of telephone conversation regarding amendments to associated company's returns.
(i) This folio sets out the action proposed by an ATO officer but does not of itself disclose any information obtained or disclosed under the ITA. It is not exempt.
RECOVERY FILE PART IIIB
Folio 375 - Copy covering office memorandum re a letter written on 20 March, 1989 to the ATO and a final assessment notice sent to the ATO by Mr Collie.
(i) This folio deals with information dealing with Mr Collie's affairs (i.e. personal
information) and with steps proposed by the ATO for handling its affairs involving Mr Collie. It does not reveal information disclosed or obtained under the ITA Act. It is not exempt under the FOI Act.
Folios 400-401 - Record of telephone conversations between ATO and AGS on 14 February, 1990 and between Debt Management and Auditor on 19 February, 1990.
(i) The first paragraph of folio 400 records a factual matter which was not disclosed or obtained under the ITA. It is not exempt.
(ii) The first sentence of the second paragraph may, or may not, have been obtained or disclosed under the ITA. Given the nature of the way in which the information was received, I find that it was obtained under the ITA and so is exempt. The second sentence of that paragraph contains personal information about Mr Collie and is not exempt.
(iii) The final paragraph on folio 400 does not disclose information obtained or disclosed under the ITA but speculation, whether right or wrong, as to certain events. It is not exempt under section 38 .
(iv) Folio 401 is a mixture of personal information about Mr Collie, consideration of action by the ATO and administrative steps. None reveals information which I am satisfied was disclosed or obtained under ITA about the affairs of any person. It is not exempt.
Folios 407-408 - File note re another taxpayer 4 October, 1989 and sale of property 29 August, 1989.
(i) Folio 407 comprises information relating to the affairs of a person other than Mr Collie. I am satisfied that it has been obtained or disclosed under the ITA and may not be disclosed under sub-section 16(2) of the ITA. It is, therefore, exempt under section 38 of the FOI Act.
(ii) Folio 408 contains information that relates to the affairs of persons other than Mr Collie. I am not satisfied that the information was obtained under the ITA and so is not exempt.
Folio 421 - Copy of office memorandum re another taxpayer dated 24 June, 1988.
(i) This folio concerns the affairs of another taxpayer. I have decided from the nature of the information that it was obtained or disclosed under the ITA. It is exempt under section 38 of the FOI Act.
Folios 451-452 - File note re related companies.
(i) Folios 451 and 452 list a number of persons other than Mr Collie. Items 1, 3, 4, 9 and 10 include references to information about the affairs of those persons which I find has been obtained or disclosed under the ITA. That information, which begins in each entry with the word ``as'', comes within sub-section 16(2) and so is exempt under section 38 . Apart from that information there is no information revealed on those folios as to the affairs of those persons. In this case, there is nothing in revealing the names of the persons that reveals anything of the information which may have been disclosed to, or obtained by, the ATO under the ITA about their affairs. The names are not exempt.
AUDIT FILE PART I
Record of internal ATO meeting re settlements 10 July, 1987.
(i) This comprises two folios and does not reveal information obtained or disclosed under the ITA. It reports on certain steps taken by certain persons and is a planning document for the ATO.
(ii) They are not exempt under section 38 . Apart from Mr Collie's name in the second paragraph of the first folio, all names referred to in the second and third paragraphs are exempt under section 41 . Their disclosure under the FOI Act would be an unreasonable disclosure of personal information about those persons for aspects of their dealings with the ATO would be revealed.
Notes re meeting between Mr Collie and ATO dated 8 September, 1987.
(i) These notes comprise three folios. The first folio records information obtained from Mr Collie. Even if it was obtained or disclosed under the ITA, it is personal information about Mr Collie as it is information about his views and beliefs of the situation of others. It comes within the exception in sub-section 38(2) and is not exempt.
(ii) The second and third folios comprise thirteen numbered paragraphs. Each
paragraph is a brief summary of the subject discussed or a timetable for future action. No information is released about the affairs of any person other than Mr Collie. The folios are not exempt under section 38 .
File note re income calculations 78-82.
(i) This folio comprises information about the affairs of Mr Collie. It comes within the exception described in sub-section 38(2) and is not exempt.
Notes re meeting AGS, DPP and ATO on 18 September, 1987.
(i) This folio does not disclose any information about the affairs of any person obtained or disclosed under the ITA. It is not exempt under section 38 .
Record of telephone conversations re legal action on 28 September, 1987.
(i) On the basis of the information in this document, I am satisfied that it is information disclosed or obtained under the ITA Act. I am also satisfied that, apart from one sentence, the information is in respect of the affairs of persons other than Mr Collie. It comes within sub-section 16(2) of the ITA and is exempt under section 38 .
(ii)The sentence beginning ``I'' at the beginning of the third paragraph is not exempt as it is in respect of Mr Collie's affairs.
Copy of file note re another taxpayer on 29 November, 1987 (sic) (should read ``29 September, 1987'').
(i) When considering the documents, I was unable to locate a document of this description among those I had been given. A request for it was made to Mr McMorrow. If I understand the situation correctly, the document should have been described as being dated 29 September, 1987.
(ii) The document comprises two folios and both have some information which relates to the affairs of a person other than Mr Collie and which would have been obtained or disclosed under the ITA. That information is exempt under section 38 .
(iii) The information which is exempt on the folio with the number ``56'' at the top is the amount shown in line 7, the first two words in the substantive paragraph starting at line 8, the figure and next three words or groupings in line 10.
(iv) The information which is exempt on the folio with the number ``44'' at the top is the amount shown in line 6.
(v) The second folio relates to the affairs of an individual and contains information which may be regarded as his or her personal information. Having regard to the matters I have raised in relation to sections 27A and 41 of the FOI Act, I have concluded that those persons might reasonably wish to argue that disclosure under the FOI Act would be an unreasonable disclosure of that information. The procedures I described in paragraph (iv) in relation to folio 116 should be followed and I adjourn further consideration to enable that to occur should Mr Collie wish to pursue the document.
Letter from Australian Valuation Office to ATO dated 23 February, 1988 and report dated 25 February, 1988.
(i) I have reproduced the description as given in Annexure ``B'' but it actually comprises six letters and six reports with dates varying between 18 February, 1988 and 25 February, 1988. Five relate to property owned by persons other than Mr Collie. On the basis of the information itself, I am not satisfied that the information, while properly obtained by the ATO, can be said to have been obtained under the ITA. As the ATO carries the burden of proving that the grounds for the exemption have been established, I find that the documents are not exempt under the FOI Act.
(ii) The sixth set, dated 25 February, 1988, relate to Mr Collie's property. Information about a person's property is information about that person. It is, therefore, personal information and so comes within the exception in sub-section 38(2) .
AUDIT FILE PART II
Copy of Second Schedule Part II to deed.
(i) The schedule comprises three folios. It is the schedule to the deed signed by, among others, Mr Collie on 10 June, 1988 in relation to a settlement of their taxation liabilities. The deed, a copy of which was available in evidence (Exhibit B), set out the liability of Mr Collie, and others, for recoupment tax in respect of certain entities. As such, it relates to Mr Collie's obligations and so is information about him. It is
personal information about him. It is not exempt because of the operation of sub- section 38(2) .
Copy letter from AGS to ATO on 12 February, 1988.
(i) Without further evidence, I am not satisfied that any part of the two folios comprising this letter contains information disclosed or obtained under the ITA. They are not exempt under section 38 of the FOI Act.
File note re another taxpayer and Deed dated 14 June, 1988.
(i) All of the information in this folio is information which I am satisfied relates to affairs respecting persons other than Mr Collie and that the information has been obtained or disclosed under the ITA. It comes within the provisions of sub-section 16(2) and so is exempt under section 38 .
Copy of file notes and losses forward.
(i) These notes comprise six folios. All of the passages on them contain information of the type which is subject to the secrecy provisions of sub-section 16(2) of the ITA and is exempt under section 38 . The folios are exempt in their entirety.
Office memorandum re dual assessments on 11 July, 1988.
(i) This is a document comprising one typed page and two handwritten pages. It contains information which relates to the affairs of persons other than Mr Collie and, in a peripheral sense, to the affairs of Mr Collie. The two cannot be separated and, in the end result, I have concluded that disclosure would reveal information whose revelation is prohibited by sub-section 16(2) . I have decided, therefore, that the whole document is exempt under section 38 .
Copy facsimile from Mr Collie to ATO re another taxpayer on 6, 7, 8 and 9 March, 1990.
(i) Only one of the folios, dated 6 March, 1989, matching this description was included in the documents with which I was provided. I have assumed that each is similar. The facsimile sent by Mr Collie set out his understanding of the affairs of another taxpayer. In setting out his views, the folio is setting out information about Mr Collie i.e. what his views are on a particular subject. It is, therefore, information which may be described under the FOI Act as personal information about him. It comes within the exception under sub-section 38(2) of the FOI Act and is not exempt.
Copy of facsimile from the ATO in Melbourne to the ATO in Brisbane on 24 June, 1988 and an office minute dated 24 June, 1988 (sic) re another taxpayer.
(i) I am satisfied that disclosure of the information on these folios would reveal information obtained or disclosed under the ITA about the affairs of a person other than Mr Collie. Disclosure of the information is prohibited by sub-section 16(2) . It is exempt under section 38 .
Copy of documents attached to the 1981 year return of another taxpayer.
(i) There are approximately 30 folios in this group of documents. All folios reveal information obtained or disclosed under the ITA about the affairs of a person. Subject to the matters I have dealt with in paragraphs (ii) and (iii) below, the information is prohibited from disclosure under sub- section 16(2) under the ITA. It is exempt under section 38 of the FOI Act.
(ii) The correspondence dated 3 August, 1979 and 30 August, 1979 are letters written by Mr Collie. They are information about him in the sense that they give information about his views or understandings of certain matters. In that sense, it is personal information about Mr Collie. Therefore, the two pieces of correspondence are not exempt under section 38 as they come within the exception of sub-section 38(2) .
(iii) The bundle contains two documents which are pro forma authorities to sign cheques and on which Mr Collie is given such authority. On balance, I have concluded that these also reveal information about Mr Collie in the sense that he is a person who has that authority in relation to a designated person or persons. They are within the exception in sub-section 38(2) and are not exempt. Those authorities also contain the name of another signatory. I have concluded that disclosure of the name of that other signatory under the FOI Act would be an unreasonable disclosure of that person's personal information. That person's name is exempt from disclosure under section 41 .
Documents concerning the operations of agencies - paragraphs 40(1)(c)-(e)
62. The ATO submitted that certain documents were exempt under paragraphs 40(1)(c)-(e) in so far as they contain the names of their officers. Those paragraphs provide that:
``Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency of industrial relations.''
63. In arguing that various documents are exempt under section 40 , Mr Bickford referred to the cases of
Re Mr ``Z'' and Australian Tax Office (1984) 6 ALD 673,
Re Mann and Australian Taxation Office (1985) 3 AAR 260 and
Re Lander 85 ATC 4674. It is apparent from those cases, he argued, that not a great deal of evidence is required to establish the exemption. Indeed, it is almost a matter of which the tribunal could take judicial notice.
64. In Re Mr "Z", for example, the tribunal said:
``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.''
65. No reference was made to the evidence led in this case. The tribunal in considering Re Mann did refer to evidence which had been given by Mr Daly, the Senior Assistant Commissioner, Operations Division in the ATO, in support of a claim for exemption under section 40 . Mr Daly had said that each of the officers who had been named were advisory officers in the Income Tax Branch of the ATO. One of them had also done assessment work. Mr Daly continued 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 (tr 85-87), and that there had been threats of work bans by the Federated Clerks Union if names were disclosed (tr 87). In relation to the public, he said (at 87-88):
`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.'''
(pages 270-271)
66. The tribunal, which quoted with approval the passage from Re Z, concluded that:
``We are of the opinion that there would be very real dangers in the misuse of the names of officers of an agency, at least and particular the names of officers of the Australian Taxation Office, if disclosure 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.''
The reasons in Re Z were adopted in their entirety in Re Lander where reference was also made to Re Mann.
67. While I do not for a moment denigrate the conclusions reached in each of these cases by, as Mr Bickford said, respected members of the tribunal, I must bear in mind that an exemption is not established by precedent as it were but by evidence. That follows from the clear onus that section 61 imposes upon the ATO. In a case such as this, the effect of that section is that the ATO:
``... to which... the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.''
68. In deciding whether an onus has been discharged in court proceedings, regard may be had to facts which need not be proved i.e. facts of which judicial notice may be taken. The principle to be used in determining what these facts are was described by Isaacs J in
Holland v Jones (1917) 23 CLR 149 when he said:
``The only guiding principle - apart from Statute - as to judicial notice which emerges from the various recorded cases, appears to be that wherever a fact is so generally known that every ordinary person may be presumed to be aware of it, the Court `notices' it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt.''
69. I have grave reservations in accepting that the concept of judicial notice has any application in a case such as this. The fact of which I am asked to take judicial notice is the very issue which the FOI Act requires the ATO to prove if it is to be successful in its claim that the names of the officers are exempt. Had the disclosure of the names of officers been a matter of which judicial notice could be taken, it could have been expected that documents including references to such names would have been treated as a class of documents which are exempt in the same way as Cabinet and Executive documents are regarded as exempt by virtue of their falling within a particular description ( sections 34 and 35 ).
70. Even if my reservations are without foundation, I do not consider that this is a case in which the consequences of disclosure upon the ATO's management of personnel and its operations or upon the conduct of its industrial relations can be said to be a matter that is generally known. The ordinary person cannot reasonably be presumed to be aware of such consequences.
71. In considering the consequences of release issues of the sort considered in Re Z and Re Mann would be relevant. Over the years, however, changes occur in the issues which are regarded as relevant or at least the emphasis which is to be given to them. So, for example, any consideration of the consequences of disclosure of the names of public servants involved in decision-making or actions affecting the public, or an individual member of the public, would need to take into account prevailing notions of accountability to the public. Those notions may encompass views that public servants themselves may regard disclosure as appropriate. If that is the case, the adverse consequences described in paragraphs 40(1)(c)-(e) might not occur.
72. Considerations such as I have described lead me to conclude that I cannot take judicial notice of the effect of release of the names of ATO officers upon its operations, management and industrial relations. That brings me back to the particular provisions of paragraphs 40(1)(c)-(e) , the onus in section 61 and the evidence led in this case.
73. The evidence was given by Mr Manser. After specifying in his affidavit the documents in relation to which the claim was made, Mr Manser continued:
``... giving access to those documents would either have a substantial adverse effect (a) on the management or assessment of personnel by the Commonwealth or an Agency, (b) on the proper and efficient conduct of the operation of an Agency and/or (c) on the conduct by or on behalf of the Commonwealth or an Agency of industrial relations and would not be in the public interest. I verily believe that unions whose members include taxation officers have advised that industrial action could result from the identifications of staff in situations such as appertain herein.''
(paragraph 13)
74. This evidence was explored during cross-examination. Mr Manser had not prepared paragraph 13 and had not decided upon the exemptions to be claimed in respect of the documents. He said that the disclosure of the names of ATO officers could seriously undermine the performance of their duties and confidential discussions within the office. When asked whether he would say that all documents should be exempted because of confidential discussions, Mr Manser replied that disclosure would have an adverse effect on the Commonwealth's business. Some of the documents may contain opinions as well as facts. Mr Manser was unable to explain why the Commonwealth would be affected if it were known that its officers had opinions.
75. With regard to the effect of disclosure on the ATO's industrial relations, Mr Manser said that information about possible union action had been circulated throughout the office. He was not certain if any document had been circulated or if the matter had only been discussed. He could not recall whether a member of the union had discussed it with him.
76. Mr Manser acknowledged that revealing his name to Mr Collie had not led to any adverse consequences within the ATO. The same applied to other officers such as Mr La Scala and Mr Alexander. Whether disclosure led to adverse consequences might depend on the individuals concerned and whether they knew their names had been disclosed.
77. Has Mr Manser's evidence established that any of the particular types of consequences envisaged by paragraphs 40(1)(c)-(e) would, or could reasonably be expected to, occur? Each of the consequences must be such that disclosure under the FOI Act would ``have a substantial adverse effect'' of the type described in each of those paragraphs. I considered the meaning of those words in Re Booker and Department of Social Security (unreported, Decision No. 6189, 13 September, 1990) and will set out the relevant passage:
``... The phrase `substantial adverse effect' and in particular the word `substantial', has (sic) been considered in a number of cases. The word `substantial', is not one of clear meaning. There are at least two alternative senses in which it may be used, on the one hand it may mean large or weighty or of considerable amount, on the other, it may mean real or of substance as opposed to nominal or illusory. In
Palser v. Grinling (1984) 1 All ER 1 Viscount Simon held that in the context in which he had to consider it the word `substantial' meant `considerable, solid or big'.
Tillmanns Butcheries Pty Ltd v. Australasian Meat Employees Union and Ors (1979) 27 ALR 367 Bowen CJ and Deane J considered the words `substantial loss or damage'. Bowen CJ at page 374 said:
`The word ``substantial'' would certainly seem to require loss or damage that is more than trivial or minimal. According to one meaning of the word the loss or damage would have to be considerable (see
Palser v. Grinling [1984] AC 291 at 316-7). However, the word is quantitatively imprecise; it cannot be said that it requires any specific level of loss or damage. No doubt in the context in which it appears the word imports a notion of relatively, that is to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business.'
Deane J at page 382 said:
`The word ``substantial'' is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision. In the phrase ``substantial loss or damage'', it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size.... As at present advised, I incline to the view that the phrase, substantial loss or damage, in s45D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal. It is, however, unnecessary that I form or express any concluded view in that
regard, since the ultimate conclusion which I have reached is the same regardless of which of the alternative meanings to which reference has been made is given to the word ``substantial'' in s 45D(1).'
34. In Harris (supra) Beaumont J considered which reports or (sic) (of) an independent review of the Legal Department of the respondent was exempt under the FOI Act. Beaumont J said that it is possible that the reports could embarrass those charged with supervising or reviewing the operations of the Legal Department but went on to say on page 564:
`However, I am not persuaded that any such effect, even if adverse, could fairly be described as ``substantial'' in its impact. In my view, the insertion of a requirement that the adverse effect be ``substantial'' is an indication of the degree of gravity that must exist before this exemption can be made out.'
Beaumont J was considering section 40 as it existed before it was replaced in 1983. The particular words which he considered, however, have not been varied and are still relevant.
35. Muirhead J has also considered the expression `substantial adverse effect' as it appears in section 40 in the case
Marco Ascic v. Australian Federal Police (1986) 11 ALN N184 who there observed:
`The reference to ``gravity'' in that dictum (and I say so with respect) causes me some difficulty. ``Substantial'' is a word of common usage which can stand on its own feet and the work ascribed to it in statutory interpretation will depend on the statute and of course the issues under consideration. Deane J gave detailed consideration to the word in
Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees' Union (1979) 27 ALR 376 at 382. Whilst the court there was considering an application under s. 45D of the Trade Practices Act which refers to ``substantial loss or damage'' his Honour's words that ``substantial loss or damage... includes loss or damage that is in the circumstances, real or of substance and not insubstantial or nominal'' appear to me to be appropriate to most circumstances and closer to the plain meaning of the word and its dictionary interpretations.'
(page N185)
Finally, this Tribunal, presided over by Beaumont J, has considered paragraph 40(1)(c) in
Re Williams and Registrar of the Federal Court of Australia (1985) 8 ALD 219 (Mr McMahon, then Senior Member and Dr Renouf, Member). Beaumont J said at page 222 that the difficulties in establishing that `substantial adverse effects' will occur are formidable.''
(paragraphs 33-35)
78. In my view, Mr Manser's evidence is not sufficient to overcome the formidable difficulties to which Beaumont J referred. No blame for this lies with Mr Manser. It was not established that he was an officer who was in a position to know of the consequences of disclosure under the FOI Act. His knowledge of the effect upon the conduct of the ATO's industrial relations was limited to unspecified knowledge that had circulated in the ATO about possible union action. It went no further than that. So, for example, the evidence did not address in even the most superficial way the likely form that action would take. It did not address whether any likely action could indeed be reasonably expected to, if not would, have a substantial adverse effect, as opposed to some effect, of the types described in paragraphs 40(1)(c)-(e) .
79. While Mr Manser spoke of the revelation of the officer's opinions as well as their names, he was not able to explain how their disclosure would have an adverse effect on the management or assessment of personnel, the proper and efficient operations of the ATO or on the ATO's conduct of its industrial relations let alone a substantial adverse effect. It is possible to speculate that disclosure of opinions which have not been considered at appropriate levels and which may be preliminary might have some effect. It would, however, be a speculation which would need to be explored and this was not done in the evidence.
80. Mr Bickford has relied upon the authorities but even they draw a possible distinction between the disclosure of the names of those officers who are delegates of the Commissioner and those who are not. Whether this is still a relevant consideration is not known
to me. Certainly, Mr Manser's evidence did not address this aspect.
81. Although I am not swayed one way or the other, I note that the names of various ATO officers have been revealed in both the T documents and in the affidavit material filed in the Supreme Court of Victoria. I have made reference to these in paragraphs 7-18 above. There is no reason apparent from the face of the documents to explain why the names of officers may be disclosed in one context but will cause detriment of the type described in section 40 if disclosed in another.
82. It follows that I am unable to find that any of the documents are exempt by reason of paragraphs 40(1)(c)-(e) of the FOI Act.
Documents subject to legal professional privilege - section 42
83. Sub-section 42(1) is relevant and provides:
``A document is an exempt document if it is of such a nature that it would be privileged in legal proceedings on the ground of legal professional privilege.''
84. Schedule B lists a number of folios which are claimed to be, at least in part, exempt on the basis of sub-section 42(1) . The evidence given in support of the claim is given in Mr Manser's affidavit when he said:
``These folios relate solely to legal advice obtained by the Respondent by (sic) the Commonwealth Director of Public Prosecutions and/or the Australian Government Solicitor. In the most part that advice was obtained in connection with legal proceedings which had at the material times been commenced or, in some cases, were pending or anticipated.''
85. In his oral evidence, Mr Manser agreed with Mr Dutney that the majority of the folios for which he claimed exemption are related to recovery and not audit. He said that he was very familiar with the audit documents of which he has had custody. He did not claim familiarity with the recovery documents but said that the subject matter of those documents was the same as that of the audit documents. Mr Manser said that he had looked at some of the recovery documents on the morning of the hearing. He had probably last looked at them last year as part of the court action. In claiming exemption for the documents, he was relying on advice he had been given. He believed them to be exempt.
86. In his oral evidence, Mr Manser agreed that Mr Collie had been convicted of a sales tax offence in 1987. He was not certain whether he had been prosecuted for any other offences but could not remember any others. After early 1987, the DPP had an overriding brief to look at Mr Collie's affairs. It looked at the settlement proposal put forward by Mr Collie. Mr Manser could not recall which section of the DPP was involved in the matter. Mr Manser agreed with Mr Dutney that the AGS advised on the legal aspects of the settlement including drawing the deed.
87. As to the period after 1988, Mr Manser could not recall what legal proceedings were pending. There was possibly recovery action on the general amended assessment. He did not know whether the recovery of the $16.5m was not commenced until 1990 as that was the responsibility of the Recovery Section of the ATO. When it was suggested to Mr Manser that he did not know what legal proceedings were pending at the time, he said words to the effect that he would have at the time.
88. Mr Carr, who has been with the ATO for 16 years and was an officer in the Recovery Section at the relevant time, had last seen the documents ten years ago. He could recall there being meetings with the DPP but could not recall the reason for that involvement. Mr Collie's file is but one of the files on which he has worked. He could recall attending meetings with the DPP in his role as a recovery officer. His role was to get the matter settled and to achieve the best result for the ATO. He reported to his supervisor, Mr Frank La Scala, who would have made any decision.
89. Rather than attempting any general statement about legal professional privilege, I will deal with principles as they become relevant in considering each document for which the exemption is claimed. I will not make any general findings of fact on the basis of the affidavit and oral evidence led in the case for the character and contents of the documents themselves may shed some light upon the context in, and purposes for, which they were brought into existence.
90. As a general proposition, legal professional privilege may be claimed in legal proceedings in relation to advice sought from and given by a lawyer employed by the government. It may be claimed provided the professional relationship between the lawyer
and the government agency seeking advice has the necessary quality of independence (
Waterford v Commonwealth (1987) 71 ALR 673). I am satisfied that the professional relationship between the lawyers in the AGS and in the DPP and the officers of the ATO may have that necessary quality of independence notwithstanding that they are all employees of the Commonwealth.
91. Where the DPP is recorded as having been in attendance at a meeting, Mr Dutney has submitted that its officers were not in attendance as legal advisers but for their own parallel purposes. Whether or not that is so will depend on the findings in relation to each document. I have, however, had regard to the judgement of Heerey J in
Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd 93 ATC 4672; (1993) 116 ALR 535. It was argued in that case that the ATO, (and the AFP) were not clients of the DPP for the purposes of a claim for legal professional privilege because the DPP was conducting investigations for his own purposes.
92. Heerey J found in that case that the ATO (and the AFP) were assisting the DPP after it (the ATO) had approached his office for advice about the applicant's possible criminal liability. He found that the approach:
``... raised the real possibility that at some time in the future the DPP might institute proceedings against the applicants for indictable offences or for the commitment of them for trial for such offences. It was incidental or conducive to the performance of such a function for the DPP to give the advice sought by the AFP and ATO since they were engaged in an investigation of a kind which was necessary, or at least likely to be of assistance, for any such future proceedings.
It is a legitimate function of the ATO and the AFP to investigate possible breaches of the criminal laws of the Commonwealth in relation to tax matters....
I am satisfied that up until the issue of the warrant (and thereafter) the ATO and the AFP were in substance in the position of clients of the DPP. They were seeking the DPP's legal advice as to matters arising in the investigation of possible criminal offences. Acceptance of the applicants' argument to the contrary would mean that the AFP and ATO would in this investigative phase be confined to such legal advice as they had in-house, or could be obtained from the private legal profession, because Parliament had intended to prohibit them from seeking advice from the very body which Parliament itself has established as the independent and expert authority for prosecution of breaches of the criminal laws of the Commonwealth....''
93. What of advice sought of, and provided by, the DPP in relation to matters which can more accurately be described as civil rather than criminal? The functions of the DPP are set out in section 6 of the Director of Public Prosecutions Act 1983 (``DPP Act''). I note particularly paragraph 6(1)(fa) which provides that his functions are:
``in respect of relevant matters:
(i) to take civil remedies on behalf of and in the name of the Commonwealth and authorities of the Commonwealth; or
(ii) to co-ordinate or supervise the taking of civil remedies by or on behalf of the Commonwealth and authorities of the Commonwealth;
for, or in connection with, recovery, or ensuring the payment, of amounts of tax.''
94. That function would appear to be fairly wide in respect of the recovery of taxation but, in carrying it out, the DPP may well not be giving legal advice. He is either taking action himself or performing an administrative function in supervising the activities of others.
95. What if the officers of the DPP should, in carrying out the administrative and supervisory functions, purport to give legal advice to the ATO? Would the officers of the DPP still be regarded as giving legal advice to the ATO? In the case of
Global Funds Management (NSW) Ltd v Rooney (1994) 36 NSWLR 122, Young J had to determine for whom solicitors were acting and so determine questions of legal professional privilege. As part of his consideration, he reviewed authorities concerned with instances in which persona had made communications in the belief that they were being made to their solicitors. In the course of his judgement, Young J said:
``Although there is some doubt as to the ambit of the rule, it seems clear from the authorities that the submission of the first
and third defendants that the privilege only attaches if the relationship of solicitor/client actually exists or at least was contemplated is not a sufficient summary of the law. At least in a situation where the client thought that the lawyer was his or her solicitor and that thought was contributed to by the action of the solicitor or by the person who is seeking to tender the statement, the privilege will exist. In my view the authorities go further to support the proposition that if the client bona fide believes on reasonable grounds that the other is his or her solicitor, then the privilege exists up to the time when that belief is exploded.''
96. I will return to these aspects later in these reasons (particularly folios 164 and 168-171).
97. I will now consider each of the folios in relation to which a claim for exemption under section 42 is made:
RECOVERY FILE PART II
Folios 9-10 - ATO record of meeting between ATO, AGS and DPP on 7 January, 1986.
(i) It is apparent from the document, which comprises two folios, that the charges had been laid and the criminal proceedings against Mr Collie were proceeding in the Victorian courts. At that time, investigations with regard to the objections were proceeding. The document records information given by the ATO to the AGS and the DPP in relation to its investigations generally. It also records the advice given by AGS in relation to the investigations and considerations regarding Mr Collie's tax liabilities as well as the advice given by the DPP in relation to criminal proceedings then on foot. The information recorded is of a nature that satisfies me that the communications noted in the document were made in confidence. The document is a document which would be privileged from production in legal proceedings on the ground of legal professional privilege. It is, therefore, exempt under section 42 of the FOI Act.
Folios 11-14 - DPP record of meeting on 7 January, 1986.
(i) These folios comprise a document similar in description to that in folios 9-10. For the reasons I gave in relation to that document, it is exempt under section 42 .
Folio 37 - Note of meeting among DPP, AGS and ATO on 19 March, 1986.
(i) This is a note of certain information that was imparted at the meeting. From the information itself, I am unable to discern the basis upon which the information was imparted. I am unable to discern whether it was imparted so that legal advice might be given to, or obtained or sought by the ATO. From the face of the document, I find that the information it records is not legal advice. It is not a document in respect of which the ATO has established, as it must under section 61 , that a claim for legal professional privilege could be established and it is not exempt under section 42 .
Folio 76 - Telephone conversation re meeting in July/August with AGS 21 July, 1986.
(i) This document records a conversation between two officers of the ATO. It records some factual information and some purely administrative arrangements. It records nothing in the way of communications between the ATO and its legal adviser. It was not a document prepared for the sole purpose of preparing for, or for use in, existing or contemplated legal proceedings. It is not a document in relation to which legal professional privilege could be claimed. It is not exempt under section 42 .
Folios 77-81 - Record of meeting among DPP, AGS and ATO on 6 August, 1986.
(i) This document is similar in nature and the information it bears as that in folios 9-10. For the same reasons, it is exempt under section 42 .
Folios 90-91 - Record of meeting among DPP, AGS and ATO on 9 October, 1986.
Folios 96-97 - Record of meeting among DPP, AGS and ATO on 23 October, 1986.
Folios 99-101 - Record of meeting DPP, AGS and ATO on 2 December, 1986.
Folios 115-117 - Record of meeting among DPP, AGS and ATO on 29 January, 1987.
Folios 122-127 - Record of meeting among DPP, AGS and ATO on 17 February, 1987.
Folio 151 - Record of telephone conversation between ATO and AGS on 15 April, 1987.
(i) I am satisfied that this document records a confidential conversation between an officer of the ATO and its legal adviser from the AGS in order for the ATO to obtain, and the legal adviser to give, legal advice. It is also a communication made between them with reference to litigation that was in the contemplation of the ATO. The document is exempt within the meaning of section 42 .
Folio 152 - Record of telephone conversation between DPP and ATO on 15 April, 1987.
(i) I am satisfied that this document records a confidential conversation between an officer of the ATO and its legal adviser from the DPP in order for the ATO to obtain, and the legal adviser to give, legal advice. It is exempt within the meaning of section 42 .
Folio 153 - File notes re telephone calls between AGS and ATO on 16 April, 1987 and between DPP and ATO on 16 April, 1987.
(i) This document is similar in nature and the information it bears as that in folios 151 and 152. For the same reasons, it is exempt under section 42 .
Folio 154 - Copy of letter from ATO to AGS dated 16 April, 1987.
(i) This document is a confidential communication between the ATO and its legal advisers in relation to litigation that was being conducted by, or in the contemplation of, the ATO. It is exempt pursuant to section 42 .
Folios 160-161 - Record of meeting among DPP, AGS and ATO on 21 April, 1987.
(i) Folio 160, the first half of folio 161 written in the same hand and the last two lines of folio 161 are exempt under section 42 . They record a confidential communication between the ATO and its legal advisers in relation to litigation that was being conducted by, or in the contemplation of, the ATO.
(ii) The words on folio 161 appearing after the date ``21.4.87'' when it first appears and the date ``27/4/87'' is not exempt under section 42 . It is a record of a conversation between officers of the ATO and does not attract legal professional privilege.
Folio 163 - Record of telephone conversation re meeting 5 June, 1987.
(i) I have reproduced the heading given in Schedule B but can find no reference to a meeting of 6 June, 1987. I suspect the meeting is at another time.
(ii) Whenever the meeting, this note records conversations by various ATO officers with other ATO officers. These are conversations by the client with itself, as it were. They do not come within the scope of the communications protected by legal professional privilege.
Folios 164 and 168-171 - Agenda of meeting among DPP, AGS and ATO on 7 May, 1987 and record of meeting.
(i) The agenda lists the topics to be discussed. It does not in itself disclose any confidential communications passing between the ATO and its legal adviser(s) to obtain legal advice or with reference to litigation that might have been taking place or in the ATO's contemplation.
(ii) The notes, however, should be read in light of the meeting for which it was prepared. Those notes contain information of a type similar to that in folio 151. I am satisfied that the information was imparted, at least in part, for the purpose of legal advice from the AGS. If it were not for a matter I am about to mention, I would find, that, for the reason folio 151 is exempt, so too are folios 168-171.
(iii) By the time of the meeting, however, Mr Collie had been convicted on 29 April, 1987. There were no longer any criminal proceedings against him and no evidence before me that any were contemplated. That leads me to consider whether the presence of the DPP in some way takes away the confidentiality of the communications between the AGS and the ATO, whether the DPP continued to have some role as the ATO's adviser or whether the DPP simply had an interest in the proceedings.
(iv) I find that at this stage, the ATO was still in the midst of its investigations. There is, however, no evidence that it was still seeking advice from its legal advisers as to criminal proceedings. It was certainly seeking advice as to civil issues.
(v) The role of the DPP is far less clear. I note the functions which the DPP has in relation to the co-ordination of, and the taking of, civil remedies for the recovery of tax (see paragraph 94 above). This is a role which it has apart from any legal advice it may give. In view of the contents of the documents and the oral evidence of Mr Manser, I have reached the conclusion that the DPP attended the meeting in order to fulfil this function and not as a legal adviser.
(vi) Did the ATO, whether rightly or wrongly, regard the DPP as one of its legal advisers at the time? I have had regard to the statement in Mr Manser's affidavit that the ATO was receiving legal advice from both the DPP and the AGS (see paragraph 84 above). I have also had regard to his oral evidence. He was unable to describe even broadly the type of legal advice that the DPP would have given. In view of this and in view of the contents of the document, I have concluded that the ATO did not regard the DPP as its legal adviser. The DPP was present at the meeting in order to fulfil its statutory function. It is, therefore, inappropriate to apply the principles in Global Funds Management (NSW) Ltd as they have no relevance in this context.
(vii) Does the presence of the DPP at the meetings mean that the communication between the ATO and its legal adviser, the AGS, were not confidential? If they were not confidential, they were not privileged. It seems to me that the presence of the DPP in its role of co-ordinating the efforts of the ATO to recover tax owed by the Commonwealth does not detract from the confidence of the communications. The doctrine applies equally to a communication between the legal adviser and the client and a communication between the legal adviser and the client's agent (
Wheeler v Le Marchant (1881) 17 Ch D 675) and a subsequent report to the client by the agent (
Grant v Downs (1976) 11 ALR 577).
(viii) While it cannot be said that the DPP is the agent of the ATO or vice versa, their relationship is somewhat analogous to that of a principal and agent. The ATO must report its recovery efforts to the co- ordinator. To say that its report of what transpired between it and its legal adviser is not subject to the same protection as a report of an agent to its principal (the client) would make the administration of taxation recovery procedures unworkable. The presence of the DPP at the meeting simply removes the step of reporting and leads to more efficient administration.
(ix) In view of these considerations, I have decided that the presence of the DPP at the meetings does not detract from the confidentiality of the communications between the ATO and the AGS. In view of my conclusions in paragraph (ii) above, I have decided that the notes of the meeting would be subject to legal professional privilege.
(x) As folio 164, the agenda, was prepared for the meeting and would indicate the topics discussed, I am satisfied that it also is
protected from disclosure by legal professional privilege.
(xi) For these reasons, folios 164 and 168-171 are exempt under section 42 .
Folio 187 - Record of telephone conversations between ATO and the Auditor re valuations and the DPP re assessment on 11 May, 1987.
(i) There are notes of two telephone conversations on this folio. The first was a conversation between two officers of the ATO. It is not subject to legal professional privilege.
(ii) The second is a note which records a conversation between AGS and ATO and a note of further actions as a result of that conversation. The record of the conversation between AGS and ATO would be privileged within the meaning of section 42 . The record of the conversation is so intertwined with the information of the other actions that one cannot be released without revealing the other. For that reason, I have decided that deletions cannot be made under section 22 of the FOI Act.
Folio 190-192 - Copy of letter from AGS to DPP dated May, 1987.
(i) Although this is a letter from the ATO to the DPP, it is effectively a record of a meeting among the AGS, DPP and ATO. Notes of that meeting would have been the subject of legal professional privilege in legal proceedings. In view of the conclusions I have made regarding the role of the DPP at this stage, I do not consider that the privilege is waived by the ATO's confirming with the DPP the legal advice it had received from the AGS. These folios are exempt under section 42 .
Folio 198 - File note re meeting, 27 August, 1987.
(i) This would seem to record purely administrative material. I am not satisfied that the ATO has met the onus of proof it bears under section 61 .
Folios 201-202 - File notes re assets for AGS and DPP on 27 August, 1987.
(i) The notes of the meeting record information given to the AGS and DPP. Investigations were continuing and steps were being taken with regard to a civil proceeding. I find that the communication was a confidential communication between the ATO and the AGS in order to obtain legal advice and to the DPP in its role as the co-ordinator. For the reasons given in relation to folios 168-171, these folios are exempt under section 42 .
Folios 203-204 - Original letter from AGS to ATO dated 24 August, 1987.
(i) This is a letter in which the AGS is giving legal advice to the ATO. It is a document in respect of which legal professional privilege could be claimed in legal proceedings and is exempt under section 42 .
Folios 225-229 - Notes of meeting among AGS, DPP and ATO on 28 August, 1987.
(i) The notes contain information of a type similar to that in folios 168-171. For the reasons given in relation to folios 168-171, they are exempt under section 42 .
Folios 230-231 - Letter from DPP to ATO dated 17 September, 1987.
(i) This is a letter containing advice from the DPP. It is advice regarding certain matters the ATO was considering at the time.
(ii) The advice is of a sort which is consistent with the DPP's carrying out his functions set out in paragraph 6(1)(fa) of the DPP Act. That it is advice given in the performance of one of his functions does not make it legal advice.
(iii) For the reasons I gave in relation to folios 168-171, I am not satisfied that the DPP was in the position of a legal adviser to the ATO.
(iv) It is, therefore, not subject to a claim of legal professional privilege and would not be exempt pursuant to section 42 .
Folios 232-234 - Record of meeting among AGS, DPP and ATO on 11 September, 1987.
Folios 239-242 - Notes of meeting among DPP, AGS and ATO on 15 October, 1987.
Folio 243 - Notes of meeting among AGS, DPP and ATO on 3 October, 1987.
Folio 245 - Notes of meeting among AGS, DPP and ATO on 22 December, 1987.
Folios 296-298 - Record of meeting AGS, DPP and ATO re deed on 18 March, 1988.
Folios 311-312 - Record of meeting among AGS, ATO and DPP on 8 April, 1988.
Folio 331 - Record of meeting among ATO, AGS and DPP re deed.
Audit File Part I - Minutes of meeting among AGS, DPP and ATO on 17 September, 1987.
Audit File Part I - Notes re meeting AGS, DPP and ATO on 18 September, 1987.
Audit File Part I - Record of meeting among DPP, AGS and ATO on 15 October, 1987.
Audit File Part II - Copy minutes of meeting among AGS, DPP and ATO on 18 March, 1988.
Audit File Part II - Minutes of meeting among AGS, ATO and DPP on 8 April, 1988.
Audit File Part II - Minutes of meeting among AGS, ATO and DPP on 20 April, 1988.
Audit File Part II - Minutes of meeting among AGS, ATO and DPP on 2 May, 1988.
(i) These are documents containing information similar in character to that in Folios 168-171. For the reasons that those Folios are exempt, so too are these.
Folio 244 - File note re discussion between AGS and ATO on 13 October, 1987.
(i) I find that this is a confidential communication between the ATO and its legal adviser, AGS, in relation to legal proceedings which were then on foot. It is a document in respect of which legal professional privilege could be claimed and is exempt under section 42 .
Folio 247-248 - Letter from AGS to ATO on 3 December, 1987.
(i) I am satisfied that this is a confidential communication between solicitor and client to enable legal advice to be given. It is, therefore, exempt under section 42 .
Folio 249 - Record of telephone conversation between AGS and ATO on 5 February, 1988.
(i) Three discussions are noted on the one Folio. That dated 8 February, 1988 is not exempt under section 42 .
(ii) The first ten substantive lines of the note summarise information given to the AGS and are exempt under section 42 for they reveal confidential communications between the ATO and its legal adviser for the purpose of obtaining legal advice.
(iii) The remaining lines beginning ``Discussed'' to and including the date are not exempt for they are not communications of this nature.
Folios 265A-265B - Covering letter by AGS to ATO dated 12 February, 1988.
(i) This letter is a letter of legal advice from ATO's legal adviser. It is, I am satisfied, a confidential communication between the two and is exempt under section 42 .
Folio 271 - Copy of letter from ATO to AGS dated 1 March, 1988.
(i) This is a letter which the ATO has written for the purpose of obtaining legal advice from its legal adviser, AGS. It is exempt pursuant to section 42 .
Folio 289 - Copy of letter from the DPP to the ATO dated 23 February, 1988.
(i) Having regard to the information in this letter and the findings of fact I have made in relation to the role of the DPP at this stage of proceedings, I find that this letter was written by the DPP in performing its functions under the DPP Act. It did not write it as the legal adviser of the ATO and, for the reasons I gave earlier, the ATO did not regard it as its legal adviser. It is not exempt under section 42 .
Folio 336 - Record of meeting between AGS and ATO on 2 May, 1988.
(i) This is a record of communications between the ATO and the AGS for the purpose of the ATO's providing legal advice. I am satisfied that the communications are confidential and that they would be subject to legal professional privilege in legal proceedings. The folio is exempt under section 42 .
Folio 337 - Letter from AGS to ATO dated 5 May, 1988.
(i) The letter is a confidential communication between the ATO and the AGS for the purpose of the provision of legal advice. It is exempt under section 42 .
Folio 359 - File note re telephone conversation with AGS - undated.
(i) On the face of this document, I am not satisfied that it was a communication between the ATO and the AGS for the purpose of the ATO's receiving legal
advice. There is no other evidence, and I am not satisfied that it is exempt under section 42 .
Folios 402-404 - Records of conversations - with Auditor on 19 and 21 February, 1990, with Mr Collie on 20 February, 1990 and with AGS on 21 and 23 February, 1990.
(i) The conversation with the auditor is a conversation between two officers of the ATO. Those conversations and that with Mr Collie cannot be the subject of legal professional privilege. Folio 402 is not exempt.
(ii) Folio 403 records conversations between officers of the ATO. It is not exempt.
(iii) Folio 404 records a conversation between an officer of the ATO and an officer of the AGS. It is a confidential communication between the two to enable the ATO to obtain legal advice. It is exempt under section 42 .
Folio 406 - Letter from AGS to ATO dated 26 February, 1990.
Folios 516-517 - Letter from AGS to ATO dated 2 August, 1990.
Audit File Part II - Copy letter from AGS to ATO dated 12 February, 1988.
(i) Each of these letters is a confidential communication between the AGS and the ATO either giving legal advice or addressing issues so that legal advice might be given at a later time. Each would be subject to legal professional privilege in legal proceedings. Each is exempt under section 42 .
Audit File Part I - Letter from DPP to ATO dated 17 September, 1987.
98. For the reasons I have given, I:
1. set aside the decision which the respondent is deemed to have made under the Freedom of Information Act 1982;
2. substitute a decision that:
(1) the applicant is entitled to access to all documents described in Schedule B to the affidavit of Mr Graeme Manser sworn on 7 March, 1997 other than:
(a) the parts of documents in relation to which further consideration has been adjourned (see paragraph 3 below); and
(b) the following documents, or parts of documents:
Documents marked ``×'' ;
Documents which are totally exempt i.e.:
A. Under section 38:
• folio 104;
• folios 172-180;
• Audit File Part I - copy of facsimile from the ATO in Melbourne to the ATO in Brisbane on 24 June, 1988 and an office minute dated 24 June, 1988 re another taxpayer;
• Audit File Part II - File note re another taxpayer and Deed dated 14 June, 1988;
• Audit File Part II - Copy of file notes and losses forward; and
• Audit File Part II - Office memorandum re dual
assessments on 11 July, 1988.
B. Under section 42:
• folios 9-10;
• folios 11-14;
• folios 99-101;
• folios 265A-265B;
• folio 516-517;
• Audit File Part I - Minutes of meeting among AGS, DPP and ATO on 17 September, 1987;
• Audit File Part I - Notes re meeting AGS, DPP and ATO on 18 September, 1987;
• Audit File Part I - Record of meeting among DPP, AGS and ATO on 15 October, 1987;
• Audit File Part II - Copy letter from AGS to ATO dated 12 February, 1988;
• Audit File Part II - Copy minutes of meeting among AGS, DPP and ATO on 18 March, 1988;
• Audit File Part II - Minutes of meeting among AGS, ATO and DPP on 8 April, 1988;
• Audit File Part II - Minutes of meeting among AGS, ATO and DPP on 20 April, 1988; and
• Audit File Part II - Minutes of meeting among AGS, ATO and DPP on 2 May, 1988.
Parts of documents which are exempt i.e.:
• folio 7 - all information other than the two entries at the top of the document and relating to applicant;
• folio 98 - first two sentences of second paragraph beginning ``Re'';
• folio 122 - last paragraph beginning ``Net'' (N.B. total exemption under section 42);
• folios 122-123 - paragraph beginning ``Re'' on folio 123 and continuing for the first
half of folio 124 (N.B. total exemption under section 42);
• folio 125 - from the third line beginning ``he'' and ending ``Collie'' at the end of the fourth line and the first four lines of the second paragraph (N.B. total exemption under section 42);
• folios 168-169 - the last three lines on folio 168 and the first eleven lines on folio 169 to and including the word ``companies'' on that folio (N.B. total exemption under section 42);
• folio 169 - the last two lines (N.B. total exemption under section 42);
• folio 170 - seventeenth line commencing ``$'' (N.B. total exemption under section 42);
• folio 171 - fourteenth line commencing ``T'' (N.B. total exemption under section 42);
• folio 181 - all information to the left of the two circles at the right hand edge of the folio;
• folio 182 - all information other than that in the right hand circle and the circle to which it is connected;
• folio 202 - the first sentence beginning ``Mr'' in the first substantive paragraph and the first sentence beginning ``Mr'' in the second substantive paragraph (N.B. total exemption under section 42);
• folio 227 - the last sentence beginning ``They'' in the second dot point and the whole of the third dot point (N.B. total exemption under section 42);
• folio 228 - the first three sentences of the first paragraph on the folio, the name appearing after the words ``Collie and'' in the first line of the second paragraph and the second sentence (beginning ``The'') in the third paragraph (N.B. total exemption under section 42);
• folio 229 - paragraph (i) and the final paragraph beginning ``The'' (N.B. total exemption under section 42);
• folio 232 - fourth sentence (beginning ``None'') of first paragraph (N.B. total exemption under section 42);
• folio 240 - lines 4-9 (N.B. total exemption under section 42);
• folios 353-354 - the last five lines of folio 353 and the passage on folio 354 to the first ``12/10/88'';
• folio 355 - the figure starting ``$'';
• folio 360 - three lines following the list and the last six lines;
• folio 362 - from ``the'' in line two of the first sentence of the note dated 20 January, 1988 to the end of that sentence;
• folio 400 - the first sentence of the second paragraph;
• folios 451 and 452 - the words beginning ``as'' in each of the entries numbered 1, 3, 4, 9 and 10;
• Audit File Part I - Record of internal ATO meeting re settlements 10 July, 1987 - all names in the second and third paragraphs on the first folio other than the applicant's name;
• Audit File Part I - Record of telephone conversations re legal action on 28 September, 1987 - all of the document other than the sentence beginning ``I'' at the beginning of the third paragraph; and
• Audit File Part I - Copy of file note re another taxpayer on 29 November, 1987 (sic) (should read ``29 September, 1987'') -
- in the folio with the number ``56'' at the top - the amount shown in line 7, the first two words in the substantive paragraph starting at line 8 and the figure and next three words or groupings in line 10; and
- in the folio with the number ``44'' at the top - the amount shown in line 6.
• Audit File Part II - Copy of documents attached to the 1981 year return of another taxpayer - all folios other than:
- the letters written by Mr Collie dated 3 August, 1979 and 30 August, 1979; and
- two pro forma authorities giving Mr Collie to sign cheques (other than the name of the other person given such authority).
• folio 225 - the last two dot points (N.B. total exemption under section 42);
• folio 228 - fourth paragraph (N.B. total exemption under section 42);
• Audit File Part I - Record of internal ATO meeting re settlements 10 July, 1987 - all names (other than Mr Collie's name) referred to in the second and third paragraphs in the second paragraph of the first folio; and
• Audit File Part II - Copy of documents attached to the 1981 year return of another taxpayer - the name of the second signatory (i.e. other than Mr Collie) on two pro forma authorities to sign cheques.
• folios 160-161 - all of folio of 160 and all of folio 161 other than those words appearing after the date ``21.4.87'' when it first appears and up to and including the date ``27/4/87'';
• folio 249 - the first ten substantive lines; and
• folio 187 - the second entry starting after the second occasion on which the
date ``11 May, 1987'' appears.
3. Adjourn further consideration in relation to the following parts of the following parts of documents:
• folio 357 -
• Copy of file note re another taxpayer on 29 November, 1987 (sic) (should read ``29 September, 1987'') - the folio with the number ``44'' at the top.
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