Brisbane City Council v Albietz [2001] QSC 160 [2002] 2 Qd R 1

SUPREME COURT OF QUEENSLAND CITATION: BCC v Albietz [2001] QSC 160 PARTIES: BRISBANE CITY COUNCIL (applicant) v F N ALBIETZ (respondent) FILE NO: S 10342 of 2000 DIVISION: Trial PROCEEDING: Application for judicial review DELIVERED ON: 17 May 2001 DELIVERED AT: Brisbane HEARING DATE: 10 April 2001 JUDGE: Wilson J ORDER: That the application for judicial review be dismissed. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – application by Brisbane City Council for judicial review of Information Commissioner’s decision to allow access to documents revealing communications between the Council and State government departments – whether Brisbane City Council is a “government” for the purpose of s 38 Freedom of Information Act 1992 (Qld) – whether disclosure would cause damage to relations between the State and Brisbane City Council and whether disclosure was on balance in the public interest – whether the Information Commissioner erred in law in not considering claims for exemption from disclosure under ss 45(1)(c) and 49 of the Freedom of Information Act 1992 (Qld) ADMINISTRATIVE LAW – ACCESS TO INFORMATION - application by Brisbane City Council for judicial review of Information Commissioner’s decision to allow access to documents revealing communications between the Council and State government departments – whether Brisbane City Council is a “government” for the purpose of s 38 Freedom of Information Act 1992 (Qld) – whether disclosure would cause damage to relations between the State and Brisbane City Council and whether disclosure was on balance in the -- 1 of 10 -- 2 public interest – whether the Information Commissioner erred in law in not considering claims for exemption from disclosure under ss 45(1)(c) and 49 of the Freedom of Information Act 1992 (Qld) LOCAL GOVERNMENT – POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY – application by Brisbane City Council for judicial review of Information Commissioner’s decision to allow access to documents revealing communications between the Council and State government departments – whether Brisbane City Council is a “government” for the purpose of s 38 Freedom of Information Act 1992 (Qld) STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – whether Brisbane City Council is a “government” for the purpose of s 38 Freedom of Information Act 1992 (Qld) Acts Interpretation Act 1954 (Qld), s 32A, s 36 City of Brisbane Act 1924 (Qld), s 6A Freedom of Information Act 1992 (Qld), s 4, s 7, s 8, s 15, s 21, s 30(3)(c), s 33(2), s 36, s 38, s 41, s 45(1)(c), s 46(2)(b), s 47, s 49, s 51(1), s 81, s 98, s 100, s 102(1)(c), s 104(2) Judicial Review Act 1991 (Qld), s 20 Local Government Act 1993 (Qld), s 25 Statutory Bodies Financial Arrangements Act 1982 (Qld) Statutory Bodies Financial Administration and Audit Act 1977 (Qld) Re Cairns Port Authority and Department of Lands (1994) 1 QAR 663, cited. Stack & Ors v Brisbane City Council & Ors (1995) 59 FCR 71, followed. COUNSEL: EJ Morzone for the applicant GJ Sorensen (solicitor) for the first respondent No appearance for the second respondent SOLICITORS: Brisbane City Council Legal Practice for the applicant GJ Sorensen for the first respondent No appearance for the second respondent [1] WILSON J: This is an application pursuant to s 20 of the Judicial Review Act 1991 to review a decision of the first respondent in his capacity as the Information Commissioner that certain matter does not qualify for exemption from access under the Freedom of Information Act 1992. [2] On 5 November 1998, Mr Santo Santoro, then a member of the Legislative Assembly, lodged an application with the FOI Co-ordinator of the Departments of -- 2 of 10 -- 3 Transport and Main Roads seeking access to all documents in relation to the City Valley Bypass, including communications between all Ministers for Transport and all Ministers for Main Roads and the present applicant. The scope of the application was subsequently narrowed. Upon being informed of the request, the applicant claimed that the documents were exempt pursuant to ss 38, 45(1)(c) and 49 of the Freedom of Information Act (exhibit GJS-3 dated 7 January 1999). On 8 January 1999 a determination was made to grant access to some documents and to refuse access to others because they contained matter that was exempt under s 36 (Cabinet matter) and s 38 (Matter affecting relations with other governments) of the Act (exhibit GJS-4 dated 8 January 1999). There was an internal review of the initial decision (exhibit GJS-6 dated 28 January 1999) followed by a review by the present first respondent under Part 5 of the Act. The applicant was advised of the first respondent’s preliminary view that none of the documents qualified for exemption under s 38(1) (exhibit GJS-7 dated 21 May 1999). It indicated that it maintained its objection to disclosure of the documents (exhibit GJS-8 dated 11 June 1999), and participated in the review before the first respondent by making written submissions (exhibit GJS-12 dated 13 July 1999). Ultimately the pursuit of some of the documents was abandoned, and the Department of Main Roads (which held all the documents in issue) withdrew its claim for exemption in respect of two. The first respondent determined that a small number of documents (folios 20, 21, 113 and 152) did not qualify for exemption under s 38. [3] The present application is to review that decision of the first respondent. Mr Santoro was joined as second respondent by order of the Court made on 15 December 2000 and served with all necessary documents. He chose to abide the order of the Court, reserving his position on any costs application which might affect him. The Department of Main Roads did not challenge the first respondent’s decision, and took no part in the application for judicial review. [4] The questions arising on this application are – (i) whether the applicant is a “government” within the meaning of s 38 of the Freedom of Information Act; (ii) whether the first respondent erred in finding that disclosure would not cause damage to relations between the State and the applicant, and that disclosure was on balance in the public interest; (iii) whether the first respondent erred in not considering claims for exemption under ss 45(1)(c) and 49. [5] The object of the Freedom of Information Act is – “to extend as far as possible the right of the community to have access to information held by Queensland government” (s 4). The right of access is given by s 21 which is in these terms – -- 3 of 10 -- 4 “Right of access 21. Subject to this Act, a person has a legally enforceable right to be given access under this Act to – (a) documents of an agency; and (b) official documents of a Minister.” A local government is an “agency” within the meaning of the Act (s 8), and so a person has a right of access to documents of a local government. [6] Section 38 provides – “Matter affecting relations with other governments 38. Matter is exempt matter if its disclosure could reasonably be expected to – (a) cause damage to relations between the State and another government; or (b) divulge information of a confidential nature that was communicated in confidence by or on behalf of another government; unless its disclosure would, on balance, be in the public interest.” [7] The applicant is clearly a “local government” within the meaning of the Freedom of Information Act. It is a body corporate constituted under the City of Brisbane Act 1924 with “such powers as are conferred on it under… [that] or any other Act”: City of Brisbane Act s 6A. Under s 25 of the Local Government Act 1993 it has “jurisdiction to make laws for, and otherwise ensure, the good rule and government” of the area of the City of Brisbane. It is a “statutory body” for the purposes of the Statutory Bodies Financial Arrangements Act 1982, and a “public sector entity” for the purposes of the Statutory Bodies Financial Administration and Audit Act 1977. In Stack & ors v Brisbane City Council & ors (1995) 59 FCR 71 Cooper J of the Federal Court reviewed the legislative scheme by which the applicant is created and within which it operates, before concluding that it was an “authority of the State” within the meaning of s 163 of the Patents Act 1990 (Cth). He observed at p 83-84: “Thus, the legislative scheme creates the BCC a body corporate with considerable autonomy and wide discretion in the exercise of its powers and functions within its territorial boundaries. The BCC has power to and does make local laws on a wide range of issues including public transport, roads, parks, the environment, waste disposal, town planning, sewerage and water supply. Councillors and a Lord Mayor are elected at triennial elections. Funds for BCC operations are raised by, inter alia, the levying of rates and charges -- 4 of 10 -- 5 and by borrowings and investment. The BCC brings down its own Budget for each financial year. However, regard must be had to the degree of control over the BCC potentially and actually exercised by the Minister and the Governor in Council. All local laws must be approved by the Minister. The Minister and Governor in Council have ultimate control over town planning matters and State laws prevail over local laws to the extent of any inconsistency. Further, borrowings are subject to approval by the Governor in Council and the State Government is not subject to rates and charges which are levied on rateable land. It is also clear that the BCC does not assume its authority from the electors in the BCC elections, but rather from the legislative scheme outlined above. The context in which the BCC exists must also be noted. All the functions and powers exercised and exercisable by the BCC are matters within the constitutional power of the State Government. The BCC is not a “third tier of government” provided for in the Federal Constitution. Rather, the BCC is a statutory body, established and ultimately controlled by State legislation. Its functions and powers are State governmental functions and powers, exercised in the interests of the community, which the State has delegated to it in legislation. Having regard to these matters, it can be seen that the BCC is involved in and is part of the State governmental function such that its activities are “impressed with the stamp of government”. It has been given by the State the power to direct and/or control the affairs of the people within its territorial boundaries on behalf of the State. The executive of the State Government, through its Ministers and the Governor in Council, retains a prominent role and a practical involvement.” [8] “Government” is a word which can be used in various senses. It can be used to describe the concept of control or direction exercised over the actions of people in a community. It can also be used to describe an entity which exercises such control or direction. It is the latter usage which is to be found in the definition of “government” in the Freedom of Information Act, a definition which is inclusive rather than exhaustive. In s 7 “government” is defined as including “an agency and a Minister”, and “agency” is defined in s 8(1) as meaning “a department, local government or public authority”. Those definitions apply “except so far as the context or subject matter otherwise indicates or requires” (Acts Interpretation Act 1954 s 32A). [9] “Government” is used in different senses in various provisions of the Freedom of Information Act. Sometimes it is used in the conceptual sense – for example, s 41 (functions of government). Sometimes it is used to refer collectively to different controlling bodies all of which are bound by the provisions of the Freedom of Information Act – for example, the long title of the Act, s 15 (documents held by government; information concerning government operations): in such instances it -- 5 of 10 -- 6 usually appears as a noun unqualified by either the definite article “the” or the indefinite article “a” or as an adjective (although in the long title of the Act it is used twice without any qualifying article, but also once preceded by the definite article). Sometimes it is used expressly to refer to a local government – for example, s 33(2) which provides: “(2) An application for access to a local government’s document is to be dealt with on behalf of the government – (a) by the government’s principal officer; or (b) by such other officer of the government as the government, by resolution, directs, either generally or in a particular case” and the definition of “principal officer” in s 7: that expression means – “(b) in relation to a local government – the chief executive officer (however described) of the government”. (emphasis added), when it is clearly intended to refer to an entity which exercises control or direction, and indeed one within the meaning of “agency” in the Act. Sometimes it is used in juxtaposition with the word “agency” – for example, s 51 (1) provides: “51.(1) An agency or Minister may give access to a document that contains matter the disclosure of which may reasonably be expected to be of substantial concern to a government, agency or person only if the agency or Minister has taken such steps as are reasonably practicable to obtain the views of the government, agency or person concerned about whether or not the matter is exempt matter.” (Emphasis added.) [10] “The State” means “the State of Queensland” (Acts Interpretation Act s 36). The expression is used elsewhere in the Freedom of Information Act sometimes to refer to the State of Queensland in the sense of the legal entity that is the Queensland State Government – for example s 30(3)(c) (copyright of a person other than the State), s 46(2)(b) (confidence owed to a person other than the State), s 49 (financial or property interests of the State or an agency), s 98 (proceedings instituted by the State), s 100 (Attorney General may appear on behalf of the State, costs against the State), s 102(1)(c) (no action lies against the State), s 104(2) (liability attaches to the State), and sometimes to denote the geographical area known as Queensland – for example, s 7 (definition of “public library” – a library in the State), s 47 (the economy of the State). [11] Section 38(a) refers to “relations between the State and another government” and s 38(b) refers to information communicated in confidence “by or on behalf of another government”. While s 38(b) was relied on by both the original decision-maker and the internal review (exhibits GJS-4 and GJS-6), it was not addressed in either the present applicant’s submissions to the first respondent (exhibit GJS-12) or those of the Department of Main Roads (exhibit GJS-14). -- 6 of 10 -- 7 [12] The first respondent considered that the Legislature could not have intended that “government” in s 38 be read according to this extended definition in s 7 of the Freedom of Information Act. He said – “21. … … To read the word ‘government’ in s 38 according to the s 7 definition of ‘government’, would produce a nonsensical reading, ie, ‘cause damage to relations between the government of the State of Queensland and another Department (or public authority or Minister) of the State of Queensland’. 22. The use of the word ‘another’ to qualify the word ‘government’ in s 38(a) and s 38(b) implies that those other governments to which the provisions refer have a character and status similar to that of the government of the State of Queensland, ie, they are autonomous governments with plenary law-making powers for their territorial jurisdiction (although subject to any constraints arising from their position within a federal system of government)… . … … … … 25. The use of the words ‘relations between the State and another government’ in s 38(a) of the FOI Act indicates to me that the legislature intended to protect relations between the government of the State of Queensland and other autonomous governments of similar status, not relations between the two levels of government within Queensland. I consider that the correct interpretation of the phrase ‘another government’ in the context of s 38 of the FOI Act is that it refers to the Commonwealth government, the governments of other Australian States and territories, and the governments of foreign states.” [13] In my opinion the first respondent was correct in holding that the applicant is not a “government” within the meaning of s 38. “The State” in that section refers to the Queensland State Government. As I have sought to demonstrate, the word “government” does not have a consistent meaning throughout the Act. The applicant’s very existence and operation depend upon the Queensland State Government, and the fact that the Freedom of Information Act, an enactment of the legislative branch of the Queensland State Government, gives a person a right of access to documents of the applicant is itself a manifestation of its subordination to that government. Section 38 is concerned not with relations between various components of government in the conceptual sense but with relations between governments strictly so-called. I can discern no error of law in the first respondent’s approach to the question, or in his conclusion. [14] The first respondent’s findings that disclosure of the matter could not reasonably be expected to cause damage to relations between the State and the applicant and that disclosure would on balance be in the public interest were attacked as being arbitrary and made without evidence to support them. In order to succeed on these grounds the applicant would need to show an absence of evidence, rather than an -- 7 of 10 -- 8 insufficiency of evidence. The Department bore the legal onus of establishing that its decision to refuse access was justified (Freedom of Information Act s 81), although the present applicant, which supported the Department’s decision, had an evidentiary onus to ensure that there was material before the first respondent from which he could be satisifed that all of the elements of the exemption had been established. (See Re Cairns Port Authority and Department of Lands (1994) 1 QAR 663 at 676 – 677, in relation to the evidentiary onus carried by an applicant in a “reverse-FOI” case. The position of the present applicant was analogous.) Neither the Department nor the present applicant chose to put any evidence before the first respondent; they simply made assertions in their submissions. [15] Because the first respondent’s conclusion that the applicant is not a “government” within s 38 is correct, it is not necessary for me to determine whether he erred in making those findings. Suffice it to say, the documents themselves were before him: they were some evidence from which inferences might be drawn. [16] Soon after the second respondent’s application for access to all documents in relation to the City Valley Bypass was first received, the Department of Transport consulted the present applicant in accordance with s 51 of the Freedom of Information Act. The applicant responded in these terms – “The copies of documents which you submitted with your letter have been examined and I advise that Council considers the documents exempt pursuant to Sections 38, 45(1)(c), and 49 of the Freedom of Information Act 1992. The Council’s reasons for forming that view are that the release of the documents:- (1) could reasonably be expected to:- (a) cause damage to relations between your Departments and the Council; and (b) divulge information of a confidential nature that was communicated in confidence by the Council; (2) would disclose information concerning the business and financial affairs of the Council and could reasonably be expected to have an adverse effect on those affairs or prejudice the future supply of such information to government; and (3) could reasonably be expected to have a substantial adverse effect on the financial and property interests of the State and the Council. In support of this claim, I advise that the documents are the result of discussions held between Council officers and officers of Queensland Transport and/or Main Roads for the purpose of considering various options in relation to the City Valley Bypass. I am advised that these discussions were frank and open and that -- 8 of 10 -- 9 documents were provided to the State in good faith on the understanding that they would be treated confidentially. Council is of the view that the public interest in this regard lies not with the release of the documents but with their exemption, as it is in the public’s interest that Governments of all levels can continue to hold discussions in a frank and forthright manner particularly in relation to the funding of major projects that will ultimately be to the overall advantage of the public” (Exhibit GJS-3) [17] That was the only occasion on which the applicant referred to ss 45(1)(c) and 49 which provide – “45(1) Matter is exempt matter if – (c) its disclosure- (i) would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and (ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government; unless its disclosure would, on balance, be in the public interest.” “Matter affecting financial or property interests 49. Matter is exempt matter if its disclosure could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency unless its disclosure would, on balance, be in the public interest.” [18] When the application for external review was made to the first respondent, he wrote to the applicant saying (inter alia) – “In a letter to the Department dated 7 January 1999, you advised that the Council objected to disclosure of folios 020, 021, 076, 077, 113, 122, 123, 152, 153, 154, 180 and 181 on the basis that they are exempt from disclosure under s 38, s 45(1)(c) and/or s 49 of the FOI Act. … .. The Department ultimately decided that those folios were exempt under s 38(a) and/or s 38(b) of the FOI Act… … … … … … … .. -- 9 of 10 -- 10 The purpose of this letter is to advise you of my review, and to ascertain whether the Council objects to the disclosure to the applicant of the enclosed documents… … … . If the Council objects to disclosure of the enclosed documents (or any part of them), you may care to briefly explain the basis for the Council’s objection. I should point out that I have already communicated to the Department my preliminary view that none of the documents qualify for exemption under s 38(1) of the FOI Act… ..” (Exhibit GJS-7) [19] The applicant responded on 13 July 1999 with lengthy submissions on s 38 of the Act (exhibit GJS-12). It did not refer to s 45(1)(c) or s 49. Nor did the Department in its submissions lodged on 21 July 1999 (exhibit GJS-14). On 19 October 1999 the first respondent advised the applicant of his intention to proceed to determine, on the basis of the material before him, whether or not folios 020, 021, 113, 152 and 179 qualified for exemption under s 38(a) (exhibit GJS-13). In these circumstances, the applicant should be taken to have abandoned claims for exemption under s 45(1)(c) and s 49, and the first respondent was under no obligation to consider such claims for exemption. The first respondent made his determination on s 38, making no mention of s 45(1)(c) or s 49. He made no reviewable error in so doing. Order: That the application for judicial review be dismissed. -- 10 of 10 --