AAT rules on document access denial

In a recent case before the Administrative Appeals Tribunal, the applicant firm, Gadens, represented Mr Sherwin in various business transactions.

Subsequently, Mr Sherwin was convicted of fraud and sentenced to 10 years’ imprisonment.

In the course of investigating Mr Sherwin, the respondent, the Australian Securities and Investments Commission (ASIC), had access to a number of documents that involved the applicant firm.

In December 2017, Mr Walsh, a financial journalist made a request of the respondent for documents under the Freedom of Information Act 1982 (Cth) (the Act). Mr Walsh sought disclosure of documents that detailed complaints, responses to complaints or findings about the applicant or its lawyers in matters involving Mr Sherwin and related businesses between 1 December 2012 and 30 June 2017. The respondent identified 41 relevant documents.

In March 2018, the respondent resolved to grant access to six documents in full but refused access to 34 documents in part. The applicant sought an internal review of the decision, which was affirmed. In May 2020, the Australian Information Commissioner affirmed the internal review decision.

The applicant subsequently applied to the Administrative Appeals Tribunal for review in relation to 39 documents.

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Issues

The issue for the tribunal in Gadens Lawyers Brisbane and Australian Securities and Investments Commission (Freedom of information) [2021] AATA 1634 was whether to refuse access to the 39 documents or grant access to the documents in a further redacted form.

Issues considered

The tribunal considered:

• whether the documents were conditionally exempt under s47G(1)(a) of the Freedom of Information Act 1982, and
• whether access to the documents would be contrary to the public interest for the purposes of s11A(5).

With respect to whether the documents were conditionally exempt, the tribunal noted it needed to be satisfied that “disclosure could unreasonably affect the applicant in respect of its lawful business or professional affairs”, which required an “objective assessment of the expected adverse effect” and “a need to balance public and private interests”.¹

The applicant submitted that the documents contained highly prejudicial and damaging information, and the respondent’s concerns about the conduct of the solicitors were merely of a “preliminary nature, one-sided” and “uncorroborated”.² The applicant also highlighted that the respondent referred its concerns to the Legal Services Commissioner, and there has been no adverse finding of unsatisfactory professional conduct or professional misconduct against an individual or members of the firm.

The respondent denied the applicant would be unreasonably affected by the disclosure of the documents, and submitted there was a “public interest in enhancing transparency around ASIC’s regulatory approach, practices and functions…”³

Ultimately, the tribunal was satisfied that disclosure of the documents would, or could reasonably be expected to damage the applicant’s reputation and unreasonably affect the applicant in its lawful business or professional affairs.

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The tribunal considered that while “the documents in question demonstrate to the public the way in which the respondent works, how it works with another agency, and how it refers the matter to another agency”,⁴ ASIC’s concerns about the conduct of the solicitors were peripheral to their central investigation and “not established facts”. The allegations were “serious”, “very old” and “unsubstantiated”.

Furthermore, “the applicant was not given a chance to respond to them”.⁵ The tribunal noted that “a large part of the material the subject of the application” was already in the public arena, however some matters were not.

The tribunal held that eight documents were conditionally exempt under s47G(1) of the Act. It accepted that some statements in the documents “may not appear to have an adverse impact on the applicant if read in isolation, but combined with statements in other documents they have the potential to create such an impact”.⁶

The tribunal subsequently turned to s11A(5) of the Act, which provides that “a person must be given access to a conditionally exempt document unless in the circumstances access to the document at that time would on balance be contrary to the public interest”.

The tribunal considered sections 11B(3) and (4), which set out factors which favour access, and irrelevant factors, as well as Guidelines 6.8 and 6.22.⁷

The tribunal was satisfied that granting access to the eight conditionally exempt documents would on balance be contrary to the public interest “as they could reasonably be expected to prejudice the fair treatment of individuals because they implicate all members of the applicant solicitors”, and “could reasonably be expected to harm the interests of an individual or group of individuals”.⁸ The tribunal rejected the respondent’s submission that disclosure would inform debate on a matter of public importance.

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The tribunal set aside the commissioner’s decision and in substitution, refused access to eight documents. The tribunal noted that Mr Walsh should be given access to a copy of the remaining documents.

Meagan Liu is a Law Graduate in the QLS Ethics and Practice Centre. This article has been approved by Grace van Baarle, Solicitor and Manager, QLS Ethics and Practice Centre.

Footnotes
¹ Gadens Lawyers Brisbane and Australian Securities and Investments Commission (Freedom of information) [2021] AATA 1634, [12] (Gadens).
² Ibid [13].
³ Ibid [15].
⁴ Ibid [23].
⁵ Ibid [25].
⁶ Ibid [27].
⁷ FOI Guidelines, Office of the Australian Information Commissioner, Version 1.4, December 2016.
⁸ Gadens (n1) [34].