JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : BGC (AUSTRALIA) PTY LTD -v- FREMANTLE PORT AUTHORITY & ANOR [2003] WASCA 250
CORAM : EM HEENAN J
HEARD : 18 MARCH 2003
DELIVERED : 15 OCTOBER 2003
FILE NO/S : SJA 1095 of 2002
MATTER : Freedom of Information Act 1992 and the Information Commissioner Decision Ref No D0232002
BETWEEN : BGC (AUSTRALIA) PTY LTD
Appellant
AND
FREMANTLE PORT AUTHORITY
First Respondent
WESTERN AUSTRALIAN LAND AUTHORITY
Second Respondent
Catchwords:
Administrative law - Freedom of information - Exempt matter - Confidentiality - Breach of confidence for which a legal remedy could be obtained - Obligation of confidence arising from express contractual provision - Whether contractual claim for confidence unenforceable as contrary to public policy for access to documents of public agencies - Restrictions on extent of access available under Freedom of Information Act
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- Scope for review by Information Commissioner or court of collateral purposes or of false claims for confidentiality by agency
Legislation:
Freedom of Information Act 1992
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr M C Hotchkin
First Respondent : Mr M G Pendlebury
Second Respondent : Mr C W Lockhart
Solicitors:
Appellant : Hotchkin Hanly
First Respondent : Clayton Utz
Second Respondent : Pullinger Readhead Stewart
Case(s) referred to in judgment(s):
A v Hayden (1984) 156 CLR 532
Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of Australia (1977) 139 CLR 54
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146
Corrs Pavey Whiting & Byrne v Collector of Customs (Victoria) & Anor (1987) 14 FCR 434; 74 ALR 428
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
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Hughes Aircraft Systems International v Airservices Australia [1997] 76 FCR 151; 146 ALR 1
Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550
Meehan v Jones (1982) 149 CLR 571
R v Young (1999) 46 NSWLR 681
Re Speno Rail Maintenance Australia Pty Ltd & Anor v The Western Australian Government Railways Commission [1997] WAI Cmr 29
Sankey v Whitlam (1978) 142 CLR 1
Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; 108 ALR 163
Smith Kline & French Laboratories (Australia) Ltd v Secretary to the Department of Community Services & Health (1990) 22 FCR 73; 89 ALR 366
Smith Kline & French Laboratories (Australia) Ltd v Secretary to the Department of Community Services & Health (1991) 28 FCR 291; 99 ALR 679
Victorian Public Service Board v Wright (1986) 160 CLR 145
Case(s) also cited:
Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645
AG Australia Holdings Limited v Burton & Anor [2002] NSWSC 170
B v Brisbane North Regional Health Authority [1994] QICmr (31 January 1994); (1994) 1 QAR 279
Garrett v Nicholson [1999] 21 WAR 226
Kioa v West (1985) 159 CLR 550
Lloyd v Faraone [1989] WAR 154
QBE Insurance Limited v Moltoni Corporation Pty Ltd [2000] 22 WAR 148
Re Morris (Deceased) (1943) 43 SR (NSW) 352
Sinclair v Maryborough Mining Warden (1975) 132 CLR 473
The Commonwealth of Australia v John Fairfax & Sons (1980) 147 CLR 39
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
Villani v Delstrat Pty Ltd [2002] WASC 112
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1 EM HEENAN J: In December 2001 negotiations occurred between the Fremantle Port Authority (the "agency") and BHP Billiton Ltd ("BHP") about the proposed sale by BHP of land which it owned or controlled at James Point in Cockburn Sound south of Fremantle. The Fremantle Port Authority, trading under the name "Fremantle Ports", wished to purchase the land from BHP so that it could expand and provide common user facilities at the private port which it operated in Cockburn Sound. These negotiations and the associated correspondence led to an agreement for the sale of the land to the agency and another agency of the State of Western Australia under a Sale of Land Contract dated 20 December 2001.
2 The appellant, BGC (Australia) Pty Ltd, now appeals to this Court under s 85(1) of the Freedom of Information Act 1992 from a decision of the Information Commissioner ("the Commissioner") made on an external review refusing to order access, other than a limited and restricted kind, to documents relating to this sale which the appellant had requested under the Act. In March 2002 the appellant applied to the first respondent for access under the Act to any documents or correspondence between the Fremantle Port Authority and any other party, including the Minister for Planning and Infrastructure, relating to the sale of the BHP land to the State Government. The appellant also made applications to the Minister for Planning and Infrastructure and to the Western Australian Land Authority (the second respondent) in almost identical terms.
3 Ten documents were identified by the first respondent in answer to that request but access was refused on the ground that each of the documents was exempt under the provisions of Sch 1 of the Act, cls 7(1) and 8(1). The ten documents so identified included the Sale of Land Contract of 20 December 2001. The agency asserted that the documents were exempt on the grounds that some were the subject of legal professional privilege and that others were exempt because their disclosure would be a breach of confidence for which a legal remedy could be obtained. The appellant then questioned the claims for exemption and the General Manager, Commercial Operations, of the first respondent enquired into the initial decision but later notified the appellant that he was satisfied that the agency had complied with its obligations under the Act and confirmed the decision to refuse access.
4 The appellant then sought external review of the decision of the first respondent to refuse access, resulting in the matter being considered by the Information Commissioner pursuant to Pt IV Div III of the Act. What
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then transpired is fully and succinctly described by the Information Commissioner in her reasons for decision:
"vi I obtained the disputed documents from the agency, together with the agency's FOI file in respect of this application. After my initial inspection of those documents, my Legal Officer informed the complainant [appellant] that most of the documents, including the Contract, appeared to be covered by a confidentiality clause for the Contract. However, the complainant [appellant] was not prepared to withdraw its complaint at that point.
vii Following that, on 25 June 2002, the parties were informed in writing of my preliminary view of this complaint, including my reasons. It was my preliminary view that parts of the requested documents, consisting primarily of email messages, may not be exempt, but that some of the attachments to those emails and Document 10 (the Sale of Land Contract) may be exempt under clause 8(1). I also expressed the view that some attachments appeared to me to fall outside the scope of the complainant's [appellant's] access application because they do not directly relate to the sale of the BHP land. Those attachments are a Co-ownership and Partitioning Agreement ('the Agreement') and the Kwinana Rail Terminal Lease ('the Lease') attached to Document 8. It was also my preliminary view that some personal information in Documents 1, 3, 4, 5, 6 and 7 may be exempt under clause 3(1), but it was, in any event, practicable to delete that information from those documents.
viii Subsequently, the agency provided the complainant [appellant] with access to edited copies of the covering emails in Documents 1, 3, 4, 5, 6 and 7. The complainant [appellant] responded in writing to my preliminary view, but did not withdraw its complaint in respect of the matter deleted from the covering emails in Documents 1, 3, 4, 5, 6 and 7 or the remainder of the disputed documents (Documents 2, 8, 9 and 10)."
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The learned Information Commissioner then proceeded to complete her external review. She upheld the first respondent's submissions that document 10 (the Sale of Land Contract), the draft copies of document 10, and the emailed messages to designated documents 2, 8 and 9 are exempt under cl 8(1) because disclosure of them would be a breach of the contractual obligation of confidence for which a legal remedy could be obtained by the other parties to that contract. The learned Commissioner also concluded that the six other documents, namely documents 1, 3, 4, 5, 6 and 7, contained personal information concerning third parties which was exempt matter under cl 3(1) of the Sch 1 to the Act which should not be disclosed. However, the learned Information Commissioner concluded that there should be access given to those latter documents with the exempt personal information deleted and limited the extent of the deletions to those documents. Having so identified, and reduced the content of documents 1, 3, 4, 5, 6 and 7, which were exempt under cl 3(1), the Information Commissioner ordered that the appellant was entitled to be given access to those documents with only the material which she had identified being deleted and nothing else. As already explained, the Information Commissioner upheld the refusal of access by the first appellant to the other documents based on the grounds of confidentiality under cl 8(1) of Sch 1.
5 From this decision of the Information Commissioner to refuse to allow, anything but limited access to six of the ten documents identified as being material by the agency, the appellant has appealed on two grounds, namely:
"1. The Information Commissioner erred in law in finding that the disclosure of documents 2, 8, 9 and 10 would be a breach of a contractual obligation of confidence for which a legal remedy could be obtained by the other parties to the contract, and hence that Document 10, the draft copies of Document 10, and the email messages, designated documents 2, 8 and 9, are exempt under clause 8(1) of the Schedule to the Freedom of Information Act 1992.
2. The Information Commissioner erred in law in failing to afford the Appellant natural justice by setting out in her reasons the text of the confidentiality clause, such that the Appellant could assess whether the disclosure of the disputed documents would constitute a breach of confidence by reason of that clause."
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6 Consequently, this appeal relates only to the refusal of access by the Information Commissioner to the four of the ten documents disclosed by the first appellant on the grounds that each of the documents was exempt within the meaning of cl 8(1) of Sch 1 to the Act.
7 The right to be given access to the documents of an agency (other than an exempt agency) which any person has is conferred by s 10 of the Act but is given expressly subject to and in accordance with the Act. Neither of the respondents is an exempt agency but, by virtue of s 23, each agency may refuse access to a document if it is an exempt document or contains exempt matter which cannot practicably be deleted from a copy of the document – s 24(b). If the agency decides to refuse access to a document, the reasons for the refusal and the findings on any material questions of fact underlying those reasons must be given – s 13(1)(b) and s 30. In the event of an external review, as occurred in this case, the Information Commissioner is under an obligation to give such directions and to do such things as she thinks necessary to avoid the disclosure of exempt matter – s 74(1) and may not include exempt matter, or certain other matter, in a decision on a complaint or in reasons given for the decision – s 74(2).
8 Although an agency has a discretion whether or not to disclose a document containing certain exempt matter – s 23(1)(a), the Information Commissioner on an external review does not have the power to make a decision to the effect that access is to be given to an exempt document – s 76(4). Similarly, when hearing and determining an appeal to this Court under s 85 of the Act, this Court is obliged to avoid the disclosure of exempt matter – s 90(1)(a) and may not include any exempt matter in its decision in review proceedings or in reasons given for the decision – s 90(3).
9 In this respect, if this Court is of the opinion that it is necessary to do so in order to prevent disclosure of exempt matter, the Court may receive evidence and hear argument in the absence of the public and any party or representative of a party - s 90(2). This power was utilised in this appeal in two respects. In the first place I received, and accepted, on a confidential basis in the sense that its contents were not disclosed to the appellant or to its counsel, an affidavit of the General Manager, Commercial Operations, of the appellant sworn 14 March 2003 identifying the parties to the land sale contract (document 10) and annexing a copy of a written confidentiality agreement between the vendor of the land and the first respondent, containing the terms providing for the preservation of confidentiality of information exchanged in the
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course of the negotiations dealing with the proposed sale. Secondly, the Court was provided, on a confidential basis and without disclosure to the appellant or to its counsel, with the documents numbered 2, 8, 9 and 10 which had been referred to in the decision of the Information Commissioner and access to which is the subject of this appeal. I have examined those documents and have taken steps to have them returned to the solicitors for the first respondent without disclosure to the appellant, its counsel or solicitors – s 91 of the Act.
10 Accordingly, in this case, the question of whether or not the appellant is entitled to have access to any or all of documents 2, 8, 9 or 10 depends entirely upon whether or not the decision that each was an exempt document is correct. There is no discretionary component in this decision in the sense that a court might grant access, or restricted access, to the documents, notwithstanding that they contain exempt matter, on the basis of some asserted public interest consideration or other factor arising in the circumstances of the particular case.
11 The exemption identified by the agency when originally refusing access, and upheld by the Information Commissioner on external review, was that provided for by cl 8(1) of Sch 1 of the Act. Clause 8 deals variously with confidential communications and it is desirable that I set it out in full:
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Limits on exemption
(3) Matter referred to in clause 6(1)(a) [relating to deliberative processes] is not exempt matter under subclause (1) unless its disclosure would enable a legal remedy to be obtained for a breach of confidence owed to a person other than –
(a) a person in the capacity of a Minister, a member of the staff of a Minister, or an officer of an agency; or
(b) an agency or State.
(4) Matter is not exempt matter under subclause (2) if its disclosure would, on balance, be in the public interest."
The balancing exercise called for by subcl (8)(4) only refers to information of a confidential nature referred to in subcl (8)(2) and does not apply to matter which, if disclosed, would result in a breach of confidence for which a legal remedy could be obtained, as has been found to be the character of the matter which is the subject of this appeal.
12 The finding of the learned Information Commissioner was that there was a confidentiality clause in an agreement between the first respondent and another person, or body, which imposed a contractual obligation upon the first respondent to maintain the confidential nature of the confidential information so identified within the contract, and not to disclose any of the confidential information. The learned Information Commissioner concluded that this confidentiality clause covered all the information which had been exchanged between the first respondent and BHP or its associated corporations in the course of the negotiations leading to the contract for the sale of land and that the Sale of Land Contract itself contained a confidentiality clause prohibiting disclosure by the respondents or associated agencies of its contents. It followed from this conclusion of the Information Commissioner that any grant of access to the appellant of any part of the contents of documents 2, 8, 9 and 10 would constitute a breach of contract under one or both of the two contracts which contained confidentiality clauses and, as such, would be "a breach of confidence for which a legal remedy could be obtained", so bringing the documents within the description of exempt matter under cl 8(1).
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13 In her reasons for decision, the learned Information Commissioner observed that, because of its precise wording, she did not consider that cl 8(1) of Sch 1 applies to documents, the disclosure of which would give rise only to a cause of action which would be regarded as a suit in equity for breach of an equitable duty of confidence, as opposed to an action at law for breach of confidence, so following and applying an earlier decision of the Commissioner in Re Speno Rail Maintenance Australia Pty Ltd & Anor v The Western Australian Government Railways Commission [1997] WAI Cmr 29 at pars 15 – 28. Each of the counsel for the appellant, the first respondent and the second respondent submitted that it was questionable whether or not the exemption contained in cl 8(1) of Sch 1 to the Act was limited to matter, the disclosure of which would give rise to a legal remedy, but not to an equitable remedy for the ensuing breach of confidence. However, each of the parties also submitted that it was unnecessary for the court to address that issue on this appeal because the obligation for confidentiality which had been found to exist arose under the terms of express contracts providing for confidentiality, the breach of which would entitle the person or body claiming the benefit of the duty of confidence to an action for damages, and the recovery at the least of nominal damages, which was unquestionably a legal remedy.
14 I accept that it is unnecessary, for the disposition of this appeal, to determine whether or not the exemption from disclosure of matter referred to in cl 8(1) extends to disclosures which would result in purely equitable, as opposed to legal, relief being granted. That issue can be left for determination on another occasion, if it ever becomes necessary, by this Court. It is enough to say that such a distinction in this setting may be a very refined one, especially having regard to the accepted doctrine that injunctions may be granted in protection of common law, including contractual or statutory rights: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 per Gummow and Hayne JJ at 241; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 395 – 396 and Spry: Equitable Remedies, 6th ed (2001) at 567 – 606. It is enough to say that this issue may well merit closer examination in any future case if it arises.
Grounds of appeal
15 It is convenient to deal first with the second of the appellant's grounds of appeal, namely, the contention that there was an error in law by the learned Information Commissioner and a failure to provide natural justice because the text of the confidentiality clause giving rise to the obligation of confidence and the potential liability to a legal remedy was
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not set out verbatim, or in substance, in the reasons for decision. The submission of the appellant was that, unless the terms of the confidentiality clause were stated, or sufficiently stated, it would not be possible for the appellant to assess whether or not disclosure of the disputed documents would constitute a breach of confidence by reason of that clause.
16 One can readily appreciate that, as with any doubting Thomas, the appellant may not be convinced of the justification for this particular conclusion unless it sees and examines the evidence itself. However, on the basis that the confidentiality clause is itself part of the confidential information which may not be disclosed, that result is inescapable in the light of s 74(1) and (2) and s 90(1) and (3) of the Act. The legislation expressly acknowledges that it may be necessary to receive evidence and hear argument in the absence of the public and any party or representative of the party in order to preserve the confidentiality of exempt matter (s 90(2)). By this means the legislation ensures that the objective terms and effect of matter which is asserted to be exempt from disclosure because of confidentiality may be examined by an officer quite independent of the agency asserting a claim to confidentiality, namely, the Information Commissioner and, on appeal, by a Judge of this Court. That this scrutiny and examination, in order to protect the confidentiality of the material if the claim is justified, must be conducted without disclosure to the applicant, its counsel or solicitors is one example of these rare instances in which a party to litigation is deprived of full access to all material documents. However, this is not an isolated exception, and policy considerations which have prompted its acceptance, have been recognised in other areas of the law such as the power of a court to inspect documents in respect of which a claim for legal professional privilege has been made, or to scrutinise material relied upon for the issue of a search warrant, or to inspect documents for which a claim of public interest immunity has been asserted, without disclosing them to the party seeking inspection – see Sankey v Whitlam (1978) 142 CLR 1 at 46 and 110. None of these examples constitutes any denial of natural justice because, if the claim for privilege, confidentiality or public interest immunity is justifiably made, the party seeking to inspect the documents has no right of any kind to do so. Justice is achieved and the law applied in these situations by an examination of the documents by an independent officer or court acting on settled principles.
17 In the present case counsel for the appellant submitted that, by being deprived of any opportunity to examine and consider the confidentiality clauses relied upon by the Information Commissioner, the appellant was
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deprived of the opportunity of considering whether or not the clauses were conditional, or subject to some proviso which, in the particular circumstances, might have the result that the confidentiality asserted did not apply, or was of a restricted kind. Certainly, inability to examine the confidentiality clauses does mean that the appellant, and its legal advisers, are not able to reach any opinions or conclusions about whether or not the scope of the asserted confidentiality exists in the particular case or, if it does, whether it is materially restricted. Nevertheless, that is a determination which must be made by the agency itself when the claim for access is first made; by any person conducting an internal review of a decision as to access under Pt II Div 5 of the Act; by the Information Commissioner in the event of external review; or, by this Court on an appeal under s 85.
18 It is clear that the Information Commissioner, in the present case, scrutinised the confidentiality clauses in the contracts which applied and was satisfied that they established a contractual right to confidentiality over the material in question. The documents have been produced to this Court and, although without disclosure of their contents to the appellant, I have examined them as part of the review undertaken in the exercise of the appellant's right of appeal. With respect, I consider that the Information Commissioner was correct in her conclusion that these documents created a contractual duty on the parties to the contracts to preserve the confidentiality of the information and materials obtained, including the confidentiality of the documents which contained those obligations. For these reasons the appellant's second ground of appeal must fail.
19 This same conclusion was reached by Owen J in Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 556 – 557 where his Honour was faced with a similar situation in that the question of whether the document was exempt depended, to a significant degree, on the contents of the document itself and, therefore, the applicant and his counsel were severely handicapped in the conduct of the appeal by being unable to scrutinise the document. Nevertheless, Owen J concluded that this Court has no discretion to give access to the document and, whether during the hearing or in its reasons for decision, must not disclose exempt information to any person, including a qualified legal practitioner. With respect, I agree with his Honour's conclusion and its application to the similar situation which has arisen in this case.
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Enforceability of contractual provisions for confidentiality
20 The first ground of appeal by the appellant in effect acknowledges the existence of a contractual term or terms in agreements between the agency and BHP purporting to create an obligation of confidentiality on the agency and others with respect to the information provided by BHP during the course of the negotiations and with respect to the terms of the sale of land contract. However, the appellant challenges the claim for confidentiality in several ways which were developed more fully during the arguments advanced by counsel for the appellant. The appellant's position, essentially, is that upon its proper construction, disclosure of the material requested, and particularly disclosure of the Sale of Land Contract, would not constitute a breach of the obligations of confidence asserted by the respondent to have been established by the contracts. In essence, this submission raises a question of the proper construction of the terms of the contractual obligations providing for confidentiality. The appellant submits this must be undertaken by the court and, to allow for procedural fairness, will require the disclosure of at least the contractual terms said to impose the obligation of confidentiality, in order to enable the appellant to address that issue. However, for the reasons which I have expressed in dealing with the second ground of appeal, I am satisfied that the court does not have the power to disclose exempt material, even on a limited basis, or under conditions to the appellant or to its counsel but this does not dispense with the need for the court to undertake the duty of construing the contractual provisions itself.
21 The second basis upon which the appellant challenges the alleged contractual provision of confidentiality is by submitting that, by analogy with the principles by which equity will examine a claim for the protection of confidential information, there are grounds upon which a court will not intervene to protect the disclosure of alleged confidential information and that one or more of these exists, or may exist, in the present case. Intervention by a court exercising jurisdiction in equity may well turn on a consideration of all the circumstances, for there can be no breach of the equitable obligation unless the court considers that a confidence reposed has been abused or that unconscientious use has been made of the information or is threatened – Smith Kline & French Laboratories (Australia) Ltd v Secretary to the Department of Community Services & Health (1991) 99 ALR 679 affirming Gummow J in Smith Kline & French Laboratories (Australia) Ltd v Secretary to the Department of Community Services & Health (1990) 22 FCR 73; 89 ALR 366. The grounds upon which a court exercising equitable
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jurisdiction may decline to enforce or protect an obligation of confidence include:
"The fact that the information or material the subject of the claim is not truly 'confidential'; that the confidentiality attaching to material has been lost by general disclosure or by becoming known in the public domain; that the information which is the subject for the claim for confidentiality is old and that it cannot be the intention of the parties that it should remain confidential after so long; that the preservation of the confidentiality would be contrary to the conscience of equity in that doing so may involve the concealment of a crime, or of a tort, or of a fraud, or a breach of a fiduciary or other obligation; that it would be inequitable to enforce the confidence because the person attempting to enforce the confidentiality of the information had, by his conduct, created a false or misleading situation reflecting adversely on the party owing the obligation of confidentiality which required the person under the obligation of confidentiality to disclose some or all of the information in his own defence".
See Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (Victoria) & Anor (1987) 14 FCR 434; 74 ALR 428 at 437, 450 and 451 and the authorities there examined.
22 Accordingly, in furtherance of this submission, the appellant argued that while the confidential obligation accepted by the first respondent might have protected the agency from disclosing any of the information received during the course of negotiations, once the negotiations had been concluded and a formal agreement for the sale and purchase of land on express terms was reached resulting in a transfer of property from BHP to the second respondent, the fact of that sale and its terms, affecting as they did the use of public moneys, could not be within the scope of any obligation of confidentiality which equity would protect or, further, would not be within the scope of the contractual claim for confidentiality properly construed. I will return to an examination of the significance of the principles upon which a court of equity may decline to enforce any confidence on discretionary or other grounds for a claim for exemption on the grounds of confidentiality under the Freedom of Information Act.
23 It is to be noted, however, that on the ultimate issue, but not on the existence and content of the equitable principles, Gummow J was in dissent in Corrs Pavey Whiting & Byrne v Collector of Customs (Victoria) & Anor (supra) in holding that the term "breach of confidence"
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in s 45 of the Freedom of Information Act 1982 (Clth) was used in the technical sense so that a document was an exempt document only if its disclosure would be actionable under general law. The majority, Sweeney and Jenkinson JJ concluded that s 45 of the Freedom of Information Act 1982 (Clth) conferred an exempt status on a document which contained any information received under circumstances imposing an obligation of confidence without regard to those considerations for public policy to which courts had allowed an influence in determining whether to grant or withhold remedies for a breach of confidence in its technical sense. However, the differences between s 45 of the Commonwealth Act, as it was, and cl 8(1) of Sch 1 of the Freedom of Information Act (1992) are marked. The Western Australian provision provides for matter to be exempt if its disclosure would be a breach of confidence for which a legal remedy could be obtained. This condition that the breach of confidence be one for which a legal remedy could be obtained, in my view, means that the phrase "breach of confidence" is indeed used in the "technical sense" described by Gummow J so that the existence of a good defence to an action for breach of confidence, denying the entitlement to a remedy, would mean that disclosure of that particular information would not constitute a breach of confidence within cl 8(1) of Sch 2. I immediately add, however, that such matter may nevertheless be an exempt confidential communication if it satisfies the requirements of cl 8(2) of the Schedule but, in that case, if its disclosure would, on balance, be in the public interest, the provisions of cl 8(4) of the Schedule would mean that it would not be exempt. In other words, material in this second category would require the agency, when dealing with the claim, any internal or external reviewer, and this Court on any appeal, to engage in conducting a balancing exercise taking into account any possible benefits of disclosure of material in the public interest. However, that is not this case.
24 This examination proceeds on the footing that information which gives rise to an obligation of confidence in equity, but not at law, may be within the scope of the exemption imposed by cl 8(1) of the Schedule to the Act. This also raises the question of the correctness of the view taken by the Information Commissioner in the earlier decision already mentioned – Re Speno Rail Maintenance Australia Pty Ltd & Anor v The Western Australian Government Railways Commission – that the clause does not apply to equitable obligations of confidence not enforceable by legal remedies. Again, as that issue was not argued by the parties on the grounds that it was not directly relevant to a determination of the appeal, it is best to put it aside for consideration in the future if ever that becomes necessary. These considerations, however, do raise extra
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grounds for attention if ever that issue requires future determination by this Court.
25 The short answer to this second line of challenge to the asserted confidential character of the information which is the subject of the appellant's request, is that the agency does not rely on any equitable obligation for the establishment of the asserted duty of confidence. Rather, the respondents submit that there is an express contractual obligation of confidence, the breach of which will give right to an action of damages, even if only nominal damages. Consequently, it is submitted, that the disclosure of any of the materials in respect of which a claim for confidence arises under the contractual provisions will expose the agency to a legal remedy, thus demonstrating that the material is "exempt" under the provisions of cl 8(1) of the Schedule. This response by the respondents also requires construction of the contractual terms relied upon by the respondents.
26 Thirdly, and perhaps most importantly, the appellant submits that even if the terms of the contracts between BHP and the first respondent purport to establish an obligation on the first respondent to maintain the confidentiality of the materials, including the Sale of Land Contract, such a contract is unenforceable. The basis for alleging that such a contract is unenforceable is that it is said to be inconsistent with the general obligation of any agency to give access to documents established by s 10(1) of the Act and that it is contrary to public policy to enforce a contractual term which may be included and relied upon simply to assert a freedom from the obligation of disclosure otherwise imposed by law.
27 In this regard, the appellant relies on a series of authority mostly deriving from the doctrines examined in A v Hayden (1984) 156 CLR 532. Broadly, the appellant's submission is to the effect that, insofar as the exempt nature of these documents depends upon a contractual obligation of confidence, a court will not aid the enforcement of an express contractual obligation of confidentiality, the effect of which would be to obstruct the administration of justice, or the implementation of a statutory right, because to do so would be contrary to public policy. Reliance was placed by the appellant on the following passage in the judgment of Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (Victoria) & Anor (supra) at 449:
"The truth as to what Gartside v Outram (1856) 26 LJ Ch (NS) 113 decided is less striking and more readily understood in terms of basic principle. It is that any court of law or equity
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would have been extremely unlikely to imply in a contract between master and servant an obligation that the servant's good faith to his master required him to keep secret details of his master's gross bad faith to his customers. Likewise, before any express contractual obligation of confidence is enforced at law or in equity the term relied on must be valid at law. A v Hayden (supra), provides one example. Cases where express terms, allegedly designed to protect trade secrets, have been struck down as being in restraint of trade provide further examples: Drake Personnel Ltd v Beddison [1979] VR 13 at 19-21; Pioneer Concrete Services Ltd v Galli [1985] VR 675."
See also Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 108 ALR 163 (F Ct, Fed Ct) at 172.
28 In A v Hayden (supra) various personnel of the Australian Secret Intelligence Service (ASIS) had carried out an exercise in Melbourne which went astray and in the course of which a variety of criminal offences were alleged to have been committed. The Government of Victoria requested the Commonwealth to disclose the identity of the participants, suspected of having committed offences, to the State Commissioner of Police so that an investigation could be conducted. The ASIS operatives sought to restrain the Commonwealth from disclosing their identities to the Victorian authorities on the basis that their contracts of employment with the Commonwealth provided for their identity and the details of their work in the course of training with ASIS to be kept confidential. The Full High Court refused to grant the injunctions requested on the basis that the term in the contracts of employment for the maintenance of the confidentiality of the identity and actions of the ASIS operatives was unenforceable. After analysing a series of authorities illustrating the principle that the Court will not enforce a contract which affects adversely or has the tendency so to affect the administration of justice including the investigation of crime, Mason J said, at 557:
"Sometimes it is said that a contract which the principle applies is void; at other times it is said that the contract is unenforceable or, as Lord Tenterden CJ expressed it in Wetherell v Jones (1832) 3 B & Ad 221 at 225-226; 110 ER 82 at 84, that the court will not lend its aid to the enforcement of the contract. The true position, as I see it, is that some contracts are void whereas others are valid, though the court would decline to enforce the particular provision in a valid contract in particular circumstances when enforcement of that provision would have
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an adverse effect on the administration of justice. Thus, a simple agreement not to disclose the existence of a serious criminal offence, which has been, or is about to be, committed in consideration of the payment of a sum of money may well be void because it is illegal. However, it will be otherwise with a contract which is in all respects lawful but nevertheless contains a provision which, if enforced according to its terms, will result in an interference with the administration of justice. Take a contract which contains a minor or subsidiary provision which, though not directed to non-disclosure of criminal offences, imposes an obligation of confidentiality in sweeping terms. If those terms are not susceptible of being read down, the court will refuse to lend its aid to the enforcement of the provision if enforcement would result in the non-disclosure of a criminal offence adversely affecting the administration of justice. In such a case the contract is not void; nor is it unenforceable in the sense in which that term is customarily used in the law of contracts. The case is one in which the court refuses a remedy on the ground of public policy. Beresford v Royal Insurance Co [1938] AC 586 is an illustration of such a case."
And then, in addressing the care and circumspection with which courts should apply notions of public policy to vitiate duties or obligations accepted by contract or otherwise, his Honour said, at 558:
"However, the place of public policy in the formulation of the common law has been recognised by the greatest judges from early times: see, for example, the opinion of Lord Mansfield in Jones v Randall [1774] 1 Cowp 37 at 39; 98 ER 954 at 955-6. In Re Morris (Deceased) (1943) 43 SR (NSW) 352 at 355-356, a decision which was affirmed by this Court in Lieberman v Morris (1944) 69 CLR 69, Jordan CJ said:
' ... the phrase "public policy" appears to mean the ideas which for the time being prevail in a community as to the conditions necessary to ensure its welfare; so that anything is treated as against public policy but is generally regarded as injurious to the public interest.'
The 'public policy' which a court is entitled to apply as a test of validity to a contract is in relation to some definite and governing principle which the community as a whole has already adopted either formally by law or tacitly by its general course of corporate life, and which the courts of the country can
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therefore recognise and enforce. The court is not a legislator: it cannot initiate the principle; it can only state or formulate it if it already exists': Wilkinson v Osborne (1915) 21 CLR 89 at 97. It is well settled that a contract is not enforceable if its enforcement would be opposed to public policy: Mogul Steamship & Co v McGregor, Gow & Co [1892] AC 25 at pp 39, 51. Public policy is not, however, fixed and stable. From generation to generation ideas change as to what is necessary or injurious, so that 'public policy is a variable thing. It must fluctuate with the circumstances of the time': Naylor, Benzon & Co v Krainische Industrie Gesellschaft [1918] 1 KB 331 at 342. New heads of public policy come into being, and old heads undergo modification."
These passages have even more recently been cited in R v Young (1999) 46 NSWLR 681 at 700 by Spigelman CJ.
29 Relying on these propositions, the appellant proceeds to submit that where a confidentiality provision is drafted broadly so as to extend to clothe material which would not conventionally be regarded as confidential, with the character of confidential material as a result of the agreement, thereby attracting an exemption under the Freedom of Information Act, it will defeat the very objects of the Act and should be regarded as void or unenforceable: Hughes Aircraft Systems International v Airservices Australia [1997] 146 ALR 1 at 89 and Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 37 – 38. However, with respect, I consider that these submissions are too broad and that the authorities cited in support of them do not extend so far. That point was expressly left open by Finn J in Hughes Aircraft Systems International v Airservices Australia (supra) at 89. When Brennan J addressed these issues in Esso Australia Resources Ltd v Plowman (supra) his Honour was addressing the right of the Minister, under the State Electricity Commission Act (1958) (Victoria) to obtain information supplied to SECV under an implied obligation of confidentiality and in a situation where the statutory authority was publicly accountable for its actions and expenditure so that a self-imposed obligation of confidentiality, whether arising contractually or otherwise, could not prevent the disclosure of such information to the Minister, and in certain respects, to the public.
30 The appellant further submits that a public body cannot enter into any contract inconsistent with the due discharge of its duties: Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of
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Australia (1977) 139 CLR 54 at 74 – 75 and City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146 per Ipp J at 157. One can readily accept these principles for the conditions and the situations in which they apply. However, they depend for their application on a consideration of what are the rights of access granted to an applicant under the Freedom of Information Act (WA) and whether the asserted claim of confidentiality has been misused or is a colourable device designed to acquire the status of exempt documents in situations where that is not otherwise available.
31 Doubtless, the appellant would also contend, for the principles described by Dr N C Seddon and Professor M P Ellinghaus in Cheshire and Fifoot's: Law of Contract, (8th Australian edition) at 18.25, where the learned authors have written:
"The government and its agencies cannot by contract fetter the exercise of executive action, or the performance of a statutory duty, or the exercise of a statutory power or discretion. Unless authorised by statute, a contract with a government or government authority or official is illegal to the extent to which it restricts the capacity to act in the public interest. So a promise by the executive government not to introduce, initiate or support particular legislation is invalid because it constitutes an attempt to fetter the exercise of the power to legislate in the public interest. The same principle applies to a promise by a public official or local authority to exercise a discretion in a particular way." (References omitted.)
32 In my view, the starting point, for dealing with these submissions, is to identify the nature of the right of access to documents held by agencies which the Freedom of Information Act of Western Australia establishes. Section 10(1) provides that the right of access is subject to, and in accordance with, the Act. While the legislation and the obvious policy of access to government documents is undoubtedly a guide to the interpretation of the legislation, it is equally plain that the Parliament expressly provided that certain documents or classes of documents were to be exempt from public access: compare Victorian Public Service Board v Wright (1986) 160 CLR 145 and Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; 108 ALR 163. Where, as in the present case, there is an express provision for certain documents which impose obligations of confidentiality to be exempt, there is no possibility of accepting an unqualified proposition that any means of imposing a confidential obligation on an agency not to disclose
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a document, is necessarily inconsistent with the purposes of the legislation and is, for that reason, unenforceable.
33 These authorities, however, support a proposition that where parties improperly assert, or attempt to create, an obligation of confidentiality in order to prevent disclosure of information or documents, not otherwise confidential, in order to avoid the provisions of the Act which, otherwise, would result in the documents or material being publicly accessible, that may well constitute an improper attempt to avoid public disclosure and to frustrate the public interest as expressed in this legislation. Such a situation would appear to be analogous to those contracts which, while not illegal as formed, become illegal as performed and hence unenforceable. If it is the intention of the parties to the contract to engage in conduct, or to achieve a purpose which is illegal or which has as its object the frustration or evasion of a statutory obligation such a contract, or the offending provision, will be unenforceable. But it will need to be established that the parties made the contract with the intention of engaging in unlawful conduct, or of avoiding or frustrating a statutory provision. This will require the person asserting that proposition to establish it by requisite proof because the normal inference should be that the parties intended to act lawfully: Meehan v Jones (1982) 149 CLR 571.
34 It is, of course, theoretically possible that the parties to these contractual provisions may have included the terms providing for confidentiality and non-disclosure of the material for improper purposes, without any genuine belief that the material was confidential, or in order to avoid public access which otherwise was potentially available by recourse to the Freedom of Information Act. But there is no evidence to demonstrate, or even to suggest, that such an intention existed or that there was any impropriety in the obligation of confidentiality which was imposed by the contractual provisions. That is not to say that this must necessarily, or always be so, rather it is the only conclusion which should be drawn in the absence of evidence to the contrary, where the onus of establishing some improper or collateral purpose rests, as it does in this case, on the appellant.
35 Consistently with the submissions which it has advanced, the appellant would no doubt contend that its inability to scrutinise the documents in respect of which exemption has been claimed hinders, or prevents, it from ascertaining the existence of any collateral purpose inconsistent with the claim for exemption. No doubt this lack of access may, in many cases, be a handicap but proof of the existence of a
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collateral or improper purpose, in inducing a document or transaction, otherwise regular on its face, will usually need to come from sources outside the document or documents under challenge. If the appellant seeks to prove that the obligation of confidentiality asserted by these contracts, was the product of some collateral or improper purpose then it would need to do so by adducing evidence to that effect. That has not been done or attempted in the present case and, consequently, I am satisfied that there is no basis upon which to challenge the enforceability of the contractual obligations of confidentiality imposed because of some imagined impermissible purpose or because of an intention to frustrate the application or implementation of the Freedom of Information Act.
36 Obviously, neither this appellant nor any person seeking access to documents of an agency under s 12 of the Act, would be in a position to investigate fully whether or not a confidentiality provision, such as the terms of the contracts relied upon in this case, were properly made, as opposed to being inserted for an improper, illegal or collateral purpose to assert a claim for exemption in order to defeat any application for access to the documents or related materials under the Act. Nevertheless, the obligation of the agency to "deal with the access application" requires it to consider and decide whether to give or refuse access to the requested documents (s 13(1)(a)(i)) and this obligation would seem to include, in appropriate circumstances, a duty to consider whether or not any grounds for exemption which might be asserted are well-founded.
37 It cannot be the case that if there are reasons to doubt the legitimacy of a ground for exemption which might arise from the terms of the documents themselves or otherwise, the agency dealing with the application for access need not consider and decide upon them. For example, if there is a document in respect of which an access application has been made which purports to be an agenda, minute or other record of the deliberations of Cabinet which may be exempt under Sch 1, cl 1(1)(a), the agency would obviously need to verify that the document was, indeed, what it appeared to be before such a claim for exemption could be upheld. Similarly, if there were a document which contained a confidentiality clause purporting to prohibit disclosure of its contents or other related documents of a kind which would give rise to an exemption under cl 8(1) of Sch 1 but there were some reason to suspect that the document was a forgery or otherwise not genuine, then that issue would need to be considered by the agency and decided in order to justify a claim that the material was exempt on that ground.
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38 For the same reasons, on any review of a decision made by an agency to refuse access on the grounds that the document or documents were exempt on specified grounds, the reviewing authority, whether on an internal review under s 43, an external review by the Information Commissioner under s 76, or, indeed, on an appeal to this Court under s 85, the reviewing body, or the appeal court, would need to consider and determine any issue which properly arose which questioned the genuineness of the grounds for the asserted exemption, even if that meant scrutinising facts or circumstances beyond the contents of the document or documents themselves. It is probable, that such an enquiry into the genuineness of the grounds for the asserted exemption will, in most cases, require little more than the decision-maker being satisfied that the records are authentic, have not been tampered with and have been produced and recorded in good faith by persons whose integrity is not doubted. However, if anything arises to cast doubts upon the usual presumptions of good faith and regularity relating to the preparation and content of such documents and, certainly, if there are any grounds to suspect the genuineness and authenticity of the records, then the decision-maker would be obliged to consider those matters and decide upon them as part of the role of determining the access or review application. This may, perhaps, entail the decision-maker calling for other documents which may throw light on the transaction which is the subject of the access application or interviewing personnel or making other necessary enquiries. This may be especially so in the case of external review by the Information Commissioner who has powers under s 72 to require a person to give information in writing or to produce a document or documents to the Commissioner or to attend and answer questions relevant to a complaint arising out of an access application (s 72(3)).
39 In other words, ascertaining the genuineness and bona fides of the grounds for claiming an exemption is part of the function of the person deciding upon or reviewing an application for access even though, in most cases, the task may be satisfied by inferences from the circumstances or the presumption of regularity. Nevertheless, in cases where there are reasons to question the legitimacy of the asserted claim for exemption, that will be the responsibility of the decision-maker. It is possible that this stage may not be reached until the review stage because, perhaps, only then will the applicant have been informed of the grounds for the refusal of access. There seems to be no reason why, in such a situation, the applicant, if possessed of any information or evidence which might cast doubt upon the genuineness of the ground for exemption relied upon for the refusal of access, should not put that to the reviewing officer,
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whether on an internal review or on an external review. In that case it will be for the reviewing officer to consider whether, in all the circumstances, material produced by the applicant, or any other material, requires a more extensive investigation and consideration of the grounds asserted for an exemption relied upon to refuse access.
40 In the present case there was nothing in the materials before the agency to raise an issue about the genuineness of the obligation of confidentiality imposed by the terms of the contractual documents, and there was certainly no evidence or submission made by the appellant, on the original access application or on the reviews to call that into question. While there has been nothing to suggest that the decision-makers, or the Information Commissioner, addressed the issue of whether or not the claim for confidentiality based on the documents was genuine, the omission to address that possibility in the circumstances is quite unremarkable.
41 At the hearing of this appeal the appellant, by counsel, raised as a possibility, the potential that the confidentiality obligations could have been inserted in the contract simply to prevent access being granted under the Act, but there was no evidence nor any reason to suspect that this had occurred in relation to these documents. While I have indicated that a responsibility for determining the genuineness of an asserted ground of exemption will arise on a decision-maker, whether an agency or review officer, there must be some reason to prompt this in the ordinary case in order to query the presumption of regularity which I have already mentioned. If there is anything in the particular application to raise doubts or concerns on these grounds then that will need to be addressed but, in the absence of such grounds, I consider that the responsibilities of the agency, any reviewing officer and the Information Commissioner are discharged by an examination of the materials which accepts them at face value.
Construction of contractual provisions for confidentiality
42 Previously, in these reasons, I have adverted to the prohibition of disclosure by this Court of any exempt matter in the course of hearing the appeal or in any reasons for decision. Because of this it is necessary to deal with the issues of contractual construction without quoting the terms of the contracts which provide for the confidentiality and which prohibit disclosure. Nevertheless, the evidence which I have received (which has not been disclosed to the appellant) shows that there was a confidentiality agreement between BHP Transport and Logistics Pty Ltd and the first
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respondent dated 11 December 2000 which provided that the first respondent would keep certain designated information confidential and that this obligation of confidentiality would continue after the stated purpose had been completed. The confidential information was described very broadly and included all negotiations relating to any proposed sale of the property and all associated correspondence or communications. The BHP company was undoubtedly in possession of much information which it considered to be confidential and which it was under no obligation to disclose to the first respondent. The Fremantle Port Authority, however, was interested in acquiring the subject land from BHP and in order to do so was obliged to enter into negotiations in the hope of reaching an agreement for sale. There is nothing to suggest that these negotiations were other than genuine commercial negotiations conducted at arm's length between a vendor and a purchaser each acting in its own interests and that, as a result of a mutual consensus, the negotiations resulted in an agreement for the exchange of information under which BHP insisted that the information disclosed be kept confidential.
43 Once it becomes apparent that that obligation of confidentiality arose from the terms of a contract agreed upon in the course of arm's length commercial negotiations, the materials and documents which, thereby, become the subjects of the obligation of confidence, by that very fact, satisfy the description of exempt material within cl 8(1) of the Schedule to the Act, in the absence of any evidence to establish impropriety, fraud or an intention to defeat the application of a statute.
44 The obligation of confidence thus arising in the present case does not depend on the characteristics of confidence recognised in equity but, results, from the express agreement of the parties to the contract. For that reason it is unnecessary to examine the situation in order to enquire for the presence of those grounds which are essential for the protection of a confidential obligation by an equitable remedy. Nor does the contract, as reached between the parties, directly or necessarily tend to affect the administration of justice, the course of criminal law, or to defeat a statute. All that can be said is that the contractual provision has the effect of bringing the information and the associated material within an accepted category of documents which are exempt from access under the provisions of the legislation. In its scope, the confidentiality provision is wide but I am satisfied that it extends to, and covers, all the documents and communications identified by the agency and by the Information Commissioner leading to the agreement eventually reached and evidenced by the sale of land contract.
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Sale of Land Contract
45 As already noted, I have examined the terms of the Sale of Land Contract and am satisfied that it contains a confidentiality clause requiring the parties to keep certain designated information confidential under a contractual obligation not to disclose that information in any way, and that this clause extends to the terms of the sale of land contract itself. While the obligation of confidentiality provides for disclosure in certain designated circumstances, none of those circumstances has arisen in the present case. Accordingly, I agree, with respect, with the decision of the Information Commissioner that by virtue of that clause the sale of land contract is an exempt document by virtue of cl 8(1) of the Schedule to the Act and that the appellant is not entitled to access to it under this legislation.
46 As a result, this appeal must be dismissed.