JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CORAM : TEMPLEMAN J

HEARD : 7 NOVEMBER 1996

DELIVERED : 22 NOVEMBER 1996

FILE NO/S : SJA 1111 of 1996

BETWEEN : MINISTRY FOR PLANNING
Appellant

AND

GORDON JAMES COLLINS
Respondent

Catchwords:

Administrative law - Freedom of information - Appeal against decision of
Information Commissioner - Access to documents - Government instrumentality
and private individual - Public interest - Factors taken into consideration.


(Page 2)
Representation:

Counsel:
Appellant : Ms J C Pritchard
Respondent : No appearance

Solicitors:
Appellant : State Crown Solicitor
Respondent : No appearance

Case(s) referred to in judgment(s):

Craig v The State of South Australia (1995) 184 CLR 163
Murtagh v Federal Commissioner of Taxation (1984) 54 ALR 313
Re Jones v Shire of Swan unreported; Information Commissioner WA; 9 May 1994
Re Little & Ors and Department of Natural Resources unreported; Information
Commissioner Qld; 22 March 1996
Re Waterford & Department of the Treasury (No 2) (1984) 5 ALD 588

Case(s) also cited:

Attorney General's Department and Australian Iron & Steel Pty Ltd v Cockcroft
(1986) 10 FCR 180
Hassell v Health Department of Western Australia, unreported; Information
Commissioner WA; 23 December 1994
Police Force of Western Australia v Kelly & Smith, unreported; SCt of WA
(Anderson J); Library No 960227; 30 April 1996
Re Howard and The Treasurer of The Commonwealth (1985) 3 AAR 169
Re Kaminga and Australian National University (1992) 26 ALD 585
Re Lianos and Secretary to Department of Social Security (1985) 7 ALD 475
Sankey v Whitlam (1978) 142 CLR 3
Slater v State Housing Commission, unreported; Information Commissioner WA; 22
February 1996

Library Number : 960668


(Page 3)
TEMPLEMAN J:

This is an appeal pursuant to s85(1) of the Freedom of Information Act

1992 ("the Act"). The appellant is the Ministry for Planning. It appeals

against a decision of the Information Commissioner ("the Commissioner") who

ordered that certain of the appellant's documents be produced to the

respondent, Mr Gordon James Collins.

The material provided to me consists of the Commissioner's reasons for

decision dated 5 July 1996. In addition, and at my request, the disputed

documents were provided to me so that I might consider them to the extent

necessary to enable me to understand fully the Commissioner's reasons.

As appears from those reasons, the respondent is the executor of the

estate of the late Elsie Gladys Morgan. Included in the estate is land at

Lots 616 and 617 Hamilton Street, Ashfield, of which the deceased was the

registered proprietor.

I infer that the present dispute has arisen out of negotiations between

the respondent and the Western Australian Planning Commission ("WAPC")

concerning the possible sale of the land by the respondent to the WAPC.

The relationship between the WAPC and the appellant is summarised in the

Commissioner's reasons. Put shortly, the WAPC and the appellant are both

State agencies responsible for developing, reviewing and implementing the land

use planning system in Western Australia. The WAPC was established by the

Western Australian Planning Commission Act 1985. In carrying out its

functions, it receives technical advice and assistance from the appellant,

which is in possession of the disputed documents.

As the Commissioner noted, the WAPC has the power to acquire land in

accordance with various Acts which it administers. Although it has power to

acquire land compulsorily in certain circumstances, those circumstances have

not arisen in the present case. Nor, as I understand it, is there any


(Page 4)
suggestion that the land will be acquired compulsorily if agreement cannot be

reached between the parties. At present, therefore, the WAPC and the

respondent are dealing at arm's length although, of course, in so acting, the

WAPC is exercising its statutory powers.

As I understand the position, negotiations between the WAPC and the respondent

broke down when the WAPC declined to disclose to the respondent certain

valuations and related documents which it had obtained in relation to the

subject land. Following internal reviews by the appellant of the decision to

withhold access to the documents, the respondent, through its solicitors,

lodged a complaint with the Commissioner on 13 March 1996. There were then

discussions between the Commissioner's officers and the appellant : and the

Commissioner expressed a preliminary view. This resulted in the ambit of the

dispute being narrowed marginally. However, some 15 documents remained in

dispute. It was in relation to those documents that the Commissioner then gave

her decision.

The Disputed Documents

There having been further consideration on the part of the appellant,

there are now 12 documents in dispute. They were described by the

Commissioner as follows:

"Document Folio Description

1 24-28 Valuation report dated 6/2/95.

2 38-41 Valuation report dated 14/2/95.

3 45 Handwritten memorandum of an officer of
the agency, dated 20/2/95.

4 48-52 Copy of Document 1.

5 61-64 Copy of document 2.

6 81-85 Valuation report dated 3/4/95.

7 88 Handwritten memorandum of an officer of
the agency, dated 11/4/95.


(Page 5)
8 89 Handwritten memorandum of an officer of
the agency, dated 12/4/95.

9 93-95 Report dated 19/4/95 from Acting Property
Managers to WAPC.

10 99-101 Copy of document 9 with date stamp and
Committee stamp.

11 102 Extract from the minutes of the meeting of
the Executive, Finance and Property
Committee of WAPC held on 26/4/95.

15 130 Extract from the minutes of the meeting of
Executive, Finance and Property Committee
of WAPC, held on 5/12/95."

The Commissioner's Decision

In her decision, the Commissioner referred to the fact that the

appellant claimed the disputed documents to be exempt from production under

cl 6(1) of Schedule 1 to the Act. Clause 6 provides as follows:

"6. Deliberate processes

Exemptions

(1) Matter is exempt matter if its disclosure -

(a) would reveal -

(i) any opinion, advice or recommendation that has
been obtained, prepared or recorded; or

(ii) any consultation or deliberation that has taken
place,

in the course of, or for the purpose of, the
deliberate processes of the Government, a Minister or
an agency;

and

(b) would, on balance, be contrary to the public
interest.


(Page 6)
Limits on exemptions

(2) Matter that appears in an internal manual of an agency
is not exempt matter under subclause (1).

(3) Matter that is merely factual or statistical is not
exempt matter under subclause (1).

(4) Matter is not exempt matter under subclause (1) if at
least 10 years have passed since the matter came into
existence."

The Commissioner went on to say that to establish an exemption under

cl 6, the appellant was required to satisfy the requirements of both paras (a)

and (b) of subcl (1). If the disputed documents contain matters of the kind

described in para (a), it is then necessary to consider whether the disclosure

of that matter would, on balance, be contrary to the public interest. The

Commissioner went on to point out that the exemption is subject in any event

to the limitations set out in subcls 6(2), (3) and (4).

The Commissioner then reviewed a number of decisions about the meaning

and purpose of the exemption contained in cl 6(1). Those decisions included

Re Waterford & Department of the Treasury (No 2) (1984) 5 ALD 588. The

Commissioner said, and I respectfully agree, that the comments of the

Commonwealth Administrative Appeals Tribunal ("the Tribunal") in relation to

the Commonwealth provision which is equivalent to the Act, assist in

determining the scope of the exemption in cl 6(1). The Tribunal said:

"58. As a matter of ordinary English the expression 'deliberative
processes' appears to us to be wide enough to include any of the
processes of deliberation or consideration involved in the functions
of an agency. "Deliberation" means "the action of deliberating:
careful consideration with a view to decision": see the Shorter
Oxford English Dictionary. The action of deliberating, in common
understanding, involves the weighing up or evaluation of the
competing arguments or considerations that may have a bearing upon
one's course of action. In short, the deliberative processes
involved in the functions of an agency are its thinking


(Page 7)
processes - the processes of reflection, for example, upon the
wisdom and expediency of a proposal, a particular decision or a
course of action. Deliberations on policy matters undoubtedly come
within this broad description. Only to the extent that a document
may disclose matter in the nature of or relating to deliberative
processes does s.36(1)(a) come into play...

59. It by no means follows, therefore, that every document on a
departmental file will fall into this category...Furthermore,
however imprecise the dividing line may first appear in some cases,
documents disclosing deliberative processes must, in our view, be
distinguished from documents dealing with the purely procedural or
administrative processes involved in the functions of the agency...

60. It is documents containing opinion, advice, recommendations
etc. relating to the internal processes of deliberation that are
potentially shielded from disclosure...Out of that broad class of
documents, exemption under s.36 only attaches to those documents the
disclosure of which is 'contrary to the public interest'..."

The Commissioner went on to say:

"When considering the application of the exemption in cl 6, I
consider it useful, if not necessary, to identify the deliberative
processes of the agency to which the particular documents are
claimed to relate in order to decide whether they are deliberative
process documents in the sense described in Re Waterford, and to
decide whether disclosure of such documents would, on balance, be
contrary to the public interest."

Then, following a review of the relationship between the respondent and

the WAPC, the Commissioner expressed the view that the disputed documents

related to quite distinct, deliberative processes, namely:

1. the setting of a price at which an offer to purchase the land was

initially made by the agency; and

2. determining which option to pursue when no agreement could be reached

between the respondent and the appellant on the purchase price of the

land in question.


(Page 8)
The Commissioner went on to hold that documents 1-11 inclusive related

to the first deliberative process, and that they were clearly with cl 6(1)(a).

The Commissioner then considered whether disclosure of those documents

would, on balance, be contrary to the public interest. In considering that

question, the Commissioner dealt with competing submissions which she had

received.

The Commissioner recognised the public interest in the appellant and the

WAPC having access to a wide range of advice and opinions in order that those

agencies might carry out their functions and make informed planning decisions

on matters that benefit the community as a whole. The Commissioner said:

"I consider that public interest is served by preserving the
integrity of the deliberative processes of both [the appellant] and
the WAPC, but only to the extent that the disclosure of documents
relied upon by either [the appellant] or the WAPC during
deliberations would adversely affect those processes such that it
would, on balance, be contrary to the public interest to do so, or
that disclosure would, for some other reason, be demonstrably
contrary to the public interest."

The Commissioner also recognised a public interest in the respondent

being able to exercise his rights of access under the Act. The Commissioner

referred to the respondent's assertion that release of the valuation documents

would enable him to understand the position adopted by the WAPC with respect

to the acquisition of the land. The respondent had submitted that disclosure

might expedite a settlement between the parties and might avoid the need for

litigation. Given that the parties are negotiating on a voluntary basis and

that no compulsory acquisition was envisaged, a reference to litigation seems

somewhat out of place. It is explained by the fact that the appellant had

offered to have the matter resolved by arbitration. However, the respondent


(Page 9)
told the Commissioner that he was not prepared to proceed to arbitration

without knowing the basis upon which the purchase price of the land had been

set by the appellant. The respondent stated that:

"arbitration would not be an option until there were some common
ground between the parties."

The Commissioner went on to refer to the appellant's contention that the

breadth of its responsibilities to the general community for the efficient

management of public moneys outweighed the private interests of the

respondent. The appellant contended that it would be contrary to the public

interest to disclose the disputed documents because:

"... it is the experience of the [appellant] that property
negotiations become extremely protracted when individuals are
provided with information about the [appellant's] reasoning and
assumptions on property transactions and land values."

The Commissioner went on:

"27. The final submission of the agency referred to "long
established experience" of this nature, and asserted that its view
is based on experience. However, the agency provided no specific
examples and, other than those general references to its
experiences, the agency did not provide any material to support its
claims about the adverse effects of disclosure of documents of the
type in dispute. In the absence of supporting material, I have not
attached much weight to the agency's assertions. The agency did
inform me that it had taken into account my decision in Re Jones and
Shire of Swan (9 May 1994, unreported), but it considered that the
circumstances of that matter were sufficiently different to those in
this instance not to be relevant [In Re Jones I decided that a
valuation report was not exempt under clause 6(1) because, inter
alia, negotiations between the parties had broken down]. The agency
maintains that, until its dealings with the complainant are
finalised, no documents should be disclosed. However, the agency
acknowledges that once negotiations have been finalised, a decision
on access may be different."


(Page 10)
The agency referred to in the passage set out above is, of course, the

appellant.

The Commissioner then went on to set out her conclusions, as follows:

"29. Taking into account the power of the WAPC with respect to the
acquisition of private property for planning purposes, I am of the
view, as I was in Re Jones, at paragraph 25 of that decision, that
it is not in the public interest for negotiations of this nature to
be conducted in "mutual half-light": see also Murtagh v Commissioner
of Taxation (1984) 54 ALR 313, at 329. In my view, the agency's
submission that a distinction should be made between the
complainant's private interest and "...the agency's responsibility
to the broader public interest of the general community...for
efficient management of public monies" fails to recognise any public
interest in the agency dealing fairly with a private citizen and in
being seen to deal fairly in transactions with all citizens. Given
the agency's extraordinary powers and resources in respect of the
acquisition of property, powers which are not available to private
organisations or citizens, I certainly recognise such a public
interest.

30. I am reinforced in that view by a decision of the Queensland
Information Commissioner that concerned access to similar documents.
In Re Little and Others and Department of Natural Resources
(Information Commissioner Qld, 22 March 1996, unreported) the access
applicants sought access to valuation reports of the department.
Although he was dealing with the compulsory acquisition of private
property, I endorse the following comments of the Information
Commissioner in Re Little which I consider to be equally apposite to
the matter before me. He said, at paragraph 48:

"I do not accept the respondent's argument...to the effect
that, as agent for the wider public interest in attempting to
acquire property for public purposes, the greater public
interest is served by maximising its negotiating advantage
against a property-owner who is trying to "maximise his
benefit". It would, in my opinion, be short-sighted and
erroneous to suggest that the public interest in saving public
money would justify a government agency in


(Page 11)
seeking to negotiate the acquisition of a citizen's property
on less than just terms. The greater public interest lies in
preserving the principle of public acquisition of private
property on just terms. Any citizen may be affected by a
government proposal to acquire private property for public
purposes. The interest in fair treatment of citizens by
government in the course of acquisition processes is an
interest which is common to all citizens and for their
benefit."

31. Although the matter before me does not involve the compulsory
acquisition of private property, I agree that disclosure of
valuation reports would give the complainant the opportunity to
subject the agency's offer to a detailed critical analysis by
informing him of the assumptions, evidence and methodology upon
which the purchase price offered by the agency was based. He would
then be in a position to satisfy himself that the valuations and, in
turn, the offer, are reasonably based or not. In that way he may be
either reassured that he is being fairly dealt with by the agency or
if, in his view, the basis of the valuations is not sound, he will
be in a position to point out his concerns to the agency. To gain
access to such information only after the completion of the
negotiations, as suggested by the agency, would not be just and
would not assist to open the process to public scrutiny in
accordance with the objects of the FOI Act. Therefore, in balancing
the competing interests, I am not persuaded that disclosure of
Documents 1-11 would be contrary to the public interest, and I
consider the balance lies in the disclosure of those documents to
the complainant."

It is to be noted that, thus far, the Commissioner had dealt with

documents 1-11. She went on to deal with the remaining documents and other

matters. I shall return to the remaining matters in due course. However, it

will be convenient now to turn to the appeal in relation to the first part of

the Commissioner's reasons.

The Appeal

The appeal was instituted by notice of motion of appeal dated 26 July

1996. At the hearing, the appellant appeared by counsel. There was no


(Page 12)
appearance by the respondent. He had instructed solicitors to act for him in

relation to the complaint to the Commissioner. However, before the hearing of

the appeal, those solicitors telephoned the court to say that they would not

be appearing because their client was without funds.

It is accepted by the appellant that, in order to succeed on the appeal,

it must identify an error of law on the part of the Commissioner. The

appellant contends, in ground 1 of its notice of appeal, that:

"The learned Commissioner erred in law in that she misinterpreted
the meaning of, and misapplied, the public interest test in relation
to documents 1-11 ..."

There are then set out nine matters relied on in support of the

substantive grounds.

Before dealing with each of those grounds, I note that the Act does not

itself contain any "public interest test". There is no definition of the term

"public interest" in the glossary to the Act. In cases such as the present,

the Commissioner is required to decide whether access should be given to

documents which have been withheld by the relevant agency. In so doing, the

Commissioner will be required frequently, as she has been in this case, to

decide whether the matter is exempt because it falls within one of the

categories of Schedule 1 to the Act. Many of the exemptions set out in

Schedule 1 are limited by provisions in the following terms:

"Matter is not exempt matter under subclause ... if its disclosure
would, on balance, be in the public interest."

In relation to those provisions, s102(3) of the Act imposes on the "access

applicant" the onus of establishing that disclosure would, on balance, be in

the public interest. However, cl 6(1)(b) provides that matter is exempt if

its disclosure would, on balance, be contrary to the public interest. That

being so, it seems to me that the onus lies with the appellant. Hence the

Commissioner's


(Page 13)
statement, to which I referred above, that the appellant is required to

satisfy the requirements of both paras (a) and (b) of cl 6(1).

In reaching a decision on the public interest question, the Commissioner

must make a judgment. And unless it is shown that the Commissioner has erred

in law in so doing, that judgment will stand even though the court hearing an

appeal from the Commissioner pursuant to s85(1) of the Act might have reached

a different conclusion.

In the present case, the appellant submits that a question of law within

s85(1) of the Act will arise if the Commissioner has made a mistake of law in

the following circumstances:

"(a) Where there is no evidence to support a finding even though
the finding is one of fact.

(b) Where the Commissioner in the course of making her
adjudication misstates a rule of law or betrays a wrongful
interpretation of the Act.

(c) Where the facts have been found or have been admitted and the
Commissioner makes an error in applying a statutory
description or formula to such set of facts; or

(d) Where the Commissioner adverts to irrelevant considerations or
disregards relevant considerations."

(Sykes, Lanham and Tracey, General Principles of Administrative Law,
3rd ed., para 2564.)

The appellant then puts the submission on an alternative basis, taken

from the recent case of Craig v The State of South Australia (1995) 184 CLR

163, 179:

"In alternative language, if the Commissioner falls into an error of
law which causes her to identify a wrong issue, to ask herself a
wrong question, to ignore relevant material, to rely on irrelevant
material, or, at least in some circumstances, to make an erroneous
finding or to reach a mistaken conclusion, and her exercise or


(Page 14)
purported exercise of power is thereby affected, she has exceeded
her authority or power."

Applying those principles to the present case, I understand the gravamen

of the appellant's submission to be that, in reaching her decision, the

Commissioner took into account irrelevant considerations and failed to take

into account, or give sufficient weight to, relevant considerations.

With those matters in mind, I turn to the particular matters relied on

by the appellant in its grounds of appeal.

It is said first that the Commissioner erred in limiting the public

interest in the nondisclosure of the documents (to the extent that the

Commissioner found there was such a public interest) by reference to whether

the deliberative processes of the appellant and the WAPC would be affected

adversely by disclosure of the documents.

This, I think, is a reference to that passage in the Commissioner's

reasons in which she said:

"I consider that public interest is served by preserving the
integrity of the deliberative processes of both the [appellant] and
the WAPC, but only to the extent that the disclosure of documents
relied upon by either the [appellant] or the WAPC during
deliberations would adversely affect those processes such that it
would, on balance, be contrary to the public interest to do so ..."

However, the Commissioner went on to say:

"... or that disclosure would, for some other reason, be
demonstrably contrary to the public interest."

The last part of the quotation demonstrates that the Commissioner did

not limit the public interest in the way complained of. I do not therefore

accept that the complaint is justified.

The appellant then contends that the Commissioner gave undue weight to

the private interests of the respondent in obtaining access to the documents.


(Page 15)
The answer to this contention is, I think, to be found in para 29 of the

Commissioner's reasons, which is set out above.

Although undoubtedly the respondent has a private interest in obtaining

access to the documents, the Commissioner regarded it as being in the public

interest that the appellant should deal fairly with a private citizen and be

seen to deal fairly in transactions with all citizens. That being so, I do

not think it right to say that the Commissioner gave undue weight to the

respondent's private interests.

The next ground of appeal is that the Commissioner failed to take into

account, or to give sufficient weight to, the public interest in the

appellant's efficient management of public moneys, in circumstances where the

appellant and the respondent were negotiating a voluntary commercial

transaction.

I have set out above para 30 of the Commissioner's reasons, in which she

referred to Re Little & Ors and Department of Natural Resources, unreported;

Information Commissioner Qld; 22 March 1996.

That case was concerned with the compulsory acquisition of private

property, a fact recognised by the Commissioner. However, she considered it

to be applicable equally to the present dispute. I understand the

Commissioner to mean that there is a public interest in ensuring that

government agencies deal fairly with citizens in the course of acquisition

processes, whether they be voluntary or compulsory. It could hardly be said

that government agencies must deal fairly when engaged in compulsory

acquisition, but that there is no such obligation when negotiating for the

voluntary acquisition of land. I see no inconsistency between what the

appellant describes as "the efficient management of public moneys" and acting

fairly in its dealings with private citizens.

Having regard to the way in which the Commissioner dealt with this

aspect of the matter, I do not think it right to say that she failed to take

into


(Page 16)
account the public interest in the appellant's efficient management of public

moneys. The Commissioner clearly did take that matter into account. She

accorded it less weight than the appellant would have wished. However, that

was a matter for the Commissioner's judgment and does not, in my view, amount

to an error of law.

These considerations apply equally, in my view, to the next ground of

appeal. It is contended that the Commissioner took into account an irrelevant

consideration: namely, that in circumstances of the compulsory acquisition of

land, there may be a public interest in the agency dealing fairly with a

private citizen and being seen to deal fairly in transactions with all

citizens.

As I have noted above, I understand the Commissioner to have extracted

from the decision in Re Little a principle which is applicable in all

circumstances in which government agencies seek to acquire land from private

citizens.

It is then said by the appellant that the Commissioner took into account

an irrelevant consideration, namely, the powers and resources of the appellant

in respect of the compulsory acquisition of land.

I refer again to para 29 of the Commissioner's reasons, in which she

referred to the power of the WAPC with respect to the acquisition of private

property for planning purposes and to the fact that the appellant had

extraordinary powers and resources in respect of the acquisition of property,

powers which are not available to private organisations or citizens. That was

the context in which the Commissioner dealt with Re Little, a compulsory

acquisition case. However, I do not think the Commissioner was referring in

either of those instances to powers of compulsory acquisition. The

Commissioner was well aware that this is not a compulsory acquisition case.

Neither was Re Jones v Shire of Swan, unreported; Information


(Page 17)
Commissioner WA; 9 May 1994, in which the Commissioner took a similar view.

I therefore consider that, in referring to the WAPC's powers and

resources, the Commissioner had in mind only the fact that the WAPC is a

government agency. In my view, this ground has not been made out.

The next ground is that the Commissioner failed to take into account, or

to give sufficient weight to, a relevant consideration, namely, the public

interest in maintaining the integrity of the deliberative processes of the

appellant and the WAPC until such time as the appellant and the respondent had

concluded their dealings in relation to the sale of the land.

I have noted above that the Commissioner made express reference to the

public interest in preserving the integrity of the deliberative processes of

both the appellant and the WAPC. The Commissioner referred also to the

appellant's contention that the integrity of the deliberative process ought to

be maintained, at least until its dealings with the respondent had been

finalised. In my view, therefore, the appellant is not justified in asserting

that the Commissioner failed to take these matters into account. The weight

given to these matters by the Commissioner is, it seems to me, a matter for

her judgment.

I note the appellant's acknowledgment referred to in the Commissioner's

reasons, that once negotiations had been finalised, a decision on access might

be different. The situation would then be analogous to that which arose in Re

Jones v Shire of Swan where the Commissioner ordered that access be given to

valuations obtained by the Shire of Swan after negotiations between the

parties had broken down. The appellant apparently accepts the correctness of

that decision.

In the present case the appellant contends that negotiations have not

come to an end. As counsel for the appellant put it, negotiations had only


(Page 18)
"stalled". However, that seems to me to be a somewhat unrealistic attitude. I

think it to be implicit in the appellant's offer to go to arbitration that

negotiations have come to an end.

In these circumstances, I do not think there is any substance to this

ground.

It is then said by the appellant that the Commissioner gave undue weight

to the consideration that the parties' negotiations in relation to the sale of

the land would be conducted in "mutual half-light", in circumstances where the

appellant was not entitled to access to the respondent's documents.

The expression "mutual half-light" is taken from Murtagh v Federal

Commissioner of Taxation (1984) 54 ALR 313, 329. That case is quite different

from the present, being concerned with an application made under the

Commonwealth Freedom of Information Act 1982 by a taxpayer who sought from the

Commissioner of Taxation access to a number of documents relating to her

income tax returns. The Administrative Appeals Tribunal said (at 329):

" We do not accept the contention put forward that it is in the
interests of the public that negotiations between taxpayers and the
Australian Taxation Office should proceed on inadequate knowledge.
We abhor the contention that "mutual half-light" should be "the
necessary pre-condition of negotiation and settlement". Objections
to income tax assessments are not lodged only by tax evaders and tax
avoiders. There is no suggestion of any such circumstance in the
present case. We think it highly undesirable that, in a case such
as the present, both the Australian Taxation Office and the taxpayer
should not work together to ascertain the relevant facts and to
arrive at a proper conclusion having regard to the whole of the
relevant facts. As we have already said, we think that there are
many relevant facts which are still in the sole possession of the
applicant and Mr X and that it would be useful if those facts were
to be disclosed to the Australian Taxation Office. The process of
ascertaining all relevant facts is likely to be enhanced if the
taxpayer knows what are the facts which the Australian Taxation
Office has taken into


(Page 19)
account. In so far as those facts are not the full facts of the
matter, the taxpayer may supplement them with further information."

It seems to me that the principle which that passage illustrates is that

it is desirable for a government instrumentality and a private individual to

work together "to ascertain the relevant facts and arrive at a proper

conclusion having regard to the whole of the relevant facts". It is to be

noted that in Murtagh's case, the Tribunal was aware that there was a one-

sided right to access under the relevant legislation. However, the Tribunal

expressed the view that the process of ascertaining all relevant facts was

likely to be enhanced by that process because the applicant might thereby be

encouraged to disclose information in her possession.

In these circumstances, I do not think it right to say that the

Commissioner in the present case gave undue weight to the consideration that

if access were not granted, negotiations would be conducted in "mutual

half-light".

Finally, the appellant contends that the Commissioner failed to give

any, or sufficient, weight to its submissions in relation to the public

interest on the basis that the Commissioner concluded that the appellant was

required to provide evidence in support of its submissions and that it had

failed to do so.

This ground arises out of the appellant's contention before the

Commissioner that it was contrary to the public interest to disclose the

disputed documents because of the appellant's experience that property

negotiations become extremely protracted when individuals are provided with

information about the appellant's reasoning and assumptions on property

transactions and land values. The appellant claimed that its experience

related to individual dealings and to successive dealings with different

individuals who had interests in properties within a broadly defined region or

area.


(Page 20)
The Commissioner said (and I set out again part of para 27 of her

reasons):

"The final submissions of the [appellant] referred to "long
established experience" of this nature, and asserted that its view
is based on experience. However, the [appellant] provided no
specific examples and, other than those general references to its
experiences, the agency did not provide any material to support its
claims about the adverse effects of disclosure of documents of the
type in dispute. In the absence of supporting material, I have not
attached much weight to the [appellant's] assertions."

I do not read the Commissioner's reference to the fact that the

appellant had not provided material to support its claims as reflecting a

conclusion that the appellant was required to provide evidence. I understand

the Commissioner to be saying only that in the absence of supporting material,

she did not attach much weight to the appellant's assertions. The appellant

submitted that it would be difficult to envisage what other material it could

have put before the Commissioner to support its submissions, when it was

addressing a hypothetical situation. However, I do not think the appellant

was referring to a hypothetical situation. Its submission was based on "long

established experience" : matters which, in my view, ought to have been

capable of elucidation if they were to be relied on.

The next ground of appeal deals with document 15. This is described as

an extract from the minutes of the meeting of the Executive, Finance and

Property Committee of the WAPC, held on 5 December 1995. Only part of that

document, para 21.6.4, is relevant to this matter. The Commissioner said of

it:

"There is no evidence before me to suggest that the matter contained
in Document 15 directly relates to the deliberations concerning the
purchase price or the options available to the [appellant] in the
continued negotiations with the [respondent] and


(Page 21)
I do not consider that the document itself is a true deliberative
process document in the sense described in Re Waterford."

The Commissioner went on to say that the relevant part of document 15

was not exempt for any reason as it was merely a factual record of a

resolution of a meeting of the WAPC.

It was submitted by counsel for the appellant that document 15, being an

extract from the minutes of a meeting, must necessarily reflect a decision,

and that this must itself involve deliberations. I was referred to s36 of the

Commonwealth freedom of information legislation which expressly excludes from

the category of exempt documents:

"the record of..........a final decision given in the exercise of a
power or of an adjudicative function."

It was submitted that as there is no such provision in the Act, records

of this kind (which document 15 is said to be) must be exempt.

I do not think it permissible to use one piece of legislation to

construe another. In any event, as appears from the extract from Re Waterford

which I have set out above, it is to be borne in mind that documents

disclosing deliberative processes should be distinguished from documents

dealing with purely procedural or administrative processes involved in the

functions of the agency.

Having considered document 15, I respectfully agree with the

Commissioner's view as set out above. I think it is described accurately as a

factual record of a resolution, and I therefore consider the Commissioner was

correct in finding that it was not an exempt document.

It should be noted that ground 2 of the appeal was substantially

abandoned at the hearing. I allowed amendment which limited the ground to the

application of cl 6(1)(a) to document 15.

Having determined the public interest question in favour of the

respondent, the Commissioner went on to hold that "in any event" the disputed


(Page 22)
documents contain a considerable amount of merely factual information to which

the limitation in cl 6(3) applies. The Commissioner said that such

information could be severed from other more sensitive information and could

not be exempt under cl 6(1).

The appellant contends that having come to the view that much of the

matter contained in the documents was merely factual, the Commissioner ought

to have been more specific than she was in identifying the material.

It is submitted by the appellant that if the Commissioner's decision on

the public interest point is set aside, the matter should be remitted to her

so that she could, in effect, edit the documents so as to delete the matter

which does not fall within para (6)(3).

The Commissioner said:

"The factual information consists of information concerning the land
in question, including title particulars, encumbrances,
improvements, zoning details and a history of the property. Some of
that information is on the public record and cannot, therefore, be
exempt matter, in my view. Other factual information in the
documents merely relates the history of the agency's dealings with
the complainant."

Although this question does not now arise, it seems to me that the

guidance afforded by that passage is sufficient to enable the appellant to

carry out any editing which might be necessary.

The final ground of appeal asserts that the Commissioner failed to find

that each of the documents was exempt pursuant to cl 10(3) or 10(4) of

Schedule 1 to the Act. These clauses provide as follows:

"10. (3) Matter is exempt matter if its disclosure -
-
-

(a) would reveal information (other than trade secrets) that has
a commercial value to an agency; and

(b) could reasonably be expected to destroy or diminish that
commercial value.


(Page 23)
(4) Matter is exempt matter if its disclosure -
-
-

(a) would reveal information (other than trade secrets or
information referred to in subclause (3)) concerning the
commercial affairs of an agency; and

(b) could reasonably be expected to have an adverse effect on
those affairs."

The appellant submits that the Commissioner is under a duty pursuant to

s74(1)(a) of the Act to avoid the disclosure of exempt matter and that she was

accordingly under a duty to consider whether either of cls 10(3) or (4) was

applicable. The appellant points out that the Commissioner made no reference

in her reasons to those provisions.

In my opinion, s74 does not have the effect for which the appellant

contends. I think the section is intended to ensure that the Commissioner

does not disclose exempt matter, or the existence of exempt matter, when

dealing with a complaint.

As I understand it, the Commissioner made no reference to cls 10(3) or

(4) because no submissions were made to her which required her to do so. It

was submitted to me that as a matter of inference the Commissioner should have

concluded that the disclosure of the documents could reasonably be expected to

destroy or diminish their commercial value. This, it is said, is because the

appellant has no right of access to information which forms the basis for the

respondent's negotiating position : and disclosure would therefore put the

appellant at a disadvantage.

I disagree. While considerations of that kind may be appropriate in

some cases, it seems to me that in the present case disclosure of the disputed

documents is more likely to enable their commercial value to be realised. If

the purpose of obtaining valuations is to enable the WAPC to determine a price

at which it is reasonable for the land to be acquired, that purpose will be

frustrated by their non-disclosure. The respondent has made it plain that he


(Page 24)
will not proceed. In these circumstances, I think the disclosure of the

documents would have a beneficial effect on the commercial affairs of the

WAPC.

For these reasons, I do not think it appropriate to remit the matter to

the Commissioner for further consideration.

In summary, I am not persuaded that the Commissioner made any error of

law. In the exercise of the power vested in me by s87(1)(a) of the Act, I

confirm the Commissioner's decision.