¹ There are of course many other reasons why an agency or Minister may refuse access in accordance with the request of an applicant; see Bayne, P, “Freedom of Information” in Galligan, D (ed), Administrative Law at para 63, in The Laws of Australia (1993)Google Scholar. In relation to the regimes for external review, see Bayne, P, “External Review of FOi decisions by the Information Commissioners” (1995) 3 A J Admin L 57 at 57-59Google Scholar.

² SirAnthony, Mason, “The Role of a Constitutional Court in a Federation: A Comparison oi the Australian and the United States Experience” (1986) 16 FL Rev 1 at 5Google Scholar.

³ Nicolson, D Cf, “Truth, Reason and Justice: Epistemology and Politics in Evidence Discourse” (1994) 57 M L R 726 at 727CrossRefGoogle Scholar.

⁴ See the discussion in Bayne, P, “Natural Justice, Anti-Discrimination Proceedings and thr Feminist Critique” (1995) 3 A J Admin L 5 at 17-19Google Scholar.

⁵ Bayne, P, Freedom of Information (1984) at 13-18 and 134-140Google Scholar.

⁶ (1993) 18 AAR 83 at 87.

⁷ Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd"< Commonwealth (1992) 177 CLR 106.

⁸ See generally, Bayne, P, “Freedom of Information and Democracy: A Return to the Basics? (1994) 1 Aust J Admin Law 107; and“Freedom of Information and Political Free Speech” it Campbell, T and Sadurski, W (eds), Freedom of Communication (1994) 199Google Scholar.

⁹ No less significant is the abundant reference to legislative history in Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606, but there was no reference in these judgments to the High Court decisions.

¹⁰ (1993) 18 AAR 83 at 87.

¹¹ (1993) 1 QAR 60.

¹² Re Veale and Town of Bassendean, Unreported, Information Commissioner of Western Australia, 1994, Decision Ref: D00494.

¹³ Unreported, Supreme Court of WA, 15 June 1995; see too the recognition by Lee J (sitting in the Full Court of the Federal Court) of the implied right as a consideration relevant to the exercise of a discretion in relation to the entry of a person into Australia in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at 97.

¹⁴ Unreported, Supreme Court of WA, 15 June 1995 at 39. This was said in relation to the privacy exemption in Schedule 1, cl 3 of the Freedom of Information Act 1992 (WA). Justice Owen also accepted the broad approach to the public interest taken by the Commissioner: “The Commissioner has taken into account the need for accountability among public officials. That is itself a manifestation of representative democracy” (ibid).

¹⁵ (1980) 147 CLR 39 per MasonJ.

¹⁶ (1996) 23 AAR 142 at 155-156.

¹⁷ (1988) 165 CLR 30 at 44-45.

¹⁸ (1995) 183 CLR 10.

¹⁹ Ibid at 31.

²⁰ Citing Finn, P, “Confidentiality and the 'Public Interest” (1984) ALJ 497 at 505Google Scholar.

²¹ (1995) 183 CLR 10 at 32. The issue for the Court was the extent of confidentiality which attached to documents produced or disclosed in the course of an arbitration proceeding. Two parties to the arbitration were public utilities of the Victorian government.

²² (1987) 10 NSWLR 86 at 191.

²³ (1993) 176 CLR 604.

²⁴ Ibid at 614-615.

²⁵ Unreported, AAT, 8 September 1995, at para 34.

²⁶ (1993) 176 CLR 604 at 615.

²⁷ I will not traverse the various ways in which the public interest in disclosure and non- disclosure of documents is dealt with in the exemption provisions of the F0I Acts; see P Bayne, above n 1 at para 72 ff.

²⁸ I will not explore this concept; see ibid at para 97. Suffice it to say that it has been equated in the AAT case-law to “thinking processes”, and on this basis the exemption has a very wide field of operation.

²⁹ (1983) 78 FLR 236 at 246; see too DPP v Smith [1991] 1 YR 63 at 75.

³⁰ Bayne, , Freedom of Information (1984) at 134-140Google Scholar.

³¹ (1985) 2 AAR 503.

³² For example, Re Dillon and Department of Treasury (1986) 10 ALD 366.

³³ Re Boehm and Department of Industry, Technology and Commerce (1985) 7 ALN N186 at N189.

³⁴ (1985) 3 AAR 169.

³⁵ Ibid at 176, citing from Re Murtagh and Commissioner of Taxation (1984) 1 AAR 419 at 428.

³⁶ Re Howard and the Treasurer of the Commonwealth of Australia (1985) 3 AAR 169 at 178 (emphasis added).

³⁷ Ibid.

³⁸ Ibid at 177.

³⁹ (1986) 11 ALN 266.

⁴⁰ Ibid at N270 (emphasis added).

⁴¹ Ibid.

⁴² Ibid at N271.

⁴³ Ibid.

⁴⁴ Ibid.

⁴⁵ See Re Kamminga and Australian National University (1992) 15 AAR 297 (discussed below).

⁴⁶ In Re Motor Trades Association of Australia and Trade Practices Commission (unreported, AAT, 30 October 1992) the AAT said that it was “self-evident” (at para 11) that the public interest required “that staff [of an agency] be able to synthesise and analyse information without opinions expressed and options canvassed being the subject of public scrutiny” (at para 10).

⁴⁷ (1984) 1 AAR 419 at 430 (emphasis added).

⁴⁸ (1984) 2 AAR 327 at 345.

⁴⁹ (1984) 1 AAR 419 at 431.

⁵⁰ (1985) 3 AAR 169 at 178.

⁵¹ (1996) 23 AAR 142 at 157.

⁵² See in particular Re Aldred and Department of Foreign Affairs and Trade (1990) 20 ALD 2641 and Re Macphee and Department of the Treasury (1989) 11 AAR 166 at 175 ff.

⁵³ Re Reith and Attorney General's Department (1986) 11 ALD 345.

⁵⁴ Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589 at 597.

⁵⁵ (1992) 15 AAR 297.

⁵⁶ Ibid at 300. See too her Honour's remarks in Re Cleary and Department of the Treasury (1993: 18 AAR 83 at 91, citing Searle v Public Interest Advocacy Centre (1992) 36 FCR 111 at 127.

⁵⁷ (1987) 7 AAR 355 at 359.

⁵⁸ (1988) 16 ALD 709.

⁵⁹ (1992) 15 AAR 297 at 301.

⁶⁰ Report on the Operation of the Freedom of Information Legislation (1987) at 165-169, esp at paras 11.6 to 11.13. This line of argument has been expressly negated bys 59A of the Freedom of Information Act 1989 (NSW), and bys 27(4) of the Freedom of Information Act 1991 (Tas).

⁶¹ Re Corr and Department of Prime Minister and Cabinet (1994) 35 ALD 141 at 147, adopting Re Kamminga. On the other hand, the Tribunal will recognise the desirability of preserving communications made in confidence to the government by some non-government body or person, in particular where an agency policy in that respect has been publicised: see Re Aldred and Department of the Treasury (1994) 35 ALD 685 at 690 (albeit that this was a conclusive certificate matter). In these cases, there is no inconsistency with the policy behind s 45(2).

⁶² (1994) 35 ALD 141 at 146-147.

⁶³ (1995) 38 ALD 773 at 776.

⁶⁴ Unreported, AAT, 26 June 1995 at para 46.

⁶⁵ Ibid at para 56.

⁶⁶ (1996) 23 AAR 142 at 157.

⁶⁷ Ibid.

⁶⁸ Ibid at 158.

⁶⁹ Ibid.

⁷⁰ Even if it were such a case, that should not be determinative, for a purpose of the Act is to enable persons to participate in decision-making.

⁷¹ Unreported, AAT, 8 August 1995 at para 49.

⁷² (1995) 38 ALD 773 at 775-776.

⁷³ See Re Walker and Commissioner of Taxation (No 9926, 14 December 1994).

⁷⁴ (1984) 1 AAR 419 at 431.

⁷⁵ Unreported, AAT, 8 August 1995 at para 36.

⁷⁶ (1993) 18 AAR 83 at 92.

⁷⁷ (1995) 38 ALD 773 at 776.

⁷⁸ (1994) 35 ALD 141 at 149.

⁷⁹ (1993) 176 CLR 604.

⁸⁰ (1994) 35 ALD 685 at 688-689.

⁸¹ Ibid at 690.

⁸² (1992) 15 AAR 297 at 300.

⁸³ These words have been considered by the Full Court of the Federal Court in Attorney General's Department v Cockcroft (1986) 10 FCR 180 at 190 and in Searle v Public Interes Advocacy Centre (1992) 36 FCR 111 at 127; see too Arnold v State of Queensland (1987) 6 AAl 463.

⁸⁴ (1987) 6 AAR 463 at 472.

⁸⁵ (1994) 20 AAR 25.

⁸⁶ Ibid at 31.

⁸⁷ Ibid.

⁸⁸ Ibid at 32, citing Re Reithmuller and Australian Federal Police (1985) 8 ALN N92 and Re Fryar and Australian Federal Police (1988) 17 ALD 25.

⁸⁹ (1994) 20 AAR 25 at 33.

⁹⁰ Unreported, AAT, 26 June 1995 at para 32.

⁹¹ (1994) 20 AAR 25 at 33.

⁹² Ibid at 32-33.

⁹³ (1994) 35 ALD 187.

⁹⁴ Ibid at 192.

⁹⁵ Ibid at 191.

⁹⁶ Ibid at 192.

⁹⁷ Ibid.

⁹⁸ Ibid at 192-193.

⁹⁹ (1994) 35 ALD 765. In terms of the definition of the word “State” ins 4(1), the provisions of s 33A apply equally to the Northern Territory.

¹⁰⁰ (1993) 35 ALD 717.

¹⁰¹ (1994) 35 ALD 765 at 776.

¹⁰² Ibid at 778.

¹⁰³ Ibid at 778-779.

¹⁰⁴ Ibid.

¹⁰⁵ Bayne, P, “The Concepts of 'Information Relating to Personal Affairs' and 'Personal Information” (1994) A J Admin L 226Google Scholar; see also Fraser, R, “Freedom of Information and Privacy: Some Recent Developments” (1994) FOI Rev 74 at 74-76Google Scholar.

¹⁰⁶ I will leave for later consideration the words “whose identity is apparent, or can reasonably be ascertained, from the information or opinion”.

¹⁰⁷ Commissioner of Police v Ombudsman [1985] 1 NZLR 385 at 402-403 per McMullin J.

¹⁰⁸ See Comcare v Mooi (1996) 23 AAR 160 at 165, and cases cited.

¹⁰⁹ I appreciate that this introduces all the difficulties of distinguishing between the private and public capacities of a person, and I am aware of the ideological role of th1 public/private distinction. Without such a distinction, however, it is difficult to see ho;,1. we can have a law of privacy. It might be noted that the distinction is perceived by som1 judges to be of critical importance in this context: see Commissioner of Police v District Cour of NSW (1993) 31 NSWLR 606 at 620 ff per Kirby P.

¹¹⁰ This approach can accommodate a view that it is not necessary that the information not b, known to the public: see Colakovski v Australian Telecommunications Commission (1991) 21 FCR 429 at 436 per Lockhart J. Another textual consideration is that the exemption in s 4: is still headed “Documents affecting personal privacy”.

¹¹¹ Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 at 620.

¹¹² For more detail, see Bayne, P, “The Concepts of 'Information Relating to Personal Affair and 'Personal Information” (1994) 1 A J Admin L 226Google Scholar.

¹¹³ Privacy (ALRC Report No 22, 1983) Vol 2 at 82. The only example given, however, was information “about the credit rating of a sole trader”, which the Report doubted might fa within a “personal affairs” definition but which should be regarded as “personal information” under a privacy law (ibid).

¹¹⁴ Ibid.

¹¹⁵ At para 7.

¹¹⁶ FOI Memorandum No 92 (1991) at 13.

¹¹⁷ The Federal Court has held that on the face of it such information is not within the scope of “information relating to personal affairs”: see P Bayne, above n 112.

¹¹⁸ USC para 552a(a)(4).

¹¹⁹ Of course, the approach taken to the concept of “information about an individual” may have been influenced by the non-exhaustive statement in this definition of what kinds of information fall within the definition of “record”, but this is not a matter which has been regarded as influential in the leading decisions. It is mentioned as a factor in American Federation of Government Employees v National Aeronautics and Space Administration 482 F Supp 281 at 282 (1980) (District Court).

¹²⁰ This court entertains a great many appeals concerning freedom of information matters, and its decisions are usually accorded great respect.

¹²¹ 40 F 3d 469 (1994).

¹²² Ibid at 470.

¹²³ Ibid.

¹²⁴ Ibid at 471.

¹²⁵ Referring to Quinn v Stone (1992) 978 F 2d 126. The court in Tobey may have read Quinn toe narrowly, for in Quinn the court held that the definition encompassed any informatior about an individual which was linked to that individual through an identifying particular as well as holding that the piece of information may itself be an identifying particular; set ibid at 133.

¹²⁶ Cases cited omitted.

¹²⁷ 40 F 3d 469 at 472 (1994).

¹²⁸ Ibid at 471. A similar view was taken in Unt v Aerospace Corporation 765 F 2d 1440 (1985) by the Court of Appeals for the Ninth Circuit and in Boyd v Secretary of the Navy 709 F 2d 684 (1983) by the Court of Appeals for the Eleventh Circuit. In the latter the document was a memorandum written by supervisors which contained information concerning the alleged failure of an employee “to follow the chain of command and his relationship with management”. It was held that this record did reflect some quality or characteristic of the employee: ibid at 686.

¹²⁹ [1985] 1 NZLR 578 per Jeffries J; [1988] 1 NZLR 385 (Court of Appeal).

¹³⁰ [1988] 1 NZLR 385 at 402-403; see also at 396 per Cooke P.

¹³¹ (1995) 38 ALD 457.

¹³² Ibid at 464.

¹³³ Ibid (emphasis added).

¹³⁴ (1994) 33 ALD 693.

¹³⁵ Ibid at 693.

¹³⁶ Ibid.

¹³⁷ Ibi.d at 6_93-694. Thi sam issue was also left open in Re McKinnon and Department of Immzgratwn and Ethnic Affairs (unreported, AAT, 12 December 1995) at para 38, where th opinion expressed was about some other person).

¹³⁸ Colakovski v Australian Telecommunications Corporation ((1991) 29 FCR 429 at 438 per Lockhart J and at 441 per Heerey J; Searle Australia v Public Interest Advocacy Centre (1992) 36 FCR 111 at 125; see also the earlier and influential Tribunal decision in Re Chandra and Department of Immigration and Ethnic Affairs (1984) 6 ALN 257 at 259.

¹³⁹ (1991) 29 FCR 429.

¹⁴⁰ Ibid at 438.

¹⁴¹ Ibid at 441 (emphasis added).

¹⁴² 489 US 749 (1989). The non-citation of this case may indicate that Heerey J did not wish to endorse the approach taken by the Supreme Court, but it may also indicate that he was unaware of the decision.

¹⁴³ 5 USC para 552(b)(6).

¹⁴⁴ There is thus an analogy to be drawn with the privacy exemption in the Australian FOi laws, although this is more apposite at the level of general approaches than at the level oi particular fact situations. The language “clearly unwarranted” in Exemption 6 may indicat a strong tilt in favour of disclosure which is not justifiable in relation to our legislation (set E J Sinrod, “Blocking Access to Government Information under the New Personal Privaey Rule” (1993) 24 Seton Hall L Rev 214 at 217-218).

¹⁴⁵ Ibid at 221.

¹⁴⁶ The decisions are reviewed in C P Beall, “The Exaltation of Privacy Doctrines over Publi< Information Law” (1996) 45 Duke Law J 1249.

¹⁴⁷ There is a second manner in which this reasoning has been taken to limit the manner ir which the public interest is evaluated. While on the one hand it is allowed that there may be several links in the causal chain of reasoning to whether there may be an interference with privacy (or, in other words, that there may be derivative use analysis to make such a finding), some courts hold, on the basis of the Supreme Court's reference to whether the disclosure would “directly” reveal the activities of government, that a derivative use analysis is not appropriate to an assessment of the public interest in disclosure. The Supreme Court has come close to endorsing this approach: see C P Beall, above n 146 at 1259-1260. In at least one Commonwealth AAT decision a derivative use analysis was approved, albeit not in relation to the privacy protection exemption: see Re Angel and Department of Arts, Heritage and Environment (1985) 9 ALD 113.

¹⁴⁸ C P Beall, above n 146 at 1258.

¹⁴⁹ F Cate, et al, “The Right to Privacy and the Public's Right to Know: The 'Central Purpose' of the Freedom of Information Act” (1994) 46 Administrative Law Rev 41.

¹⁵⁰ Dickinson, G, “The Supreme Court's Narrow Reading of the Public Interest Served by the Freedom of Information Act” (1990) 59 U of Cincinnati Law Rev 191; C P Beall, above n 146Google Scholar.

¹⁵¹ R Fraser, above n 105 at 77.

¹⁵² Ibid.

¹⁵³ Ibid.

¹⁵⁴ Although of course this is a major dimension of the public interest in disclosure.

¹⁵⁵ Australian Law Reform Commission and Administrative Review Council, Open government: a review of the Freedom of Information Act 1982 (1995).

¹⁵⁶ Ibid at para 4.7.

¹⁵⁷ Ibid at para 4.9.

¹⁵⁸ Ibid; the report quoted with approval a similar statement in Re Eccleston and Department oj Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at 73.

¹⁵⁹ Australian Law Reform Commission and Administrative Review Council, above n 15!5 al para 4.9.

¹⁶⁰ Ibid at para 10.10.

¹⁶¹ (1994) 33 ALD 683 at 695.

¹⁶² Ibid.

¹⁶³ See P Bayne, above n 1 at para 75ff.

¹⁶⁴ Unreported, AAT, 26 June 1995, at para 85.

¹⁶⁵ Ibid at para 84.

¹⁶⁶ As quoted in Re Cleary and Department of Treasury (1993) 18 AAR 83 at 87.