Case: Harris v Australian Broadcasting Corporation and Ors (1983) 50 ALR 551
Outcome: distinguished
There was one further consideration raised by APRA which I consider to be significant. APRA submitted that the public interest in non-disclosure was heightened when the report was in draft form, and referred to the decision of Beaumont J in Harris v Australian Broadcasting Corporation and Ors (1983) 50 ALR 551. That case involved interim reports prepared in the course of an investigation into the legal department of the Australian Broadcasting Commission. An application was made under the Freedom of Information Act for the release of the interim reports prepared by the investigator. At the time the application was made, the final report had not been completed. His Honour was required to decide whether the public interest required that the interim reports remain confidential and observed at 563: 'Given that the public interest is not a static concept, in my opinion, full disclosure of the reports, at this stage, would, on balance, be contrary to the public interest. The unchallenged evidence is that, in submitting her "interim" reports, Miss Pearlman did not seek information or comment from the applicant. No doubt, this course was adopted for sound practical reasons, presumably in the interests of expedition. But an incomplete inquiry conducted on such a limited footing could only lead to the formation, at that point, of views or opinions of a tentative or provisional kind (cf Blackshaw v Lord [1983] 3 WLR 283 at 301). However, publication of such views or opinions, provisional as they may be, could create a misleading, perhaps unfair, impression in the minds of readers who do not have the benefit, if there be any, of knowing the response of the applicant. The formation of such impressions in the public mind could, in turn, influence the decision-makers in their review of the situation.' 57 The considerations which arise in evaluating the public interest in a freedom of information application may be different from those in a claim of public interest immunity. The interest in a freedom of information application is that of the public generally in being able to gain access to government documents and in transparent governance more broadly, whereas a litigant opposing a public interest immunity claim has a specific and significant interest in obtaining documents relevant to his or her claim. Nonetheless, the considerations are likely to be similar. 58 In Harris , Beaumont J found that it was not in the public interest to release draft reports where the final report had not been completed, because of the potential of the draft reports in isolation to mislead. His Honour was concerned that the release of details before the conclusion of the investigation may influence the minds of the decision-makers in their review of the matter. 59 That is not the situation in the present proceedings. Although it has not been released, the final report has been completed and has been in the possession of APRA since 1 July 2005, that is, a period of almost a year. ASIC has already determined that it does not wish to pursue any criminal prosecutions. As recorded in the letter of the Attorney-General forwarded to APRA on 29 November 2005, the Office of the Director of Public Prosecutions did not have any objections to the reports being released to ZFS and ZAI. In respect of APRA, although it is continuing to review its position with respect to potential action which it may take against individuals, I am not able to determine, at this stage, that the release of the entirety of the draft reports to the applicant would materially influence APRA's future conduct. 60 It is true that a person reading the draft reports may be misled or may come to conclusions about individuals named in the reports which are unfair unless the totality of the evidence included in the final report is known. But in my opinion, mere unfairness to a party named in the draft report should not, without more, be a reason to declare it subject to public interest immunity and thereby deprive a litigant of a document which is relevant to proceedings which he wishes to pursue.