Bartucciotto and Commissioner for Complaints
[2006] AATA 36
•17 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 36
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/64
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL BARTUCCIOTTO Applicant
And
COMMISSIONER FOR COMPLAINTS
Respondent
DECISION
Tribunal Deputy President S D Hotop Date17 January 2006
PlacePerth
Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that:
· Document 14 is wholly an exempt document under s 42(1) of the Freedom of Information Act 1982 (Cth) (“FOI Act”);
· each of Documents 1-5, 7-10, 12, 16-19, 21-25, 27-38, 40-42 and 45 is an exempt document under s 41(1) of the FOI Act but that, pursuant to s 22(1) of that Act, access to a copy of each of those documents, with the deletion of exempt matter as specified in paragraphs 23-27 of the Tribunal’s Reasons for Decision herein, is to be given to the applicant;
· each of the Documents 6, 11, 13, 15, 20, 26, 39, 43 and 44 is not an exempt document under the FOI Act, and access to each of those documents, without any deletions, is to be given to the applicant.
..........(sgd S D Hotop)...........
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION- request for access to documents- exempt documents- documents affecting personal privacy- personal information- documents subject to legal professional privilege- some documents exempt documents, other documents not exempt documents- decision under review set aside
Freedom of Information Act 1982 (Cth) s3, s4, s11, s22, s41, s42 and s61
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Re Sullivan and Department of Industry, Science and Technology (1997) 49 ALD 743
Waterford v Commonwealth (1987) 163 CLR 54
REASONS FOR DECISION
17 January 2006 Deputy President S D Hotop Introduction
1. On 6 January 2005 the applicant wrote to the respondent requesting, under the Freedom of Information Act 1982 (Cth) (“FOI Act”), a copy of any document held by the respondent’s office which refers or relates to him or to his deceased mother in the period “from 1 October 2002 to the present day”.
2. By letter dated 10 February 2005 a delegate of the respondent notified the applicant that he had identified 70 documents which were relevant to the applicant’s request and had decided:
· to release to the applicant 25 documents in full;
· to release to the applicant 38 documents with deletions of matter which was exempt matter under the FOI Act;
· not to release to the applicant 7 documents which were exempt documents under the FOI Act.
The delegate subsequently decided to release to the applicant 6 of the abovementioned 7 documents, but with deletions of matter claimed to be exempt matter.
3. On 15 February 2005, however, the applicant lodged with the Tribunal an application for review of the “deemed refusal” by the respondent to grant him access to the documents referred to in his request under the FOI Act. The applicant indicated in that application for review that he had not yet received notice of a decision by the respondent regarding his request for access under the FOI Act.
The Issues
4. The issues for determination by the Tribunal are whether:
· 44 of the 45 documents which are the subject of the present application for review are exempt documents under s 41 (“documents affecting personal privacy”) of the FOI Act;
· the remaining document is an exempt document under s 42 (“documents subject to legal professional privilege”) of the FOI Act.
The FOI Act
5. The FOI Act relevantly provides:
“…
3 Object
(1)The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:
…
(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
...
(2)It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
4 Interpretation
(1)In this Act, unless the contrary intention appears:
…
personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
…
11 Right of access
(1)Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person’s right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency’s or Minister’s belief as to what are his or her reasons for seeking access.
…
22 Deletion of exempt matter or irrelevant material
(1)Where:
(a) an agency or Minister decides:
(i)not to grant a request for access to a document on the ground that it is an exempt document; or
(ii)that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i)would not be an exempt document; and
(ii)would not disclose such information; and
(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make and grant access to, such a copy.
…
41 Documents affecting personal privacy
(1)A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
…
42 Documents subject to legal professional privilege
(1)A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
…”
Pursuant to s61(1) of the FOI Act the respondent bears the onus of establishing, in this proceeding, that the decision under review was justified or that the Tribunal should make a decision adverse to the applicant.
The Evidence
The respondent’s evidence
6. The evidence presented to the Tribunal on behalf of the respondent largely comprised 2 affidavits affirmed by Grant Thomas Davies, Principal Review Officer in the office of the respondent, who made the decision which is under review in the present proceeding. Mr Davies also gave oral evidence.
7. In his affidavit dated 10 June 2005 (Exhibit R1) Mr Davies relevantly deposed as follows:
“…
Section 41- Personal information of third parties
4.The exemption in section 41 of the Act (personal information) has been claimed in respect of all but one of the documents that are the subject of this proceeding.
5.I have determined that these documents contain the personal information of third parties employed by OCC [Office of the Commissioner for Complaints], the Department of Health and Ageing (DoHA) both in central office and in the Western Australia State office and Hall & Prior, the Approved Provider of the nursing home at which the Applicant’s mother previously resided (‘the Approved Provider’).
6.On 11 April 2005, I sent a letter to the Approved Provider on behalf of the Respondent pursuant to subsection 59(3) (sic) of the Act.
7.On 5 May 2005, I received a letter from the Chief Executive of the Approved Provider requesting that all individual identifying information be removed from the documents released to the applicant. Now produced, shown to me and marked ‘GTD-2’ is a true copy of that letter.
8.The Chief Executive’s request was based on concerns for the safety, health and well being of staff and management employed by the Approved Provider. These concerns were based on the Applicant’s previous threatening behaviour towards staff at the nursing home and threats the Applicant made in December 2004 against officers and stake-holders of the Approved Provider. According to the Chief Executive, a Restraining Order against the applicant was obtained and a 24-hour guard service employed in response to the applicant’s threatening behaviour at the nursing home. In response to the December 2004 threats, increased security measures were adopted at the Approved Provider’s Head Office.
9.I have reviewed Department of Health and Ageing File No 2003/069737, which contains a copy of a Violence Restraining Order issued against the applicant on 9 December 2003. On 10 February 2005, a copy of this document was released to the Applicant. Now produced, shown to me and marked ‘GTD-3’ is a true copy of that restraining order.
10.The Applicant’s dealings with the Western Australia office of DoHA were such that serious concerns were raised by officers there in relation to their individual health and safety. These concerns were raised at a national meeting of the Aged Care Complaints Resolution Scheme (the Scheme), of which the Respondent has statutory oversight, on 28 and 29 May 2003. A decision was made at the meeting as a consequence of the concerns of officers, that only first names, position title and position numbers would be included on the signature blocks for all letters in the Scheme. Now produced, shown to me and marked ‘GTD-4’ is an edited copy of the Minutes of that meeting. I am informed by staff of the Western Australia office of DoHA that the decision taken at the meeting on 28/29 May 2003 was taken, in part, as a result of the Applicant’s intimidating and aggressive behaviour, both by telephone and in person, with members of staff.
11.On 6 October 2004, the Commissioner issued a Minute to all staff directing that only the general office number of the OCC be provided to parties to complaints. Now produced, shown to me and marked ‘GTD-5’ is a true copy of the Minute issued on 6 October 2004.
12.I have also reviewed Department of Health and Ageing File No 2004/061481, which contains file notes of telephone conversations between OCC staff and the Applicant and letters to the OCC from the Applicant. These documents indicate that the Applicant has become increasingly aggressive in his interactions with OCC staff over the past 18 months.
13.On 8 March 2005 the Applicant initiated a series of telephone contacts with the OCC. The Applicant rang the OCC on three occasions prior to my speaking to him and spoke to two members of staff in heated tones. I answered the phone on the fourth occasion due to the strong reluctance of other members of staff to deal with the Applicant. The Applicant repeated a number of matters raised previously and screamed at me over the telephone. The Applicant has displayed this type of behaviour in the past. After reiterating my response that the OCC could not assist him further with his complaint, I terminated the telephone call. The Applicant then repeatedly telephoned the office over the following thirty minutes. I estimate that he telephoned approximately 15 times during this period, and eventually, instead of answering the call, voice mail was activated in order to ensure that no other members of staff were required to deal with the Applicant in that state. Now produced, shown to me and marked ‘GTD-6’ is a true copy of the file note I made of my telephone contact with the Applicant on 8 March 2005.
14.On the basis of the Approved Provider’s concerns regarding the health and safety of its employees, and the Applicant’s treatment of OCC and DoHA staff, I considered the release of the names and telephone numbers of third parties would be unreasonable. Consequently, I removed the names and telephone numbers of third parties from the documents the subject of the proceeding.
Section 42- Legal professional privilege
15.The exemption in section 42 of the Act (legal professional privilege) has been claimed in respect of one of the documents the subject of the proceeding. I have determined that the document in dispute is an e-mail from the Legal Services Branch of DoHA and contains legal advice regarding the complaint lodged by the applicant with the OCC in relation to Cabrini Nursing Home”.
The contents of the letter referred to in paragraphs 7 and 8 of Mr Davies’ affidavit (being annexure “GTD-2” to that affidavit) are as follows:
“I refer to your request for access (FOI Act) to documentation relating to the care of Mrs Maria Bartucciotto. I have reviewed the documents and am happy to authorize you to release them. However, it is of grave concern that whilst Mrs Bartucciotto was a resident in care, the staff experienced episodes of threatening behaviour from Mr Michael Bartucciotto. Extraordinary measures had to be put in place to ensure their safety such as the successful application of a Restraining Order and securing of a 24 hour guard service at the nursing home. Following his mother’s death Mr Bartucciotto continued to make threats against staff and management of the organisation.
In December 2004, our organisation was alerted by representatives from the Commonwealth Department of Health and Ageing that Mr Bartucciotto had threatened officers in the State Office and outlined details of obtaining retribution from a number of stake-holders. This prompted my decision to immediately instigate security measures within our Head Office. This relayed threat directly affected individuals for a number of weeks.
In light of these safety concerns for the health and well being of our management and staff please remove all individual identifying information from the documents to be supplied.
…”
The contents of the respondent’s Minute referred to in paragraph 11 of Mr Davies’ affidavit (being annexure “GTD-5” to that affidavit) are as follows:
“Over recent weeks, direct telephone numbers for staff of my office have been provided to parties to a complaint by the Scheme.
Given the recent concern raised at the National Management Meeting around privacy and safety of Scheme staff and the procedures adopted as a result, it is inappropriate for Scheme officers to provide direct line numbers to parties.
Should parties wish to contact staff of my office, Scheme officers should provide the following numbers only.
Toll free 1800 500 294 or
(03) 9665 8033.
…”
8. In his oral evidence at a resumed hearing in this proceeding on 18 October 2005 Mr Davies sought to amend paragraphs 10 and 15 of his affidavit of 10 June 2005. As regards paragraph 15, he said that the reference to “Cabrini Nursing Home” should be to “Burswood Nursing Home”. As regards paragraph 10, Mr Davies said that, in the light of evidence given by the applicant on the first day of the hearing (24 August 2005) to the effect that he did not contact the Department of Health and Ageing until December 2003, he communicated with the Western Australia office of the Department with a view to clarifying the matter. He said that he had initially been misinformed by the Department and he acknowledged that paragraph 10 of his affidavit was not completely correct and should be amended. The contents of paragraph 10 of Mr Davies’ affidavit, as amended in accordance with his oral evidence, are as follows:
“At a national meeting of the Aged Care Complaints Resolution Scheme (the Scheme), of which the Respondent has statutory oversight, on 28 and 29 May 2003 a decision was made that only first names, position title and position numbers would be included on the signature blocks for all letters in the Scheme. Now produced, shown to me and marked ‘GTD-4’ is an edited copy of the Minutes of that meeting. I am informed by staff of the Western Australia office of DoHA that a decision was subsequently made to implement the decision taken at the meeting on 28/29 May 2003 in part as a result of the Applicant’s intimidating and aggressive behaviour, both by telephone and in person, with members of staff.”
9. In response to a question from the Tribunal Mr Davies confirmed that, following receipt of the applicant’s request for copies of the relevant documents, he contacted, by facsimile dated 24 January 2005, Civilian Maimed and Limbless Association of Western Australia Inc and Hall & Prior (being, respectively, the management organisation, and the “approved provider” for the purposes of the Aged Care Act 1997 (Cth), in relation to Cabrini Nursing Home) regarding the applicant’s request. He said that he received in reply a letter from each of those organisations, and a copy of each of those letters was tendered in evidence. In a letter dated 25 January 2005 (Exhibit R2) the Executive Director of Civilian Maimed and Limbless Association stated that he had no objection to the release of the relevant documents to the applicant provided that “confidential matters including names and related identifying details including fax numbers, telephone numbers or addresses” were removed. In a letter dated 2 February 2005 (Exhibit R3) the Chief Executive of Hall & Prior requested that any reference to his name in the relevant documents not be disclosed.
10. Mr Davies said that he also undertook “verbal consultation” with officers of the Western Australian office of the Department of Health and Ageing and with officers within the office of the respondent “in relation to their personal information”, and that they objected to the release of such information.
11. At a resumed hearing in this proceeding on 18 October 2005 a further affidavit of Mr Davies, affirmed on 19 September 2005, was tendered in evidence (Exhibit R4). In that affidavit Mr Davies deposed:
“…
3.Following the adjournment of the Tribunal hearing on 24 August 2005, I reviewed the 45 documents in dispute and identified 15 third parties whose personal information was contained in some of the documents, and who were not officers of the Department of Health and Ageing (‘the Department’), the OCC or staff of the Approved Provider of the Cabrini Nursing Home (‘Approved Provider’), all of whom have objected to the release of their personal information.
4.On 26 August 2005 I sent out 15 letters to those 15 named persons in overnight Express Post envelopes requesting comments on the possible release of their personal information by 9 September 2005. Now produced, shown to me and marked with the letters ‘GTD-1’ is a true copy of one of the letters sent to a third party. Each letter sent was accompanied by copies of the documents the subject of the proceeding which were relevant to each individual.
…”
Mr Davies’ affidavit then summarised the replies which he received to his letters of 26 August 2005. The Tribunal notes that in those replies some “third parties” objected to the disclosure to the applicant of the relevant information about them, whereas others did not.
The applicant’s evidence
12. Much of the applicant’s evidence was not relevant to the issues to be determined by the Tribunal in this proceeding. The Tribunal notes, however, the following documentary material tendered in evidence by the applicant:
· a letter dated 28 July 2004 from Mr J Simper, Group Chief Executive Officer, MercyCare stating that there is no document on any of their files which states or implies that the applicant has “acted in a threatening manner towards any of the staff at Davis House” (Exhibit A2);
· a letter dated 7 July 2004 from Dr J Veling stating that he was “the family GP” for the applicant and his mother from 1983 to 1988, and that he has always found the applicant to be “a pleasant and easygoing person” and “never violent or unreasonable in any way” (Exhibit A3);
· a letter dated 13 July 2004 from Dr J Ricciardo stating that he was the “family GP” for the applicant and his mother from 1989 to 2002, and that the applicant had “never been violent or unreasonable” towards him and that he had found the applicant “to be very reasonable at all times” (Exhibit A4);
· a letter dated 7 July 2004 from Ms C van Malsen, Coordinator, Anglican Homes Inc stating that the applicant “was at all times very helpful and often expressed his gratitude for the care that his mother received at Catherine King House” (Exhibit A6);
· a statement dated 12 July 2005 from Ms Maureen Moore stating (inter alia) that her relationship with the applicant, while she was employed as Clinical Nurse Manager at Cabrini Nursing Home, was “always harmonious” (Exhibit A9).
Analysis and Findings
Is Document 14 an exempt document under section 42(1) of the FOI Act?
13. The category of exempt documents prescribed by s42(1) of the FOI Act comprises any document “of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege." In determining the ambit of that category of exempt documents, the Tribunal should apply the common law test for determining the applicability of legal professional privilege: Re Sullivan and Department of Industry, Science and Technology (1997) 49 ALD 743 at 754.
14. That common law test was revised by the High Court of Australia in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49. In that case it was held that the test is whether the relevant communication was made, or the relevant document was prepared, for the dominant purpose of a lawyer providing legal advice or assistance, or of use in legal proceedings.
15. Provided that the abovementioned “dominant purpose” test is satisfied, legal professional privilege, and s 42(1) of the FOI Act, may extend to documents whereby legal advice is requested and provided as between government officers, provided also that the professional relationship between the officers is such that the advice which is given is of an independent character: Waterford v Commonwealth (1987) 163 CLR 54.
16. Document 14 comprises an e-mail from a government officer to a government legal officer requesting legal advice regarding a specific matter, and an e-mail in reply from the government legal officer containing legal advice regarding that matter. The Tribunal is satisfied that that advice was requested on a professional basis and was provided on an independent professional basis. It is, furthermore, clear from the face of Document 14 that it was created for the dominant – indeed, the sole – purpose of a lawyer providing legal advice or assistance, and that it is, accordingly, “of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege”, for the purposes of s 42(1) of the FOI Act.
Finding
17. The Tribunal finds, therefore that Document 14 is wholly an exempt document under s 42(1) of the FOI Act.
Are Documents 1 - 13 and 15 - 45 exempt documents under section 41(1) of the FOI Act?
18. A document is an exempt document under s 41(1) of the FOI Act if the following requirements are satisfied:
· the document contains “personal information” (as defined in s 4(1)) about any person; and
· disclosure of the document under the FOI Act “would involve the unreasonable disclosure” of such “personal information”.
Do Documents 1 - 13 and 15 - 45 contain “personal information” about any person?
19. The information contained in each of the relevant documents, which the respondent submits is “personal information” (as defined in s 4(1) of the FOI Act), comprises the names, work e-mail addresses, direct work telephone numbers and direct work fax numbers of various persons.
20. In the Tribunal’s opinion information comprising a person’s name and contact details is clearly “information… about an individual whose identity is apparent, or can reasonably be ascertained, from the information”, within the meaning of the definition of the phase “personal information” in s 4(1) of the FOI Act. The Tribunal finds, therefore, that each of the relevant documents contains “personal information about [a] person”, within the meaning of s 41(1) of the FOI Act.
Would disclosure of each, or any, of the relevant documents under the FOI Act involve the unreasonable disclosure of such personal information?
21. The proper approach to the issue of the reasonableness or unreasonableness of the disclosure of personal information, for the purposes of s 41(1) of the FOI Act, has been explained in some often cited dicta of the Tribunal and the Federal Court. In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 the Tribunal (Deputy President Hall) said (at p N259):
“…Whether a disclosure is ‘unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.
However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognised by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document”. (Original emphasis)
In Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 Lockhart J said (at p 438):
“What is ‘unreasonable’ disclosure of information for purposes of s 41(1) must have as its core, public interest considerations. The exemptions necessary for the protection of ‘personal affairs’ (s 41) and ‘business or professional affairs’ (s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights; rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access, provided the other conditions mentioned in ss 41 and 43 are satisfied. An examination of the other provisions of Pt IV of the Act concerning exempt documents confirms this approach.”
Heerey J said (at p 441):
“Turning to the criterion of unreasonableness prescribed by the s 41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would inure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.”
22. In order to consider this issue it is convenient to divide the “third parties”, about whom “personal information” is contained in the relevant documents, into the following categories:
·the management and staff of the management organisation and the “approved provider” of Cabrini Nursing Home;
·officers of the Department of Health and Ageing;
·officers of the office of the respondent;
·others.
23. As regards the management and staff of the management organisation and the “approved provider” of Cabrini Nursing Home, on the basis of evidence tendered on behalf of the respondent, namely:
·paragraphs 7 and 8 of Mr Davies’ affidavit dated 10 June 2005 (Exhibit R1);
·the letter dated 5 May 2005 referred to in paragraphs 7 and 8 of Mr Davies’ affidavit (being annexure “GTD-2” to that affidavit);
·the letter dated 25 January 2005 (Exhibit R2) and the letter dated 2 February 2005 (Exhibit R3), referred to in paragraph 9 above;
the Tribunal, having regard to the considerations referred to in Chandra and Colakovski (above), is satisfied that it would be unreasonable to disclose to the applicant under the FOI Act any “personal information” about such persons which is contained in the relevant documents.
24. As regards officers of the Department of Health and Ageing employed in the Department’s Western Australia office, the Tribunal notes:
·Mr Davies’ oral evidence (referred to in paragraph 10 above) that, in the course of “verbal consultation” which he undertook with such officers, they objected to the release of their personal information to the applicant;
· the reference in paragraph 10 of Mr Davies’ affidavit dated 10 June 2005 (Exhibit R1) – as amended on 18 October 2005 (see paragraph 8 above) – to his being informed by officers in the Department’s Western Australia office that the applicant had engaged in “intimidating and aggressive behaviour, both by telephone and in person, with members of staff”; and
· the reference in the second paragraph of the letter dated 5 May 2005 from the Chief Executive of Hall & Prior (annexure “GTD-2” to Mr Davies’ affidavit) to his organisation’s being “alerted by representatives from the Commonwealth Department of Health and Ageing that [the applicant] had threatened officers in the State office…”
The Tribunal also notes, on the other hand, that the relevant “personal information” is about public servants and relates exclusively to them in the context of their performance of their public duties, and it accepts that, as a general rule, disclosure of such “personal information” under the FOI Act would not be unreasonable. In the present case, however, having regard to the abovementioned evidence and to the considerations referred to in Chandra and Colakovski (above), the Tribunal is satisfied that it would be unreasonable to disclose to the applicant under the FOI Act any “personal information” about any of the officers of the Department of Health and Ageing employed in the Department’s Western Australia office which is contained in the relevant documents.
25. In relation to officers of the office of the respondent, similar considerations apply. In the Tribunal's opinion, however, the evidence in support of non-disclosure to the applicant of the “personal information” about these officers is somewhat less compelling. In particular, although there is evidence before the Tribunal regarding the applicant’s having communicated on numerous occasions, by telephone calls and letters, with the office of the respondent in an aggressive and belligerent manner (see paragraphs 12 and 13 of Mr Davies' affidavit dated 10 June 2005 (Exhibit R1)), there is no evidence of any threatening or intimidating behaviour by the applicant towards particular officers. Nor is there any evidence before the Tribunal that any of these officers has specifically objected to their “personal information” being disclosed to the applicant. Having regard to the evidence before it and to the considerations referred to in Chandra and Colakovski (above), the Tribunal is satisfied that it would not be unreasonable to disclose to the applicant under the FOI Act the names of officers of the office of the respondent which are contained in the relevant documents, but that it would be unreasonable to disclose to the applicant under the FOI Act the contact details – namely, the e-mail address, the direct work telephone number and the direct work fax number – of any of those officers which are contained in the relevant documents. The Tribunal notes that this conclusion is consistent with the Minute issued by the respondent on 6 October 2004, referred to in paragraph 11 of Mr Davies’ affidavit dated 10 June 2005 (Exhibit R1).
26. As regards officers of the Department of Health and Ageing employed in the Department’s central office, for reasons similar to those expressed in the preceding paragraph the Tribunal is satisfied that it would not be unreasonable to disclose to the applicant under the FOI Act the names of such officers which are contained in the relevant documents, but that it would be unreasonable to disclose to the applicant under the FOI Act the contact details – namely, the e-mail address, the direct work telephone number and the direct work fax number – of any of those officers which are contained in relevant documents.
27. As regards the other “third parties” who do not fall within the categories referred to in paragraphs 23 – 26 above, the relevant evidence before the Tribunal comprises Mr Davies’ affidavit dated 19 September 2005 (including annexures “GTD-1” – “GTD-12” thereto) (Exhibit R4). As set out in paragraphs 5-17 of Mr Davies’ affidavit, some of those “third parties” objected to the disclosure of some, or all, of the relevant “personal information” to the applicant under the FOI Act, while others stated that they had no objection to such disclosure. The Tribunal has inspected the relevant documents and, having regard to Mr Davies’ affidavit (and the annexures thereto) and to the considerations referred to in Chandra and Colakovski (above), concludes as follows:
·as regards each of the persons who stated that they had no objection to the disclosure of the relevant “personal information” to the applicant (as referred to in paragraphs 6, 8, 10, 12, 13 and 17 of Mr Davies’ affidavit), the Tribunal is satisfied that it would not be unreasonable to disclose to the applicant under the FOI Act that “personal information” which is contained in the relevant documents;
·as regards the person referred to in paragraph 5 of Mr Davies’ affidavit, the Tribunal is satisfied that it would be unreasonable to disclose to the applicant under the FOI Act the direct e-mail address of that person, but that it would not be unreasonable to disclose to the applicant under the FOI Act other “personal information” about that person which is contained in the relevant documents;
·as regards each of the persons who objected to the disclosure of any part of the relevant “personal information” to the applicant (as referred to in paragraphs 7, 11, 14, 15 and 16 of Mr Davies’ affidavit), the Tribunal is satisfied, notwithstanding the objections expressed by those persons, that it would not be unreasonable to disclose to the applicant under the FOI Act all of that “personal information” which is contained in the relevant documents because that “personal information”:
-comprises merely the names of those persons and, in one case, also the person’s professional address and (not direct) telephone number;
-refers to such persons only in their professional capacities;
-does not refer to the private affairs of any of those persons and, in the Tribunal’s opinion, is not of such a nature that its disclosure could reasonably cause distress or embarrassment to any of those persons;
and because, in the Tribunal’s opinion, no good reason for the objection to the disclosure of the relevant “personal information” was given by, or on behalf of, any of those persons.
Findings
28. Having regard to the conclusions referred to in paragraphs 23-27 above, the Tribunal's findings, as regards Documents 1-13 and 15-45, are as follows:
·each of Documents 1-5, 7-10, 12, 16-19, 21-25, 27-38, 40-42 and 45 is, by reason of the inclusion of exempt matter, an exempt document under s 41(1) of the FOI Act;
·each of Documents 6, 11, 13, 15, 20, 26, 39, 43 and 44 is not an exempt document under s 41(1) of the FOI Act.
29. The Tribunals also finds that Documents 6, 11, 13, 15, 20, 26, 39, 43 and 44 do not contain information that, for the purposes of s 22(1)(a)(ii) of the FOI Act, could reasonably be regarded as irrelevant to the applicant’s request of 6 January 2005 for access to the relevant documents under that Act.
Conclusion
30. It follows from the above findings that access to Documents 6, 11, 13, 15, 20, 26, 39, 43 and 44, without any deletions, should be given to the applicant.
31. As regards Documents 1-5, 7-10, 12, 16-19, 21-25, 27-38, 40-42 and 45, pursuant to s 22(1) of the FOI Act, access to a copy of each of those documents, with the deletion of exempt matter as specified in paragraphs 23-27 above, should be given to the applicant.
32. Finally, as the Tribunal has found that Document 14 is wholly an exempt document, the Tribunal does not have the power to decide that access to that document is to be given to the applicant: see s 58(2) of the FOI Act.
Decision
33. For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that:
·Document 14 is wholly an exempt document under s 42(1) of the FOI Act;
·each of Documents 1-5, 7-10, 12, 16-19, 21-25, 27-38, 40-42 and 45 is an exempt document under s 41(1) of the FOI Act but that, pursuant to s 22(1) of that Act, access to a copy of each of those documents, with the deletion of exempt matter as specified in paragraphs 23-27 above, is to be given to the applicant;
·each of Documents 6, 11, 13, 15, 20, 26, 39, 43 and 44 is not an exempt document under the FOI Act, and access to each of those documents, without any deletions, is to be given to the applicant.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President, S D Hotop
Signed: (sgd E M Jordan) .....................................................................................
Associate
Date/s of Hearing 24 August, 18 October 2005
Date of Decision 17 January 2006
Representative of the Applicant In person
Representative of the Respondent Ms E Nance
Solicitor for the Respondent Australian Government Solicitor
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