Bartucciotto and Commonwealth Ombudsman - [2005] AATA 1109

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 1109
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/22

GENERAL ADMINISTRATIVE DIVISION )

Re

michael bartucciotto

Applicant

And

COMMONWEALTH OMBUDSMAN

Respondent

DECISION

Tribunal
Senior Member M D Allen

Date27 July 2005
PlacePerth

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/22

GENERAL ADMINISTRATIVE DIVISION )

Re MICHAEL BARTUCCIOTTO

Applicant

And

COMMONWEALTH OMBUDSMAN

Respondent

DECISION

Tribunal Senior Member M D Allen
Date27 July 2005
PlacePerth

Decision
For the reasons given orally at the conclusion of the hearing, the application under review is affirmed except for concessions made by the Respondent and additional submissions made at the hearing in respect of part of document J at folio 123.

(Sgd) M.D. ALLEN
.............................
Senior Member

CATCHWORDS
Freedom of Information – Whether documents concerning a complaint made to the Respondent regarding actions of the Department of Health and Ageing should be released – various grounds of exemption sought including unreasonable disclosure of personal information – application under review affirmed except for concessions made by Respondent at the hearing in respect to part of one document.
Freedom of Information Act (1982) s 3, 4, 36, 40, 41, 42, 61
Ward v Centrelink (2005) ALD 231
Re Shewcroft & Australian Broadcasting Corporation (1985) 2 AAR 496
Re Williams & Registrar of Federal Court of Australia (1985) 8 ALD 219
Wiseman v Commonwealth of Australia (unreported Full Federal Court G167 of 1989, 24 October 1989)
Re Chandra & Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142
REASONS FOR DECISION

27 July 2005
         Senior Member M D Allen

1. At the conclusion of the hearing of this application for review, the terms of the decision intended to be made and reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision. Those reasons are now stated below.
2. By application made the 12th Day of January 2005, the Applicant sought review of an internal review decision pursuant to s 54 of the Freedom of InformationAct 1982 (“FOI Act”) which decision substantially affirmed a prior determination refusing access to documents. There was one minor exception in that part of a document was released to the Applicant.
3.      The documents made under review were created following a complaint made to the Respondent concerning the actions of the Department of Health and Ageing, specifically in relation to a decision of that Department not to accept a complaint made under the Aged Care Complaints Resolution Scheme. That Scheme is established under the Aged Care Act 1987.
4.      An investigation was conducted by the Respondent in the course of which correspondence was passed between the Department of Health…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bartucciotto and Commonwealth Ombudsman

Details

AGLC: Bartucciotto and Commonwealth Ombudsman [2005] AATA 1109
Case: [2005] AATA 1109
Decision Date: 27 July 2005

CaseChat Overview and Summary

In the case of Bartucciotto and Commonwealth Ombudsman, the applicant sought the release of certain documents under the Freedom of Information Act 1982 (Cth). These documents pertained to a complaint made by the applicant regarding actions of the Department of Health and Ageing. The Commonwealth Ombudsman, the respondent, had declined to release the documents, citing various grounds of exemption, including the potential unreasonable disclosure of personal information. The applicant appealed this decision to the Administrative Appeals Tribunal (AAT), which was subsequently reviewed in the Federal Court of Australia.

The primary legal issues in this case centred on whether the documents should be released under the Freedom of Information Act. Specifically, the court had to determine whether the exemptions applied by the Ombudsman were justified, particularly in light of the personal information that might be disclosed. The court was also required to assess the proportionality of the exemptions and whether they aligned with the principles of the Act.

The Federal Court affirmed the application under review, agreeing with the AAT's decision. The court found that the exemptions claimed by the Ombudsman were generally valid and that the release of the documents would indeed cause unreasonable harm to the privacy and personal interests of individuals involved. However, the court noted concessions made by the Ombudsman at the hearing regarding part of one document, which led to a partial modification of the AAT's decision. This aspect of the document would be released, subject to redactions to protect personal information.

The final orders of the court affirmed the AAT's decision with the noted modification concerning the partial release of one document, following the concessions made by the Ombudsman. This outcome balances the public's right to access information with the need to protect personal privacy, as mandated by the Act.

Orders

Orders of the court

For the reasons given orally at the conclusion of the hearing, the application under review is affirmed except for concessions made by the Respondent and additional submissions made at the hearing in respect of part of document J at folio 123.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL BARTUCCIOTTO