Bartucciotto and Commonwealth Ombudsman
[2005] AATA 1109
•27 July 2005
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 and Ageing and the Respondent. Ultimately, a delegate of the Respondent determined that the actions of the Department of Health and Aging would not be further investigated and this decision was later upheld by the Deputy Ombudsman.
5. Section 3 of the Freedom of Information Act 1982 states inter alia that the objects of the Act are to extend as far as possible the rights of the Australian community to access information in documentary form in the possession of Ministers, Departments of State and public authorities. To this end ss 11(1) FOI Act provides that, subject to the FOI Act, every person has a legally enforceable right to obtain access to the document of an agency unless that document is exempt from disclosure under the FOI Act.
6. Section 61 FOI Act then provides that the Agency to whom the request for access to documents was made has the onus of establishing that the decision under review was justified or that the Administrative Appeals Tribunal should give a decision adverse to the Applicant.
7. In this matter the Respondent’s claims for exemption from disclosure was made pursuant to four sections of the FOI Act. Those sections so far as is relevant are:-
“SECTION 36
Internal working documents
(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.
(5) This section does not apply to a document by reason only of purely factual material contained in the document.
(6) This section does not apply to:
(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b) reports of a prescribed body or organization established within an agency; or
(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.
SECTION 40
Documents concerning certain operations of agencies
(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or
(e) have a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations.
(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.
SECTION 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).
SECTION 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.
(2) A document of the kind referred to in subsection 9 (1) is not an exempt document by virtue of subsection (1) of this section by reason only of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9 (1).
8. A brief description of the documents in dispute and the reasons for claiming exceptions for disclosure are set out in an Annexure to a letter from the Respondent to the Tribunal (with a copy to the Applicant) dated 19 July 2005. That letter with its Annexure became Exhibit R4. Copies of the documents were provided to me and I have inspected the said documents.
9. In discussing the claims for exemption I refer to the reference letters given to the documents in Annexure to Exhibit R4.
10. So far as relates to documents A and C, the Respondent is prepared to concede that these documents should be released.
11. In documents B, D, F, G, H, I, J, L, M, and N, the Respondent seeks to prevent disclosure of the direct telephone numbers and email addresses of various officers of the Public Service who have had dealings with the Applicant. It is conceded that the names of those officers should be released to the Applicant.
12. The claim for exemption of direct telephone numbers and direct email addresses is made pursuant to s 41 FOI Act, namely documents affecting personal privacy.
13. The term “personal information” is defined in s 4 FOI Act as:
“personal information" means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
14. The term “personal information” or analogous terms have been discussed in several cases both in the Federal Court and before this Tribunal (see Mansfield J in Ward v Centrelink (2005) ALD 231 commencing at paragraph 27).
15. As to what might be an unreasonable disclosure of personal information the first consideration is that whereas the motives of the person seeking disclosure are irrelevant (see Re Shewcroft & Australian Broadcasting Corporation (1985) 2 AAR 496), at the same time it must be recognised that disclosure is to the world at large, Re Williams & Registrar Federal Court of Australia (1985) 8 ALD 219. What is or is not reasonable is a question of fact and degree which calls for a balancing of all the legitimate interests involved, see Wiseman v the Commonwealth of Australia (unreported Full Federal Court G167 of 1989, 24 October 1989). Further, the court in Wiseman (supra) said that the Administrative Appeals Tribunal had made no error of law when it followed Re Chandra & Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at paragraph 259 in particular the passage stating:
Whether a disclosure is “unreasonable” requires……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.
16. Given the circumstances of this matter and in particular the propensity of the Applicant to pursue his particular concerns obsessively I believe that it is proper to refuse disclosure to him of the means of direct contact with individual Commonwealth officers. He still has access to the general enquiry number or email address of the agencies who can then direct his enquiries to the appropriate officers without the necessity of disturbing other officers who may be irrelevant to the Applicant’s enquiry.
17. In document E, exemption is claimed for part of that document pursuant to ss 36(1) the document being an internal working document. Having inspected the said document, I am satisfied that the part of the document for which exemption is claimed does not fall within the terms of the Applicant’s request.
18. Exemption is claimed for part of Document J on the grounds that the document is an internal working document and that parts for which exemption is claimed are not related to the Applicant’s request.
19. As was pointed out by Jackson J, with whom Tamberlin J agreed, at paragraph 147 of McKinnon v Secretary, Department of Treasury [2005] FCAFC 142:
Section 36(1) lays down a two-step test for determining whether a document is exempt as an internal working document; the term “internal working document” is not itself a specifically defined expression. The first step is whether it would disclose a matter in the nature of an opinion or other document prepared for the purpose of the “deliberative processes” of Government. The second is whether the disclosure of the document would be contrary to the public interest.
20. Having inspected the said document, I am satisfied that it does form part of the deliberative process being a response by the Department of Health and Ageing to the Respondent following questions asked of it by the Respondent. What has been exempted are the parts of the document that refer to the administration of the complaints scheme generally and to legal advice given to the Department.
21. Although legal advice has been disclosed in this document, it is in reply to questions asked by the Ombudsman and I do not consider that there has been any waiver by the Department of Health and Ageing of the common law legal professional privilege referred to in s 41 FOI Act in relation to that advice. Likewise, as it was revealed to the Ombudsman’s Office following questions asked of the Department by the Ombudsman, I reject any submission that by the revelation of the said legal advice to the Ombudsman, legal professional privilege has been lost.
22. The balance of the material for which the exemption is sought would be contrary to the public interest as it would, standing by itself, give an incomplete picture of the investigation by the Respondent of the Department of Health and Ageing complaints procedure, being but steps in the process of formulating an opinion.
23. Document K is a letter from the Ombudsman’s Office to the Department of Health and Ageing. Exemption is sought pursuant to ss 36(1) FOI Act. Having inspected the said document I agree that most of it falls outside the terms of the Applicant’s request in any event.
24. The document is clearly part of the investigative process and the same objections to its release apply as apply to document D discussed above.
25. For these reasons, the decision under review will therefore be affirmed except to the extent of concessions made by the Respondent and additional submissions made at the hearing in respect of part of document J at folio 123.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: (E.Pope) .....................................................................................
AssociateDate of Hearing 27 July 2005
Date of Decision 27 July 2005
Solicitor for the Applicant Self Represented
Solicitor for the Respondent Mr Bluck of the Ombudsman’s Office
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