Beale and Centrelink FOI

[2004] AATA 1195

Administrative

Appeals

Tribunal

 

DECISION AND ORAL REASONS FOR DECISION [2004] AATA 1195

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/92

GENERAL ADMINISTRATIVE DIVISION		)
Re		GLENN BEALE

Applicant

And CENTRELINK FOI

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date28 October 2004

PlaceAdelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

FREEDOM OF INFORMATION – access to documents – grounds for exempting release of information – anonymous tip-off regarding applicant’s living arrangements – disclosure would involve the unreasonable disclosure of personal information – decision affirmed

Freedom of Information Act 1982 ss 37, 41

Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257

ORAL REASONS FOR DECISION

28 October 2004   Senior Member WJF Purcell

1.      This is an application for review of a decision of a delegate of the respondent (the Department) of 12 January 2004, as affirmed by a Freedom of Information Review Officer on 1 March 2004, to exempt from release to the applicant portions of documents dated 17 November 2003, and 15 December 2003.

2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the Department.  The applicant appeared on his own behalf.  Ms Pugsley represented the Department.

3.      On 22 December 2003 the applicant lodged with the Department a request for access to documents, in the following terms:

“I would like to be provided with any documents or details that relate to an “anonymous” complaint made about me that has lead to me being required to provide answers on an “Assessment of Living Arrangements” form.” [Exhibit R1]

4.      On 12 January 2004 the Freedom of Information officer granted partial access to all three documents held in the applicant’s file that contained public information – tip-off recording system document number 469990 dated 17 November 2003, tip-off recording system document number 460615 dated 15 December 2003, and online document record dated 30 December 2003.

5.      The tip-off document of 17 November 2003 contained deletions in the following fields: Field 3 – First Employment, and Field 5 – Other Details. The tip-off document dated 15 December 2003 contained deletions in Field 3 – First Employment.  The online document record contained deletions at line 3 of the annotation of 30 December 2003.

6. The Freedom of Information officer advised the applicant that the portions of the tip-off documents that had been deleted contained information which could reasonably be expected to enable a person to ascertain the identity of a confidential source, and therefore were exempt, pursuant to s 37(1)(b) of the Freedom of Information Act 1982 (the Act). In relation to the online document record, the Freedom of Information officer determined that it contained personal information in the annotation of 30 December 2003, and was exempt therefore, pursuant to s 41(1) of the Act.

7.      Section 37 of the Act, as far as is relevant for the purposes of this review, provides:

“(1)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(a)prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;

(b)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; or

(c)       endanger the life or physical safety of any person.

(2)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(a)prejudice the fair trial of a person or the impartial adjudication of a particular case;

(b)disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or

(c)prejudice the maintenance or enforcement of lawful methods for the protection of public safety.

…”

8. Section 41(1) of the Act provides:

“(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).”

9.      The applicant requested a review of the decision, and on 1 March 2004 a Review Officer affirmed the decision.  On 12 March 2004 the applicant lodged a further application enclosing a letter from Ms Roxanne McKay, which reads as follows:

“I refer to the investigation being conducted by Centrelink in relation to Glenn Beale.

I am aware that in the course of this investigation, certain enquiries have been made to various institutions about my personal affairs and that you hold documents as a result of those enquiries.

I therefore authorise you to release any documentation you hold in relation to those enquiries to Glenn Beale.

I would also like to take this opportunity to advise that I am extremely upset and have been embarrassed by these enquiries which have been undertaken by the Investigating Officer. She, on behalf of Centrelink, obviously has no respect for responsible citizens.”  [Exhibit R1]

10.     In the light of Ms McKay’s letter, a Freedom of Information officer decided on 17 March 2004, to provide full access to the online document record, including the whole of the annotation of 30 December 2003.  This application relates therefore to the two remaining documents.  In support of his application the applicant stated:

“I have recently been investigated by Centrelink due to an anonymous “tip-off” Centrelink received via a telephone call.  Subsequently I have had my unemployment benefits suspended.

I have been making my own enquiries with Centrelink in relation to this investigation and have obtained a copy of my file and other relevant documentation.

On 15 January 2004 I wrote to Centrelink requesting a review of an earlier Freedom of Information decision and requesting details of the anonymous call.  I received a letter from Mr Chris Zadow, Manager, Freedom of Information & Privacy Area, South Australia dated 1 March 2004 enclosing a copy of a transcript [of] the “Tip Off Recording System”.  Certain parts of that transcript have been blocked out.  I enclose a copy of the letter and transcript for your information.

I am writing to appeal Mr Zadow’s decision.  I specifically require the information that has been blocked out.

Throughout my corresponding with Centrelink, it has been confirmed to me on several occasions that the person who provided the “tip-off” was anonymous.  The deleted information therefore will not contain the name of the person who made the “tip off”.  I am also concerned that parts of the information provided in the transcript are not correct and I want to ascertain whether Centrelink is using incorrect information to conduct the investigation into my circumstances.

I find it difficult to believe that all details of an anonymous “tip off” are not provided under the Freedom of Information Act when requested.

…”  [T1]

11.     The applicant maintains that the reason he wants to have access to the deleted portions of the documents, is that it is his intention to lodge an appeal against the Department’s decision to recover an overpayment of Newstart Allowance.  He considers that the deleted information would help in his appeal.  The information already provided by the Department, combined with other information relating to other legal proceedings in which he is involved, has put him, and his legal advisors, in no doubt as to the identity of the informant.  It is not that identity that the applicant is seeking.

12.     The Department contends that this exemption is intended to protect the identity of a confidential source of information in relation to the administration or enforcement of the law, rather than the information itself.  It is intended to protect the identity of a person who has supplied information on an express or implied understanding, that their identity would remain confidential.  The exemption also applies even if the information is old or wrong, and the informant is untruthful or malicious.  Centrelink regularly receives information from the public that assists in its administration of Social Security legislation.  To assist in this, a person may provide this information via the internet, by telephone, or in writing.  Furthermore, the informants may choose not to disclose their identity, and provide the information anonymously.

13.     The Department maintains that the advices received by Centrelink on 17 November 2003 and 15 December 2003, were provided via the telephone, from a person or persons who chose not to disclose their identity.  Where the information is provided anonymously, Centrelink respecting that the informant does not wish to make their identity known, treats any information that would or may reasonably be expected to disclose, or enable a person to ascertain, the existence or identity of the confidential source of information, as confidential.  Disclosure of any of the deleted portions of the documents in question, would, in the Department’s submission, lead either directly to the identity of the informant or informants being disclosed, or could reasonably be expected to prove sufficient information to lead to the identification of the informant or informants.  The deletion of the information contained in the documents is appropriate and necessary for the source, or sources, of the information to remain confidential.

14.     Turning to the question of whether the document is an exempt document.  In the matter of Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 Deputy President Hall said at paragraph 51:

“51.     … s.41(1) makes it clear that it is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act.  Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs.  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.”

15.     In this matter the applicant claims that he knows now the identity of the informant, who, I am satisfied on the evidence, expressed a wish that his/her identity remain confidential.  Release of the deleted information would lead, in my view, to positive, not speculative, identification of the person or persons.  In these circumstances disclosure would involve the unreasonable disclosure of personal information about that person or persons.  It is appropriate in these circumstances, therefore, that access to the documents be refused.

16.     For these reasons, the Tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .....................................................................................
  Associate

Date of Hearing  28 October 2004
Date of Decision  28 October 2004
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms A Pugsley
Solicitor for the Respondent     Centrelink Service Recovery Team