Bennett and Chief Executive Officer of Customs
[2005] AATA 975
•4 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 975
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/353
GENERAL ADMINISTRATIVE DIVISION ) No A2004/354 Re Peter Bennett Applicant
And
Chief Executive Officer of Customs
Respondent
DECISION
Tribunal Mr J.W. Constance, Senior Member Date4 October 2005
PlaceCanberra
Decision
- In application A2004/353 the decision of the Respondent made on 16 September 2004 is affirmed.
- In application A2004/354 the decision of the Respondent made on 16 September 2004 is varied to provide that the Applicant have access to documents 52-57 inclusive, 59, 60, 61, 63, 88, 89, and 101 referred to in Schedule B of the affidavit of Deborah Joy Wauchop sworn 3 August 2005.
- The decision set forth in the preceding paragraph shall not take effect until 26 October 2005.
- The parties may seek further directions as to costs, if necessary.
..............................................
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION exempt documents -- prejudice to audits - personal privacy - legal professional privilege - business affairs
Freedom of Information Act 1982 (Cth) s 4, 9, 11, 22, 40, 41, 42, 43, 61
Telecommunications Act 1997
Bennett v Chief Executive Officer, Australian Customs Service [2004] FCAFC 237
Colakovski v Australian Telecommunications Corporation (1991) FCR 429
Kelly v Commonwealth of Australia (1980) 29 ACTR 11
Mickelberg and Australian Federal Police (1984) 6 ALN N176
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1982) 108 ALR 163
Trade Practices Commission v Sterling (1979) 36 FLR 244
Waterford v The Commonwealth (1987) 163 CLR 54
REASONS FOR DECISION
4 October 2005 Mr J.W. Constance, Senior Member INTRODUCTION
1. Mr Bennett is an employee of the Australian Customs Service. On a number of occasions he has applied to Customs under the Freedom of Information Act1982 (Cth) for access to various documents.
2. Not all documents sought have been supplied and Mr Bennett has applied for a review of 2 decisions refusing access to documents or part of documents. In summary the documents to which access is sought are:
·documents about Mr Bennett, dealt with or within the control of Customs since 1 January 1999;
·documents relating to claims for workers’ compensation made by Mr Bennett, being documents dealt with or in the control of Customs since August 1998;
·documents about Mr Bennett and concerning his workplace and/or home telephone, email/internet or computer usage.
3. Both before and after the filing of these applications a number of documents were released. One hundred and thirty-six documents, some of which have been released with deletions, remain in dispute. They are the documents numbered 2-6 inclusive and 8-138 inclusive in Schedules A and B to the affidavit of Deborah Joy Wauchop sworn 3 August 2005 which is exhibit R1. I do not propose to set out the detailed list in these reasons.
4. Documents 1 and 7 in Schedule A have been released. Documents 19, 21-24 inclusive, 26 and 27 are claimed to be outside the scope of the request. I agree with this assessment of these documents.
5. The right of access to documents provided by the Act excludes exempt documents: subsection 11(1). All of the documents in issue are claimed to be exempt on one or more of the following grounds:
·“disclosure…… would, or could reasonably be expected to…… prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency”, in this case Customs: subsection 40 (1) (a);
·“disclosure…… would involve the unreasonable disclosure of personal information about any person (including a deceased person”: subsection 41(1);
·they are “of such a nature that [they] would be privileged from production in legal proceedings on the ground of legal professional privilege: subsection 42(1); and
·they come within the definition of documents relating to business affairs as set out in section 43 .
Some of the documents are claimed to be exempt under other sections of the Act but I have not considered these sections in relation to documents I have already found to be exempt.
6. In the applications before me the onus is on Customs to establish that the decisions which have been given are justified: section 61.
CLAIMED GROUNDS FOR EXEMPTION
Subsection 40(1)(a): documents concerning the conduct of tests, examinations or audits by Customs
7. Subsection 40(1)(a) provides:
“(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;”
The exemption does not apply in respect of matter in a document which, on balance, it would be in the public interest to disclose: subsection 40(2).
8. There are 35 documents in respect to which a claim is made for exemption under subsection 40(1)(a). These documents are held on files kept by the Internal Audit Unit of Customs following investigations involving Mr Bennett.
9. Although the Tribunal was dealing with a section relating to the exemption of documents relating to law enforcement and administration, comments made in Re Mickelberg and Australian Federal Police (1984) 6 ALN N176 are equally applicable to the application of subsection 40(1)(a):
“…it is one thing for observers to deduce, with varying success from everyday experience media reports and other informal sources, what appear to be the methods and procedures employed by such agencies to achieve their objects, but it is quite another thing to have spelt out publicly from the agencies, own documents or in the proceedings of a Tribunal such as this what those methods and procedures are.”
10. An exemption is claimed in respect of parts of a number of documents which disclose contact details and references of organizations requested to supply details of telephone records of a number of people, including Mr Bennett. This information was sought under the Telecommunications Act 1997. I am satisfied that the disclosure of the means of obtaining such information would prejudice the effectiveness of the procedures and methods of future audits by Customs and that on this basis the matter deleted from the following documents is exempt matter:
Documents 65, 69, 70, 71, 113, 125, 127 and 129.
11. On the basis that the disclosure would spell out the methods and procedures of Customs and the sources of information used, I am satisfied that the following documents, or those parts deleted, are exempt documents or matter under subsection 40(1)(a):
Documents 74-78 inclusive, 80, 81, 83, 86, 90, 91, 95-98 inclusive, 102-105 inclusive, 121, 122, 132 and 134-137 inclusive.
12. It is important for the proper functioning of Customs that it be able to maintain the confidentiality of information which it wishes to remain confidential and to this end it needs to have an effective internal audit system to monitor the conduct of those within the organization. I am satisfied that there is no matter in any of the documents which I have found is exempt under subsection 40(1)(a), the disclosure of which would be in the public interest.
Subsection 41(1): documents affecting personal privacy
13. Subsection 41(1) provides:
“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).”
This exemption does not apply if the personal information is about the person making the request: subsection 41(2).
14. “Personal information “ is defined in subsection 4(1):
“personal information means information or an opinion (including information forming part of a data base), 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.”
15. The Full Court of the Federal Court gave detailed consideration to subsection 41(1) in Colakovski v Australian Telecommunications Corporation (1991) FCR 429 and said:
“……the ‘personal affairs’ of a person within the meaning of ss 41(1) and 12(2) of the FOI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not[1]…… Whether any disclosure of the information would be an “unreasonable disclosure” within s 41(1) is a different question[2]...... “every person” has a “legally enforceable right to obtain access” to documents under the FOI Act: s 11. There is no requirement that the person seeking access have a proprietary or any other interest in documents or the information contained in them. The object of the Act, as expressed by s 3, is to give the “Australian community” the right of access to information in the possession of the Australian Government. What is “unreasonable” disclosure of information for purposes of s 41(1) must have, as its core, public interest considerations[3]…… But the exclusion of applicants from access to documents, although necessary in cases such as the present, must be treated with great care by tribunals before whom questions arise under the FOI act.[4]”
[1] At p. 436
[2] At p. 436
[3] At p. 438
[4] At p. 439
16. Document 11 has a deletion of a file number and name of a person to whom disciplinary proceedings related. This is clearly personal information of that person and I am satisfied that as the matter relates to Customs internal disciplinary proceedings, disclosure would be unreasonable.
17. There are several documents which provide the results of enquiries made as to both incoming and outgoing calls made from telephones provided by Customs for the use of Mr Bennett (but not solely for his use) as part of his employment. Customs has claimed that details of telephone numbers called from the Customs telephones and numbers which called the Customs telephones are personal information. Telephone numbers alone do not indicate the maker or the recipient of the call and I am not satisfied that the numbers alone are personal information. In any event I am not satisfied that to disclose the numbers alone, being information relating to telephones calls made within a government organization, is unreasonable.
18. Some of the same documents also contain lists of names of people or organizations listed as having the use of the number called or the number from which a call was made, both within and outside Customs. This information does not indicate that any particular individual made or received a call. I accept Customs’s argument that this is personal information. However on the basis that the calls were made to or from Customs telephones I am satisfied that the disclosure of that personal information is not unreasonable.
19. For the reasons set out in the proceeding 2 paragraphs the material deleted from the following documents is not exempt:
Documents 52-57 inclusive, 59, 60, 61, 63, 88, 89 and 101.
20. A more difficult question arises in relation to those documents which contain records of calls made to and from Mr Bennett’s home telephone, which in some cases contain entries identifying the name of the subscribers to whom calls were made. Mr Bennett gave evidence that persons other than himself used his home telephone. These details are clearly within the definition of “personal information” and as the information may relate to persons other than Mr Bennett the exclusion in subsection 41(2) does not apply. As the information relates to private telephone calls I am satisfied that the disclosure of that information would be unreasonable and the documents containing this information are exempt. Applying the test referred to in the Colakovski decision it is not in the public interest that details of the telephone calls of individuals made from private telephones be disclosed, possibly to the world at large.
21. Mr Bennett relied on the advice of Mr Smolenski, to whom some of the personal information relates, in the following terms:
“I waive my rights to any exemption from disclosure that may apply to me under the Freedom of Information act 1982 in respect of any request by Peter Bennett which are now the subject of any AAT proceedings 2004/353 & 354.”[5]
[5] Exhibit A5
22. Mr Smolenski has been granted access to the same IAU documents (with different deletions) which have revealed to him his personal information. If Mr Smolenski wishes to disclose this information to Mr Bennett he can do so directly and on such terms as he wishes. In these circumstances I am of the view that disclosure of this information to the world at large by Customs would be unreasonable.
23. On the basis stated, documents 64, 66, 67, 68, 99, 100, 106-112 inclusive, 114-120 inclusive, 123, 124, 126, 128, 130 and 131 are exempt.
Section 42: documents subject to legal professional privilege
24. Subsection 42(1) provides:
“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.”
25. Legal professional privilege attaches to “documents which themselves are confidential communications between solicitor and client for professional purposes; these are privileged without regard to the question whether they were made for the purpose of actual or contemplated litigation’”: Kelly v Commonwealth of Australia (1980) 29 ACTR 11 at p.12. This privilege applies to communications between Commonwealth officials and legal advisers employed by the Commonwealth, provided a solicitor-client relationship exists: Waterford v The Commonwealth (1987) 163 CLR 54.
26. The Australian Government Solicitor was the solicitor for Customs at all times and clearly comes within the law as stated in the Waterford decision. In fact the solicitors of the Australian Government Solicitor’s Office are no longer employed by the Commonwealth but by a statutory authority which gives them greater autonomy.
27. Each of the following documents is an exempt document as it is a confidential communication between solicitor and client for professional purposes:
Documents 2, 5, 9, 10, 12-18 inclusive, 20, 25, 28-34 inclusive, 36-38 inclusive, 40-48 inclusive, 50 and 51.
28. Documents 35, 39 and 49 are emails between Customs staff which attach copies of advice tendered by the Australian Government Solicitor. These documents are also subject to legal professional privilege and are exempt documents as they contain the substance of legal advice: Trade Practices Commission v Sterling (1979) 36 FLR 244.
29. Mr Bennett has argued that the documents referred to in the preceding 2 paragraphs are not exempt documents by reason of the provisions of subsection 42(2) which is as follows:
“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).”
Subsection 9(1) in essence applies to documents which are provided to, or are used by, an agency in its decision making process. As a general rule these documents are to be made available for purchase by members of the public. Mr Bennett has argued that as advices relating to his position within Customs may be used in making decisions in relation to others, they come within subsection 9(1) and therefore are not exempt documents. If this argument is correct it would mean that most, if not all, legal advices would not be exempt and in fact would be required to be put on sale to the public. I am of the view that this is not the intent of the legislation. Subsection 42(2) says that a document is not exempt “by reason only” (emphasis added) of the matter referred to in subsection 9(1). The inclusion of such material along with other advice does not bring subsection 42(2) into operation.
30. As was pointed out by the Full Court of the Federal Court in Mr Bennett’s appeal in the matter of Bennett v Chief Executive Officer, Australian Customs Service [2004] FCAFC 237, it is a matter for the Tribunal whether or not documents fall within subsection 9(1). In this case I am not satisfied that any of the documents fall within this category.
31. Mr Bennett also argued that I should exercise a discretion to waive any legal privilege which may attach to the documents in dispute. He relied on a Minute[6] of 2 March 1996 from the Secretary of the Attorney-General’s Department indicating that agencies should waive privilege in the case of documents “with no particular sensitivity.” Subsection 58(2) makes it clear that I do not have such a discretion
[6] Exhibit A2
Subsection 43(1): documents relating to business affairs.
32. Under subsection 43(1)(c) a document is an exempt document if its disclosure under the Act would disclose ‘information……concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:
(i) the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or
(ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.’
The information includes details of when the calls were made, the length of the calls, and between which numbers. This information is not publicly available
33. Only documents 3, 4, 6 and 8 are in issue under this section and in each case it is only an exemption of part of the document (in accordance with section 22) which is claimed. The matter for which exemption is claimed is limited to the rates at which Customs will be charged for the services of a number of legal representatives which the Australian Government Solicitor proposed to Customs as suitable advisers in relation to Mr Bennett’s application for the production of documents. These representatives were from both within the Australian Government Solicitor’s office and from private practice.
34. The amount of fees proposed is clearly information concerning the practitioners and the Australian Government Solicitor. The question which must be answered is whether the disclosure of the fees “could reasonably be expected to……unreasonably affect that person in respect of his or her lawful business or professional affairs.” [7] This is a question of fact. The question is not whether it is reasonable for a person to claim the exemption: Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1982) 108 ALR 163.
[7] Subsection 43(1)(c) (i).
35. I am satisfied that the disclosure of the fees which individual practitioners and/or the Australian Government Solicitor propose to charge Customs could reasonably be expected to have such an adverse effect. The fees may vary from those which a practitioner may charge to other clients or in other circumstances. They may also be fees which he or she may not want known to other practitioners or clients. The obtaining of this information by others may affect the future instructions received by a practitioner or the fees which may be charged and thus affect the lawful business affairs of the practitioner.
36. For these reasons I am satisfied that the matter deleted from documents 3, 4, 6 and 8 are properly deleted as the matter is exempt.
DECISION
37. In application A2004/353 the decision of Customs made on 16 September 2004 is affirmed.
38. In application A2004/354 the decision of Customs made on 16 September 2004 is varied to provide that Mr Bennett have access to documents 52-57 inclusive, 59, 60, 61, 63, 88, 89, and 101 referred to in Schedule B of the affidavit of Deborah Joy Wauchop sworn 3 August 2005.
39. The decision set forth in the preceding paragraph shall not take effect until 26 October 2005.
40. The parties may seek further directions as to costs, if necessary.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member
Signed: .....................................................................................
Peter Strauch, AssociateDate/s of Hearing 10 August 2005
Date of Decision 4 October 2005
Representation for the Applicant Self Represented
Representation for the Respondent Mr Roger Northcote
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