Beven and Centrelink

[2008] AATA 144

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 144

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2007/3614

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MARILYNNE BEVEN

Applicant

And CENTRELINK

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date25 February 2008

PlaceCanberra

Decision The decision under review is affirmed.

.........signed.....................................

Mr S. Webb, Member

CATCHWORDS

FREEDOM OF INFORMATION - tip off - request for access to information concerning identity of person - information from confidential source - relating to administration and enforcement of law - disclosure would reveal the identity of the source - access denied - decision affirmed

Freedom of Information Act 1982 ss 22, 37

McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645

Jephcott v Secretary, Department of Social Security (1985) 8 FCR 85

Hayes v Secretary, Department of Social Security (1996) 43 ALD 783

REASONS FOR DECISION

25 February 2008 Mr S. Webb, Member         

1.      Marilynne Beven receives pension payments from Centrelink.  Allegations about her circumstances were made using a Centrelink form on the internet.  That ‘information’ was subsequently found to be false.  Ms Beven requested access to the information, including the identity of the person who made the ‘tip off’.  Her request was considered by Ingrid Brown, a Freedom of Information Officer employed by Centrelink.  Ms Brown provided a ‘Tip Off Recording System’ document (Tip-Off Number 810350) (the ‘TORS document’) to Ms Beven with deletions.[1]  Subsequently, Ms Beven pressed her request concerning the name of the source.  The matter was reviewed by Judy Moller, a Freedom of Information Review Officer employed by Centrelink.  Ms Moller decided to release the TORS document in relation to Tip-Off Number 810350 with deletions.[2] 

[1] T5.

[2] T8.

2. The TORS document was handed up and labelled Exhibit R1 during the hearing. The information contained in this document concerning the identity and contact details of the source are not to be published to any person save and except for the tribunal member presiding, any officer of the tribunal in the performance of his or her duties, the Respondent and the Respondent’s representatives, pursuant to subs 35(2)(b) of the Administrative Appeals Tribunal Act 1975.

3.      I ordered pursuant to subs 35(2)(a) of the AAT Act that part of the hearing was to be conducted in private, Ms Beven being excluded from the hearing room, in order to take oral evidence from the source.  Furthermore, I ordered pursuant to subs 35(2)(aa) and (b) of the AAT Act that the name of the source and any evidence given that may lead to his or her identity is not to be published.  The witness will be referred to as Witness A.

4.      The issue to be determined by the Tribunal is whether or not Ms Beven is to be granted access to the documents within the scope of her request in toto without deletions.  I was informed that the only document in issue is the TORS document, which has been released to Ms Beven with deletions.

5.      Ms Beven is unhappy with the Centrelink decisions denying her access to the name of the source.  In her submission the person provided false information about her to Centrelink and she should be provided with the person’s name.  Ms Beven says that she wants to confront the person and to take legal action against him or her for slander and defamation.  Ms Beven says that she has been extremely stressed and hurt by the allegations.  She is concerned that someone has maliciously targeted her and may be stalking her.  Without knowing who it was who made the damaging allegations, she says she cannot obtain any closure and feels that she has been treated unfairly.

6.      In the circumstances one may have sympathy for Ms Beven’s feelings.  Her motives in seeking the name of the source may readily be understood.  However, the matter must be determined according to law.

7.      The Freedom of Information Act 1982 (the ‘FOI Act’) applies. Under the Act, access must be provided to the information sought unless it is exempt from disclosure. Information that is exempt may be deleted from a document that otherwise may be released (s 22). In this case Centrelink claims partial exemption on the basis of paragraph 37(1)(b):

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

…

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

8.      Thus, following the settled cases (see McKenzie v Secretary, Department of Social Security (1986)[3]) it is necessary to determine whether:

(a)the information is from a confidential source; and if so

(b)the information relates to the enforcement or administration of the law; and if so

(c)release of the information in toto would, or could reasonably be expected to disclose the identity of the confidential source.

[3] 65 ALR 645, at 648.

is the information from a confidential source?

9.      As will appear I am reasonably satisfied that this question must be answered in the affirmative.

10.     If the information was provided under an express or implied pledge of confidentiality, it may follow that the information is from a confidential source (Jephcott v Secretary, Department of Social Security (1985)[4]).  This is a question of fact that must be determined on the evidence (Hayes v Secretary, Department of Social Security (1996)[5]).  It is a matter for the Agency to establish on the balance of probabilities (Jephcott v Secretary, Department of Social Security[6]).

[4] 8 FCR 85, at 89.

[5] 43 ALD 783, at 785.

[6] Above n 4, at 89-90.

11.     The evidence of Witness A is that the information was provided on the Centrelink internet site, which stated that if the source provided his or her name and address, the information would be treated in confidence.  I am reasonably satisfied that the document in Exhibit R2 is a computer printout of a generic ‘Report a Suspected Fraud’ form on the Centrelink internet site.  In Centrelink’s submission, the particular form has not been changed or modified since 21 January 2007 (before the tip off occurred), as can be seen from the print out of the last field in Exhibit R2.  On that basis, I am reasonably satisfied that the form was available for use on the Centrelink internet site at the time when the ‘tip off’ in question occurred and in all likelihood is the same or similar to the form Witness A used when providing information about Ms Beven.  I so find.

12.     The document sets out information about the confidentiality of information provided: “…it is Centrelink’s policy to keep your identity confidential” “You do not have to provide us with your name and contact details, however if you do, your name and contact details will only be used to enable an investigator for Centrelink the ability to contact you later if further information is required for their investigation”[7].  That information is a pledge of confidentiality.  Even though the actual form the source completed is not in evidence, considering the foregoing, I am satisfied that it is more probable than not that the form used by the source set out this or similar information in relation to confidentiality.

[7] Exhibit R2, pp 9 and 10.

13.     That being so, I am reasonably satisfied and find that Witness A provided information to Centrelink in the manner described on the expectation that his or her identity would remain confidential.  That finding is consistent with the source’s own evidence.  It follows that the information provided is from a confidential source. 

is the information in relation to the enforcement or administration of the law?

14.     Ms Beven receives a pension under the social security law that is administered and paid by Centrelink.  Centrelink regularly reviews the eligibility and entitlements of pension recipients.  Statutory tests are applied.  Information concerning circumstances that may not have been properly declared is relevant to any such review.  The information about Ms Beven provided by the source alleged a fraud in relation to the social security law.  That information is properly classified as relating to the enforcement or administration of the law.  I so find. 

15. It is not disputed that the information was incorrect. However, that does not assist Ms Beven’s case. It does not matter for the purposes of paragraph 37(1)(b) of the FOI Act whether the information is true or false, or whether it was provided in good faith or for some ulterior motive (McKenzie v Secretary, Department of Social Security[8]).  At the time the tip off was made, Centrelink did not know whether the information was true or not.  The information was a matter for further investigation and was found to be incorrect.  Nevertheless, it does not follow that the information did not relate to the enforcement or the administration of the social security law.  It plainly did, even though it was subsequently found to be incorrect. 

[8] Above n 3, at 648-649.

16. Even if the information was provided with malicious intent (and there is no evidence that it was), it does not assist Ms Beven’s case. The motive of the source in providing the information is not a relevant factor when considering whether the information is within the terms of paragraph 37(1)(b) of the FOI Act.

would release of the information in toto disclose the identity of the confidential source?

17.     Plainly the answer to this question is yes. 

18.     In Centrelink’s submission, the information that the source entered into the ‘Report a Suspected Fraud’ form on the Centrelink internet site is captured and reported in the TORS document.  While there is no evidence on this point, I accept that it is so.  In any event, the TORS document sets out the information provided by the source.

19. The TORS document has been released to Ms Beven with deletions made pursuant to s 22 of the FOI Act. It is not controversial that the deleted information is the name and the contact details of the source and the date on which the information was provided to Centrelink.

20.     I am satisfied that release of this information would disclose or point to the identity of the confidential source.

conclusion

21. It follows that the information in question is within the terms of paragraph 37(1)(b) of the FOI Act and is exempt from release to Ms Beven.

22.     The decision under review is affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       ....................................................................
  Jane Gribble
  Associate

Date of Hearing  20 February 2008
Date of Decision  25 February 2008
Representative for the Applicant  Self
Solicitor for the Respondent        Jillian Furner
  Centrelink Legal Services