Bienstein and Commonwealth Ombudsman - [2005] AATA 1227

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 1227
ADMINISTRATIVE APPEALS TRIBUNAL NºV2003/1119,V2003/1267, V2004/874

GENERAL ADMINISTRATIVE DIVISION

Re: HELEN BIENSTEIN
Applicant

And:COMMONWEALTH OMBUDSMAN
Respondent

DECISION
Tribunal:       G.D. Friedman, Senior Member
Date:             13 December 2005
Place:            Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes a decision that charges imposed on the applicant in connection with her requests under the Freedom of Information Act 1982 be remitted in full, and that the applicant be granted access to documents released to her in full or in part by the respondent during the proceedings.

(sgd) G.D. Friedman
Senior Member

FREEDOM OF INFORMATION - documents relating to the handling of the applicant’s FOI request ‑ whether documents exempt from disclosure ‑ effect on operations of agency ‑ personal privacy - internal working documents - adequacy of searches
Freedom of Information Act 1982 s 36(1), 40(1)(d), 41(1), 61
Arnold v Queensland (1987) 73 ALR 607
Re Mann and Australian Taxation Office (1985) 3 AAR 261
REASONS FOR DECISION
13 December 2005  G.D. Friedman, Senior Member
1.      Ms Bienstein sought access to a number of documents concerning her dealings with the respondent arising from proceedings in the Family Court of Australia several years earlier. On 11 November 2003 the respondent affirmed a decision dated 2 October 2003 under the Freedom of Information Act 1982 (the FOI Act) to refuse access to a number of documents held by the respondent (the exempt documents), and to refuse to remit all fees and charges imposed for the processing of the FOI requests.
2.      During the proceedings the respondent released to Ms Bienstein a number of documents in full or in part, and agreed to remit in full all charges imposed for the processing of her request. At the date of the hearing 18 documents, or parts of documents, were claimed to be exempt. These are as follows:

Document No. File Folio Date Description Exemption

1 2003-1977921 66/70 25.03.03 Fax to AFP (telephone number)
s 40(1)(d)

2 71/86 Not dated Draft schedule of documents s 40(1)(d),
s 41(1)

3 88 28.03.03 Internal email (telephone number)
s 40 (1)(d)

4 93 02.04.03 Fax to AFP (telephone number)
s 40(1)(d)

5 96 02.04.03 Fax to AFP (telephone number)
s 40(1)(d)

6 52 08.05.03 Internal email s 36(1)

7 60/63 14.05.03 Internal memorandum s 36(1)

8 173 14.07.03 Internal email (personal comment) s 41(1),
s 36(1)

9 59/60 23.07.03 Internal memorandum s 36(1)

10 61 30.07.03 Internal email (opinion) s 36(1)

11 197 26.08.03 Internal email (personal comment) s 41(1),
s 36(1)

12 206 27.08.03 Internal email (personal comment) s 41(1),
s 36(1)

13 209-212 27.08.03 internal memorandum
s36(1)

14 01.04.03
02.04.03 Internal email (personal comment)
s 41(1)

15 08.05.03 internal email (opinion)
s 41(1)

16 02.06.03 Internal email s 36(1)

17 04.06.03 Internal email (opinion)
s 41(1)

18 Not dated Chronology of events
s 36(1)

3.      The issues before the Tribunal are whether the documents to which access has not been granted should be released to the applicant,…

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 Bienstein and Commonwealth Ombudsman

Details

AGLC: Bienstein and Commonwealth Ombudsman [2005] AATA 1227
Case: [2005] AATA 1227
Decision Date: 13 December 2005

CaseChat Overview and Summary

The case involved Helen Bienstein, who sought access to documents relating to her dealings with the Commonwealth Ombudsman, stemming from earlier proceedings in the Family Court of Australia. The Commonwealth Ombudsman had refused to provide access to certain documents and declined to remit all fees and charges imposed for the processing of Bienstein's requests under the Freedom of Information Act 1982. The Administrative Appeals Tribunal was tasked with deciding whether the documents in question should be released and whether the charges imposed on Bienstein should be remitted.

The legal issues before the Tribunal included whether the documents withheld were exempt from disclosure under the FOI Act, and if so, whether there was an overriding public interest in their disclosure. The Tribunal also had to consider whether the charges imposed on Bienstein should be remitted in full or in part. The exemption criteria under sections 36, 40(1)(d), and 41(1) of the FOI Act were central to the analysis, along with the principles established in Arnold v Queensland and Re Mann and Australian Taxation Office.

The Tribunal found that certain documents containing personal information about agency officers and other complainants were exempt from disclosure due to the substantial adverse effect on the operations of an agency and the unreasonable disclosure of personal information. Internal documents relating to the handling of Bienstein's FOI requests were also deemed exempt as their disclosure would be contrary to the public interest. However, the Tribunal accepted the respondent's agreement to remit in full all charges imposed on Bienstein, given her financial circumstances. The Tribunal concluded that the searches conducted by the respondent to identify relevant documents were adequate, thus upholding the respondent's discharge of its onus under section 61 of the FOI Act.

The Tribunal set aside the decision under review, remitted all charges imposed on Bienstein, and granted her access to documents already released during the proceedings. This decision ensured that Bienstein had access to the documents that were not exempt from disclosure, while upholding the exemptions for sensitive operational and personal information.

Orders