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, and whether relevant charges under the Act should be remitted in full or in part.

SHOULD THE EXEMPT DOCUMENTS BE RELEASED TO THE APPLICANT?

4.      Documents 1, 2, 3, 4 and 5 contain information about the names and direct business telephone numbers of officers employed by the respondent, the Child Support Agency and the Australian Federal Police.  The Tribunal accepts the respondent’s submission that the names and direct telephone numbers of officers of these agencies are not normally released to the public.  Staff members would lose the opportunity to filter their calls and disclosure would create difficulties in the management of workflows and priorities.  In all the circumstances release of the relevant names and telephone numbers …would, or could reasonably be expected to… have a substantial adverse effect on the proper and efficient conduct of the operations of an agency… (s 40(1)(d) of the FOI Act (documents concerning certain operations of agencies). On this basis there is a strong public interest in non-disclosure. The Tribunal is satisfied, after taking into account all relevant considerations, that in this case there is no overriding public interest in disclosure (s 40(2) of the FOI Act) (Arnold v Queensland (1987) 73 ALR 607 at 616; Re Mann and Australian Taxation Office (1985) 3 AAR 261 at 273). Therefore, the relevant parts of documents 1, 2, 3, 4 and 5 are exempt from disclosure.

5.      Documents 2, 8, 11, 14 and 15 contain personal information about other persons, including officers of the respondent and the names of other complainants.  The Tribunal accepts the respondent’s submission that information about the names of other complainants is protected by the secrecy provisions of the Ombudsman Act 1976 and that these complainants would have communicated with the respondent in the expectation of confidentiality. The Tribunal also agrees that information about the workload and commitments of officers of the respondent in the context of those persons’ availability is personal information, the disclosure of which would be unreasonable. In all the circumstances release of the relevant information would involve the unreasonable disclosure of personal information about a person (s 41(1) of the FOI Act) (documents affecting personal privacy). Therefore, the relevant parts of documents 2, 8, 11, 14 and 15 are exempt from disclosure.

6.      Documents 6, 7, 9, 10 (part), 11 (part), 12 (part), 13, 16 and 18 are internal documents of the respondent that contain information about the approach to be taken to Ms Bienstein’s FOI request.  Documents 6 and 7 set out a proposed position to be taken by the respondent in handling the FOI requests, and contain information about the content, context and sensitivity of some documents that ultimately were considered to be exempt from disclosure.  The Tribunal accepts the respondent’s submission that release of the documents:

…

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…(s 36(1)(a) of the FOI Act (internal working documents).

7.      Similarly documents 9, 10 (final paragraph), 11 (preliminary comment),12 (preliminary comment), 13, 16 and 18 contain information about deliberations by officers of the respondent concerning the handling of the FOI requests and set out the thinking processes and suggestions that may or may not have proceeded.  The Tribunal is satisfied that disclosure would be contrary to the public interest because it would create confusion about the decision ultimately made, and would inhibit the respondent in its capacity to explore its position internally in proceedings before the Tribunal.  Therefore, documents 6, 7, 9, 10 (part), 11 (part), 12 (part), 13, 16 and 18 are exempt from disclosure.

SHOULD CHARGES IMPOSED ON THE APPLICANT BE REMITTED?

8.      In respect of the respondent’s decision to impose charges on the applicant in handling her FOI requests the Tribunal accepts the applicant’s evidence about her circumstances, including her financial situation, and agrees with the position adopted by the respondent at the hearing that all charges should be remitted in full.

OTHER MATTERS

9.      The applicant claimed that the respondent had not carried out adequate searches to identify documents relevant to her FOI requests.  The Tribunal takes into account affidavits from Ms V. Brown (Exhibit R1), Mr K. Coughlan (Exhibit R2) and Mr D. Da Silva (Exhibit R3), and is satisfied that officers of the respondent carried out extensive and adequate searches in the respondent’s record management system for relevant documents and that all such documents have been included in the respondent’s response to the FOI requests. 

10. The Tribunal is satisfied that the respondent has discharged its onus under s 61 of the FOI Act that a decision given in respect of the request was justified.

DECISION

11.      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. 

I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd):      Lydia Zozula          

Associate

Dates of hearing:  22 November 2004, 21 November 2005
          Date of decision:  13 December 2005

Advocate for applicant:                Self-represented (22 November 2004; not present 21 November 2005)

Advocate for respondent:            Ms M. Quagliata (21 November 2005)