Bleicher, E.F. v Australian Capital Territory Health Authority

Re: ENID FREDA BLEICHER
And: AUSTRALIAN CAPITAL TERRITORY HEALTH AUTHORITY
No. G1005 of 1988
FED No. 414
Freedom of Information
96 ALR 732/12 AAR 246/20 ALD 625
24 FCR 497

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Freedom of Information - Application to amend copies of affidavits and statements used in previous proceeding before Administration Appeals Tribunal - Previous proceeding concerned with applicant's work capacity and performance - Whether documents are "documents of an agency" - Whether documents contain information concerning the "personal affairs" of the applicant.

Freedom of Information Act 1982, ss.4, 41, 48, 50.

HEARING

SYDNEY

#DATE 13:8:1990

Counsel for the Applicant: J. Chippendall

Solicitors for the Applicant: Daley Colin Quinn and Dwyer

Counsel for the Respondent: R.M. Henderson

Solicitors for the Respondent: Ian Donald Stevens

ORDER

The appeal be allowed.

The matter be remitted to the Administrative Appeals Tribunal to be determined according to law.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal under s.44 of the Administrative Appeals Tribunal Act 1975 calling in question the correctness, in point of law, of a decision made by the Tribunal in connection with an application made under the Freedom of Information Act 1982.

The history of the case goes back to 1982 when the applicant, Enid Freda Bleicher, was employed by the predecessor of the respondent, the Australian Capital Territory Health Authority, as an occupational therapist. She applied for a permanent position but this application was unsuccessful. It appears that, in considering Ms Bleicher's application for a permanent position, the employer had regard to a minute paper on her work history which contained some unfavourable observations and opinions. The applicant was aggrieved by the minute and she made an application to have it amended pursuant to s.48 of the Freedom of Information Act. That section, which is central to the present proceeding, at material times read as follows:
"48. Where a person (in this section referred to as the 'claimant')
who is an Australian citizen, or whose continued presence in
Australia is not subject to any limitation as to time imposed by law,
claims that a document of an agency or an official document of a
Minister to which access has been provided to the claimant under this
Act contains information relating to his personal affairs -
(a) that is incomplete, incorrect, out of date or misleading; and
(b) that has been used, is being used or is available for use by
the agency or Minister for an administrative purpose,
he may request the agency or Minister to amend the record of that
information kept by the agency or Minister."
Ms Bleicher requested that the minute be totally repudiated. This request was refused and the matter came before the Administrative Appeals Tribunal, constituted by Sir William Prentice (Senior Member). During the course of the hearing the dispute was resolved by an agreement that the minute be amended by attaching to it two papers furnished by Ms Bleicher. This agreement was embodied in a formal Tribunal decision made on 23 May 1984.
On 29 September 1985, Ms Bleicher applied to the respondent for access to four documents used at the hearing before Sir William Prentice: two affidavits and two witness statements. The respondent had only copies of these documents - the originals of at least the two affidavits and one statement were in the Tribunal files - but it gave Ms Bleicher access to the copies. On 5 November 1985 Ms Bleicher requested that the documents be amended. In her letter she asked the respondent to acknowledge that one of the affidavits was incorrect and she commented that "perhaps they (i.e. the witnesses) would like to reconsider what they have written". The respondent treated this letter as a request for amendment under s.48 of the Act and refused the request. Ms Bleicher then made a further application to the Administrative Appeals Tribunal, seeking review of that refusal. The case came before Mr B.J. McMahon (Senior Member) who affirmed the respondent's decision.
In his reasons for decision Mr McMahon noted that no oral evidence was given before him. The parties confined themselves to the tender of documents and legal argument. In his reasons for decision he stated the issue in these terms:
"The thrust of the applicant's evidence therefore is to deny the
validity of the opinions expressed about her in the subject
documents to which she had access, and to proffer other and more
favourable comments form other persons on the same subject matter.
On this evidence, the question to be determined is whether the
refusal to amend the subject documents was the correct and preferable
decision for the respondent to make."
Mr McMahon held that no different decision was possible in the circumstances. He gave two reasons.
"My first reason for coming to this conclusion is that the
substratum of facts necessary for the application of s 48 is not
present in that none of the subject documents is 'a document of an
agency' and, in particular, a document of the respondent agency, and
none of the documents therefore is being used or is available for use
by the respondent agency for an administrative purpose."
Mr McMahon commented that, once they were filed in proceedings before the Tribunal, "the subject documents became documents used in the administrative procedures of the Tribunal". He held that it would be appropriate to use s.48 to correct or alter the decision in administrate proceedings by a body other than the agency. He said:
"The applicant, in effect, is now asking that documents tendered in
evidence before proceedings in this Tribunal be altered by the
respondent. Even if such an alteration were possible, the effect of
such an alteration might be to allow those proceedings to be
reopened. Obviously, this would not be in conformity with the
legislative intention of Part V of the Act or of s 43 of the
Administrative Appeals Tribunal Act."
Mr McMahon went on to point out that the authors of the affidavits and statements were liable for cross examination before Sir William Prentice and that, in those circumstances,
"a refusal to amend is not only
preferable, it is legally correct. It is
hard to understand how the respondent
agency could be thought to have power to
amend sworn evidence, given by individual
witnesses in proceedings before this
Tribunal. I was informed by the respondent's
representative that Mr Roberts had been approached
and had emphatically refused his permission to have his
statement amended. I was further informed that both
Sister Mellick and Ms Wild have since retired from the
employment of the respondent and that they are now no longer
in touch with the respondent. Even if they consented to
any proposed specific amendment however, I would consider it
beyond the power of the respondent to make the amendment as the
documents are no longer the subject of the provisions of
s 48 of the Act."
The second reason given by Mr McMahon was that, in any event, the documents fell outside s.48 in that they did not contain information relating to the "personal affairs" of the applicant. After referring to authority McMahon said:
"I have examined the subject documents. They all deal with
attitude, ability to communicate, work related incidents and
matters associated with the pursuit of the applicant's
vocation. It has now been authoritatively determined that
matters such as these can not be regarded as personal affairs.
Accordingly, the necessary basis for the application of s 48
does not exist."
The appellant contends that Mr McMahon erred in law in respect of both of his reasons for refusing her application for review. Her counsel concedes that the course suggested by Ms Bleicher in her letter of 5 November 1985 would be inappropriate. The affidavits and statements set out the evidence of the witnesses. However much Ms Bleicher might dispute that evidence, it would be mischievous to amend that evidence in such a manner as to attribute to the witnesses something which they did not say and with which they might not agree. However, s.50 of the Act provides that, upon receipt of a s.48 application, the relevant agency may amend the document "either by altering the record or by adding an appropriate notation to the record." Counsel submits that Mr McMahon should have considered the possibility of adding an appropriate notation to the record, in much the same way as the parties agreed in the earlier Tribunal proceeding. It is submitted that Mr McMahon failed to consider the desirability of this course because he fell into an error of law in connection with each of his reasons.
As to the first matter, counsel refers to the definition in s.4 of the Act of the phrase "document of an agency" viz. "a document in the possession of an agency ... whether created in the agency or received in the agency." The copies of the affidavits and statments are documents which were either created or received in the agency; accordingly, counsel contends that the definition applies with the result that these documents are amenable to an appropriate s.48 order.
I think that this submission is correct. Mr McMahon found that the original documents were no longer in the possession of the respondent, so no order could be made for their amendment. But the applicant is concerned that anybody reading the respondent's file would obtain an incorrect understanding of her professional capacity and the documents on that file were the copies. Subject to the second point, there would be no reason why an appropriate note should not be added to the copies.
Mr McMahon did not mention the s.4 definition in his reasons. He may not have been referred to it. But, whether or not he was, it seems to me that the definition clearly applies to the copy documents held by the respondent so that relief should not have been refused on this first ground.
The more difficult issue arises out of Mr McMahon's second reason for dismissing the application: that the documents did not relate to her "personal affairs".
The expression "personal affairs", in the Freedom of Information Act has been considered in a number of cases. In News Corporation Ltd v National Companies and Securities Commission (1984) 52 ALR 277 the Full Court rejected a submission that documents dealing with share transactions related to the "personal affairs" of the appellant, within the meaning of s.12(2) (a) of the Act. Bowen C.J. and Fisher J. at p 286, agreed with St John J that the expression "personal affairs" refers only to the affairs of a natural person and not to the affairs of a corporation". St John J, at p 293, said this:
"A corporation, brought into existence for business, can have
business affairs. So too can real persons but, in addition,
affairs relating to family and marital relationships, health or
ill health, relationships with an emotional ties with other real
people."
Shortly after the News Corporation decision, in Re Williams and Registrar of the Federal Court of Australia (1985) 3 AAR 529, Beaumont J, sitting in the Administrative Appeals Tribunal with Mr McMahon and Dr A Renouf, had occasion to consider the same words, where used in s.41(1) of the Act. At p 531 his Honour said:
"In my opinion, the reference in the Act to the 'personal affairs'
of a person was intended to have its ordinary dictionary meaning,
that is to say, to refer to matters of private concern to an
individual. It is not necessary to attempt an exhaustive definition
of the phrase. It will suffice, for present purposes, to say that,
ordinarily, information as to the work capacity and performance of a
person is not private in that sense. It is something observed by
others and commonly discussed by those involved in that work.
Ordinarily, information as to a person's vocational competence is
not something which is treated as confidential. Prima facie at
least, it is not part of his or her 'personal affairs'."
The other members of the Tribunal agreed with the view expressed by Beaumont J.
In Young v Wicks (1986) 13 FCR 85 p 89, Beaumont J, sitting as a member of this Court, adhered to the view which he had expressed in Re Williams. The question in that case was the possible exemption, under s.41 of the Act, of documents relating to the applicant's activities as an aircraft pilot. His Honour commented:
"The applicant, it is true, is the subject
of the documentation but the documents are
concerned exclusively with the public
regulation of air navigation. The result
is that the documents have a public,
rather than a private, character."
The correctness of Beaumont J's approach was an issue before the Full Court in Department of Social Security v Dyrenfurth (1988) 8 AAR 544. The respondent to that appeal as a disappointed applicant for a Public Service position. He sought access under the Freedom of Information Act to documents concerning the selection process but access was refused under s.41, on the ground that it would involve the unreasonable disclosure of information relating to the personal affairs of other persons. The Administrative Appeals Tribunal, rejecting this contention, followed Young v Wicks. Before the Full Court, the Department argued that Beaumont J had taken too narrow a view of the term "personal affairs". At p 549 the Court said:
"In our view, it cannot be laid down by
way of definition that an assessment of
the capacity or previous work performance
of an employee or prospective employee
necessarily contains 'information relating
to the personal affairs' of that person.
Equally, however, it is not permissible to
onstrue the phrase, as the Tribunal
appears to have done, as being incapable
of application to information contained in
an assessment of capacity or work
performance. We do not understand
Beaumont J to have adopted, in Young v
Wicks or Re Williams, any such rigidly
exclusionary interpretation of the phrase.
In the former case, his Honour, on an
examination of Aviation, found, as a matter
of fact, that none of them contained
information 'referring to matters of
private concern to the applicant as an
individual'. That he found it necessary
to undertake such an examination at all
argues strongly against the view that his
Honour considered that the departmental
documents in that case were, by
definition, incapable of containing
'information relating to the personal
affairs of the applicant'."
The Court then referred to Re Williams, pointing out that, in that case, Beaumont J had been "at pains to disavow any attempt to define what the phrase necessarily excluded." Their Honours quoted the passage which I have set out above, calling attention to Beaumont J's repeated use of the word "ordinarily" and the phrase "Prima facie at Least". Their Honours saw these words as an acknowledgment by Beaumont J that "some assessments of work capacity and performance or vocational competence", though this was exceptional, "would ontain information relating to the personal affairs of their subjects". After referring to what was said by St John J in News Corporation , the Full Court concluded, at p 550:
"It is sufficient for present purposes to
indicate our view that information
relating to the personal affairs of a
person such as information concerning his
or her state of health, the nature or
condition of any marital or other
relationship, domestic responsibilities or
financial obligtations may legitimately be
regarded as affecting the work
performance, capacity or suitability for
appointment or promotion of that person.
In those circumstances, it is conceivable
that an assessment of work performance,
capacity or suitability for appointment or
promotion might contain such information.
If it did, it would be necessary to
consider whether disclosure of that
information would be unreasonable so as to
render the assessment an exempt document
by virtue of s41(1) of the FOI Act."
The members of the Full Court, in Dyrenfurth, plainly did not consider that they were over-ruling the view which Beaumont J had expressed in Re Williams and in Young v Wicks. They accepted that, ordinarily, statements in documents which relate to a person's work performance or capacity do not constitute information regarding that person's "personal affairs". But they pointed out that, upon some occasions, such documents may contain information would be unreasonable so as to render the assessment an exempt document by virtue of s41(1) of the FOI Act."
The members of the Full Court, in Dyrenfurth, plainly did not consider that they were over-ruling the view which Beaumont J had expressed in Re Williams and in Young v Wicks. They accepted that, ordinarily, statements in documents which relate to a person's work performance or capacity do not constitute information regarding that person's "personal affairs". But they pointed out that, upon some occasions, such documents may contain information of a personal nature, of which they gave examples. It was not possible to say that, because a document related to work performance or capacity, it was necessarily not a document containing information about somebody's "personal affairs". But they pointed out that, upon some occasions, such documents may contain information of a personal nature, of which they gave examples. It was not possible to say that, because a document related to work performance or capacity, it was necessarily not a document containing information about somebody's "personal affairs". If the document did contain such information, the question would arise under s.41 of the Act whether it was unreasonable to disclose that particular information; although, ordinarily, there would be no problem about the disclosure of the remainder of the information in the document: see s.22 of the Act. Also, the document would be one to which s.48 applied, so that the applicant would be entitled to request an amendment of the information relating to his or her personal affairs.
Accordingly, it is critical to determine whether a document the subject of a s.48 request contains information relating to the applicant's personal affairs. The document's contents must be onsidered; it is not enough merely to characterise it as dealing with a person's work performance or capacity.
Mr McMahon did examine the documents. His description of their subject - "attitude, ability to communicate, work related incidents and matters associated with the pursuit of the applicant's vocation" - suggests that it is unlikely that they contain material which may properly be described as information concerning Ms Bleicher's "personal affairs". But, as the Full Court held in Dyrenfurth, matters related to the pursuit of a vocation and "personal affairs" are not necessarily mutually exclusive categories. Mr McMahon's decision in this case was made before the Full Court decision in Dyrenfurth. Consequently, Mr McMahon did not have the benefit of the remarks made in that case. If he had, it is unlikely that he would have said that the matters which he listed "cannot be regarded as personal affairs". The more correct statement, according to Dyrenfurth, is that such matters ordinarily will not constitute "personal affairs" but may do so in exceptional cases.
It seems to me that, through no fault of his own, Mr McMahon applied the wrong test in considering whether the subject documents fell within the expression "personal affairs". This was an error of law. Whether it will affect the ultimate result of Ms Bleicher's application I do not know, but the applicant is entitled to have the proper test applied to her case. Accordingly, the decision of the Tribunal ought to be set aside and the case remitted for further hearing according to law.

I see no difficulty about Mr McMahon dealing with the matter upon its remission. It may be that neither party would wish to tender further evidence and that the appeal can be disposed of upon the basis of further submissions made by the parties.
I will hear counsel on the subject of costs.

[1990] FCA 414

13 AUGUST 1990