Boots, J.T. v Minister for Immigration & Ethnic Affairs

[1986] FCA 407

Re: JOHN THEODORE BOOTS
And: DEPARTMENT OF IMMIGRATION AND ETHNIC AFFAIRS
No. G15 of 1986
Freedom of Information

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Freedom of Information - exemption claimed in respect of confidential document under s.45(1) of Freedom of Information Act 1982 - whether exemptions in Part IV of F.O.I Act should be read down in the light of the provisions of Part V of the F.O.I Act conferring rights to amend personal records.

HEARING

SYDNEY

#DATE 16:9:1986

ORDER

The appeal be dismissed.

The decision of the Administrative Appeals Tribunal be affirmed.

The applicant pay the respondent's costs of the appeal.

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

JUDGE1

The applicant migrated to Australia some years ago and subsequently applied for, and was granted, Australian citizenship. On 6 June 1984, he made a request pursuant to s.15(1) of the Freedom of Information Act 1982 ("the FOI Act") for access to documents in the possession of the respondent relating to himself. A decision was made granting the applicant access to all documents that could be found with the exception of part of one document - described as paragraphs 2 and 3 of folio 7 of file No. N80/209427. Exemption was claimed by the respondent in respect of the excepted material in reliance upon s.45(1) of the FOI Act: the respondent claimed that its disclosure would constitute a breach of confidence. The applicant sought review of this decision by the Administrative Appeals Tribunal but, in substance, the Tribunal affirmed the decision. The applicant now seeks to appeal from that decision, pursuant to s.44 of the Administrative Appeals Tribunal Act 1975. Such an appeal may be brought on a question of law only.

1. The disputed material consists of a file note on which an officer of the respondent recorded the effect of a telephone conversation with a third party. It appears that the applicant insisted that the officer speak to the third party because the third party knew the applicant and it was thought by the applicant that the person might be able to assist in the expedition of the applicant's request for citizenship. The Tribunal found that the communication from the third party to the respondent's officer was made "reluctantly and with the express reservation as to (its) being made in confidence". The Tribunal was satisfied that the material contained in the two paragraphs (other than one sentence of paragraph 2 and a clause of paragraph 3 which it considered should be disclosed as not confidential) had "the necessary quality of confidence, and indeed was imparted in circumstances importing an obligation of confidence". The Tribunal was of the opinion that its disclosure would be "an unauthorised use of information to the possible embarrassment of the party communicating it".

2. In his notice of appeal, the applicant raised the following questions of law:
   
   

"(a) Whether the Tribunal misdirected itself as to the meaning and effect of s.45(1) of the Freedom of Information Act 1982 (C'th.), in particular:

(i) by failing to consider whether disclosure to the applicant of the said material would amount to an actionable breach of confidence, and -

(ii) further and alternatively, by failing to consider whether in the circumstances there was a countervailing public interest in the disclosure of the material to the applicant which outweighed the confidentiality of the material.

(b) Whether the Tribunal's written statement of the reasons for its decision complied with section 43(2B) of the Administrative Appeals Tribunal Act 1975, and included its findings on material questions of fact and referred to the evidence or other material on which those findings were based."

1. It is now settled that the exemption dealt with by s.45(1) is wide enough to afford protection from disclosure in circumstances where an action for breach of confidence may not succeed: see Re Witherford and Department of Foreign Affairs (1983) 5 ALD 534 at p 542; Attorney-General's Department v. Cockcroft (1986) 64 ALR 97 at p 107. It follows that the first ground of appeal, which was not sought to be supported in the argument of the appeal, must be rejected.

2. As to the second ground of appeal, it is equally well established that, in applying s.45(1), the Tribunal was not bound to take into account the suggested "countervailing public interest". The authorities are conveniently collected in Re Maher and Attorney-General's Department (1986) 4 AAR 206 at pp 288-9. This ground of appeal, which was not argued, must also be rejected.

3. The third ground of appeal, involving the application of s.43(2B) of the Administrative Appeals Tribunal Act 1975 was not pursued. In my opinion, it is without foundation.

4. In support of the appeal, counsel for the applicant advanced two additional arguments. Although these arguments appear to fall outside the grounds raised by the notice of appeal, the respondent did not object to the course adopted on behalf of the applicant.

5. It was first submitted on behalf of the applicant that the Tribunal failed to give proper weight to the circumstance that the material to which the applicant was seeking access was information about himself. In my opinion, no error of law on the part of the Tribunal in this respect has been demonstrated. The sole question for the Tribunal was whether disclosure of the information would constitute a breach of confidence. In the first instance, this involved an inquiry, one of fact, whether the information in the communication was provided under an express or implied pledge of confidentiality (see Department of Health v. Jephcott (1985) 62 ALR 421 at p 425). The Tribunal found an express reservation of confidentiality. The next step involved the question whether the disclosure of the material would breach the confidence. This required a consideration of the restrictions on communication which were expressed in, or which were properly to be implied from, the terms upon which the confidential material was communicated.

6. It is established that the law does not require "information to be absolutely inaccessible before it can be characterized as confidential...Publication of information to a limited number of persons will not destroy the confidential nature of information" (Gurry: Breach of Confidence, at p.73; Cockcroft, supra, at p.108). It is thus possible that information can be communicated upon the footing that its publication is to be limited to a section only of the public, for instance, the person the subject of the communication. However, there was nothing in the circumstances of the present case to suggest that the confidential information now in question was communicated on the footing that its confidentiality was to be qualified to the extent that it could be communicated to the applicant. There was no such express reservation; moreover, there were no circumstances present which would justify implying such a qualification. It follows that this challenge to the Tribunal's decision should be rejected.

7. Finally, it was contended on behalf of the applicant that the Tribunal fell into error by failing to take into account the operation of Part V of the FOI Act. Specificially, it was submitted on behalf of the applicant that s.45(1) of the Act should be read down in the light of the provisions of Part V and, in particular, s.48.

8. By s.48 it is provided that where a person claims that a document of an agency or an official document of a Minister to which access has been provided to the claimant under the FOI 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. By s.49, provision is made for the form of request for amendment of records. Subsequent provisions deal with the procedures of and consequent upon, a request for amendment of records.

1. In my opinion, the provisions of Part V have no relevance for present purposes.

2. As has been said, the decision sought to be reviewed by the Tribunal was an application for access to a document made pursuant to s.15 which is contained in Part III of the FOI Act. Such an application is quite distinct from, and in no relevant sense related to, any application under Part V for an amendment of a personal record. Moreover, no application under Part V was made or even foreshadowed here. It follows, in my view, that there is no warrant for reading down the provisions of s.45(1) in the manner suggested by the applicant. The statutory right of access to documents conferred by Part III operates independently of any right to amend personal records conferred by the provisions of Part V. It must follow that, since the exemptions contained in Part IV (including s.45(1)) operate independently of the provisions of Part V, those exemptions should not be limited in their operation in any way by the provisions of Part V.

3. The appeal should be dismissed with costs.

4. I make the following orders:
   
   

1. That the appeal be dismissed.

2. That the decision of the Tribunal be affirmed.

3. That the applicant pay the respondent's costs of the appeal.