Burgess; Secretary Department of Veterans' Affairs and (Freedom of Information)

[2018] AATA 2897

Burgess; Secretary Department of Veterans' Affairs and (Freedom of Information) [2018] AATA 2897 (8 August 2018)

Division:Freedom of Information Division

File Number(s):2017/1574      

Re:Secretary Department of Veterans’ Affairs  

APPLICANT

Chris BurgessAnd  

RESPONDENT

And  Veterans’ Indemnity and Training Association Inc.

OTHER

Tribunal:                Deputy President Ian Hanger AM QC

Date:  8 August 2018

Place:                   Canberra

DECISION

The Tribunal affirms the decision under review.

................................[sgd]........................................

Deputy President Ian Hanger AM QC

Catchwords

FREEDOM OF INFORMATION – professional indemnity insurance - policy schedule – exempt document – breach of confidence – quality of confidentiality - detriment – unauthorised disclosure.

Legislation

Freedom of Information Act 1982 ss 45(1), 55K, 57A, 93A

Cases

Attorney-General v Guardian Newspapers Ltd. (No2) [1990] 1 AC 109 at 281
Beneficial Finance Corp Ltd and Others v Price Waterhouse (1996) 68 SASR 19 at 42.
Commonwealth Bank of Australia v CAN 076848112 Pty Ltd [2015] NSW SC 666 at [23]
Re A J Benjamin Ltd (in liq) [1969] 2 NSWLR 374 at [376]
Re Prinn and Department of Defence (2016) 152 ALD 162
Wheatley v Bell [1982] 2 NSWLR 544

Secondary Materials

REASONS FOR DECISION

Deputy President Ian Hanger AM QC

8 August 2018

1. This is an application under s57A of the Freedom of Information Act 1982 (the Act) to have this tribunal review a decision of the Information Commissioner. The Commissioner decided that a particular document, namely the schedule to a policy of insurance (excluding the particulars of premiums) issued on 24 November 2014 by CGU Insurance Ltd, is not an exempt document under the provisions of s55K of the Act.

   The Facts

2. As the facts are not in dispute, I will set them out using the parties’ statement of facts, issues and contentions.

3. The Veterans Indemnity and Training Association (VITA) is an association of ex-servicemen’s organisations (ESOs) and other groups.  It was established to do all things appropriate to foster the training and professional standards of ESO practitioners, including, but not limited to, the obtaining and maintaining of professional indemnity insurance cover for such practitioners. VITA is partially funded by the Department of Veterans Affairs (the Department) and the Department partially funds its professional indemnity insurance and provides advice to VITA.

4. The document in issue in these proceedings is the policy schedule to the professional indemnity insurance policy held by VITA for the period 30 November 2014 to 30 November 2015.  The Department contributed a partial payment for the premium for this policy to VITA, but it is not a policyholder and does not receive any direct cover or benefit from the insurance.

5. The Department requested a copy of the document from VITA.  It was not standard practice for VITA to provide copies of its policies to the Department but it complied with that request.  It is common ground that the document was provided by VITA and received by the Department with the expectation and understanding that it would remain confidential to those officers of the Department who had a need to have access to it.  VITA has not authorised the Department to disclose the document in issue to any third party and it has not done so.

6. The respondent, Mr Burgess, in fact has a copy of the complete document because he received it in his capacity as an agent of the RSL, but the circumstances in which he received it mean that he is not entitled to disclose the document in an unrestricted way. He inherited the obligation of confidence held by the RSL.[1]

   [1] Attorney-General v Guardian Newspapers Ltd. (No2) [1990] 1 AC 109 at 281.

7. The document is a Policy Schedule dated 24 November 2014.  It specifies the:

   ·Policy holders

   ·Period of insurance

   ·Premium amount

   ·Particulars of risk and a number of endorsements.

8. Mr Burgess has advised that he does not seek details of the premium amount.

   The Issue

9. The issue for determination is whether the document, the schedule to the insurance policy (with the premium amounts redacted), is exempt from release pursuant to the provisions of s 45(1) of the Act which provides:  A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency of the Commonwealth), for breach of confidence.

10. Under s93A of the Act the Information Commissioner may issue guidelines for the purposes of the Act.  Those guidelines are important and I must have regard to them[2] but they are simply guidelines. There is no suggestion that they should not be applied in the present matter.  The guidelines relevant to s45 provide that the following five criteria must be satisfied to found an action for breach of confidence:

    (a)       the information must be specifically identified;

    (b)       it must have the necessary quality of confidentiality;

    (c)it must have been communicated and received on the basis of a mutual understanding of confidence;

    (d)       it must have been disclosed or threatened to be disclosed, without authority; and

    (e)       unauthorised disclosure of the information has or will cause detriment.

    [2] Re Prinn and Department of Defence (2016) 152 ALD 162.

11. I will deal with these in turn:

    (a)       the information has been specifically identified;

    (b)does it have the necessary quality of confidentiality? Policies of insurance are commercial documents. They are generally confidential[3] and both parties frequently have an interest in the details of the insurance not being disclosed.  Perhaps the best example of this is the situation in which a plaintiff sues a defendant for a large sum of money and knows that the defendant has few assets to satisfy a judgement. The plaintiff would therefore like to know if there is an insurance company standing behind the defendant.  Understandably, the insurer may prefer that the existence of insurance is not known to the plaintiff. A plaintiff seeking to decide whether to sue an insolvent company may similarly want to know if the company is insured for the alleged losses.[4] From their point of view, insurers see the knowledge of the existence of an insurance contract as being a “magnet for claims” because plaintiffs perceive a chance of recovery from a party who is insured.[5] That is a concern that has been expressed in submissions by VITA.

    Given the fact that insurance premiums do not change a great deal from year to year, it stands to reason that rival insurance companies would be interested to know the terms of each other’s policies, and in particular the premiums charged. I am satisfied that generally speaking, the fact of insurance, the terms of the policy, and the schedule to an insurance policy does have the necessary quality of confidentiality. There are exceptions, but a desire to know is not one of them. I am satisfied that the schedule to the policy has the “necessary quality of confidentiality”.

    In the present case of course there has been no issue raised about the body of the policy as distinct from the schedule. I am only concerned with the schedule  (redacted as to premiums).

    (c)There is no issue between the parties that the document was communicated and received on the   basis of a mutual understanding of confidence.[6]

    (d)The applicant is seeking to disclose it without the authority of VITA or the Department.

    (e)Would the disclosure of the schedule cause detriment to the parties to the insurance contract? If Mr Burgess is successful in his application there are no restrictions on the way in which he may use the document and furthermore the document becomes publicly available on the Department’s website. That is also a matter of concern to VITA. That organisation submits that the publication could have the effect of attracting or shaping claims against the insureds once their insurance details are well known. That is unlikely.  Indeed, it would be surprising if the organisations, their employees and volunteer workers did not believe that they were covered by a policy of insurance of this general nature.

    [3] Commonwealth Bank of Australia v CAN 076848112 Pty Ltd [2015] NSW SC 666 at [23].

    [4] Re A J Benjamin Ltd (in liq) [1969] 2 NSWLR 374 at [376].

    [5] Beneficial Finance Corp Ltd and Others v Price Waterhouse (1996) 68 SASR 19 at 42.

    [6] Wheatley v Bell [1982] 2 NSWLR 544.

12. The document involved is dated 24 November 2014. It is more than 2½ years old. It is no longer current. The applicant has agreed to the redaction of the premiums being charged. I am satisfied that its disclosure would cause no detriment whatsoever to the Department, or to VITA, or to the insurer.

13. The decision of the Australian Information Commissioner dated 6 February 2017 is affirmed.

12.     I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of  Deputy President Ian Hanger AM QC.

…………………[sgd]…………………………
Associate

Dated: 13 August 2018

Date of hearing:	6 August 2018
Solicitors for Applicant:	Australian Government Solicitor
Solicitors for the Respondent:	Cleary & Lee Pty Ltd
Other Party	Self represented