City of Unley v Warnecke No. Dcadd-03-444

CITY OF UNLEY v WARNECKE
[2004] SADC 48
Judge Anderson
Civil

This Appeal is brought pursuant to s39A of the Freedom of Information Act 1991 (“the Act”). It provides for the right of appeal from a direction by the Ombudsman to the agency to make a determination pursuant to s39(3)(b) of the Act. Such an appeal is only by leave of this Court on a question of law.
It was agreed that the application for leave and the appeal proper should be heard together. Mr Roder of counsel appeared for the Appellant and Ms Paulson for the Respondent.
The chronological history may be briefly set out. On 1 November 2002 the Respondent made a request of the Appellant pursuant to s12 of the Act. The Appellant issued its replying Determination on 21 November 2001 and declined to produce all documents sought by the Respondent who, on 3 December 2002, requested an internal review by the agency. The Appellant advised the Respondent of the result of that internal view on 17 December 2002. Thereafter, the Respondent sought an external review by the Ombudsman pursuant to s39 of the Act. By that review, which was published on 24 July 2003, the Ombudsman directed that previously exempted documents, both in whole and in part, be provided to the Respondent. This direction prompted the instant appeal.
Subsequent to the filing of an Amended Notice of Appeal on 20 October 2003 in relation to the documents referred to by the Ombudsman, the Appellant reconsidered its position and, as a consequence, only one, document 8, remains in issue. That sole document is the subject of this appeal.
The legislative background to the conduct of the Appeal is to be found both in the Act and also in s42E of the District Court Act. That section is in these terms:
“(1)The Court must, on an appeal, examine the decision of the original decision‑maker on the evidence or material before the original decision‑maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)The Court, on an appeal-
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reason.”
Consequently, this section requires the Appellant to satisfy the Court that there are cogent reasons for departing from the Ombudsman’s decision before it may be successful. That section, however, has not been altered in anyway to accommodate the insertion into the Act in 2001 of s39A. That section is in these terms:
“(1)Where the Ombudsman or the Police Complaints Authority has, on a review under this Part, directed an agency to make a determination under Division 1, the agency may, by leave of the District Court, appeal against the direction to the District Court on a question of law.
(2)Proceedings under this section must be commenced within 30 days after notice of the direction to which the proceedings relate is given to the agency.
(3)The agency and the applicant for the review (the “respondent”) are the parties to proceedings under this section.
(4)The Court must, in proceedings under this section, order that the agency pay the respondent’s reasonable costs.”
Consequently, it is necessary for the Appellant to point to an error of law by the Ombudsman, in this instance, before leave to appeal may be granted. The onus to establish such error lies with the Appellant. Once such an error has been established, then the conduct of the appeal may proceed in accordance with s42E of the District Court Act.
The Respondent emphasised that this Appeal must be conducted having regard to the provisions of s3 of the Act which sets out its objects. In particular, Ms Paulson relied upon sub-section (3) which is in these terms:
“It is the intention of Parliament-
(a)that this Act should be interpreted and applied so as to further the objects of this Act; and
(b)that the administrative discretions conferred by this Act should be exercised, as far as possible, so as to facilitate and encourage the disclosure of information of a kind that can be disclosed without infringing the right to privacy of private individuals.”
These objects are relevant to a consideration of the bases upon which access to document 8 was initially refused by the Appellant, should it succeed in obtaining leave to appeal.
S20(1)(a) of the Act is in these terms:
“An agency may refuse access to a document-
(a) if it is an exempt document;”
Exempt documents are dealt with in Schedule 1 of the Act. The relevant clauses are set thereout hereunder:
“6(1)A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead).
6(3a) A document is an exempt document if it contains matter-
(a)consisting of information concerning a person who is presently under the age of 18 years or suffering from mental illness, impairment or infirmity or concerning such a person’s family or circumstances, or information of any kind furnished by a person who was under that age or suffering from mental illness, impairment or infirmity when the information was furnished; and
(b)the disclosure of which would be unreasonable having regard to the need to protect that person’s welfare.”
In relation to document 8, on 24 July 2003 the Ombudsman directed the Appellant to make another determination providing for disclosure of:
“all matter recorded in document 8 with the exception of the address at the conclusion of the document which I consider may be claimed to be exempt under Clause 6(1) of Schedule 1 of the Act” (para 61).
In so doing, the Ombudsman was acting upon his conclusion as to the exempt status claimed by the Appellant in relation to document 8. This exempt status was claimed pursuant to Clauses 6(1) and 6(3a) of Schedule 1 of the Act.
It seems that he has determined that document 8 does not contain information concerning the “personal affairs” of the author as that phrase is defined in the Act. There is no indication that he has had any regard to the alternative submission made by the Appellant in its written submission to him based upon Clause 6(3a) of Schedule 1 in relation to document 8.
In paragraph 60 of his external review, (which is annexure KAS5 to exhibit P2), the Ombudsman said of document 8:
“This document can be classed in the same category as document 2 and parts of 3, and I refer to my comments previously in relation to council’s claims. The only information which may be classed as exempt under clause 6(1)(a) is the complainant’s personal address at the conclusion of the document.”
Insofar as his conclusion refers to document 2, no consideration was there given to Clause 6(3a) by the Ombudsman in relation to that document: (para 43 of KAS5).
In relation to document 3, the Ombudsman referred to Clause 6(3a)(b) but in an entirely different context. There is no similarity between documents 3 and 8 such as to link his conclusion as to document 3 with document 8: (para 51 of KAS5).
Consequently, in my opinion, the Ombudsman has failed properly to identify and consider the issue upon which the Appellant relied in its submission to him insofar as it relied upon Clause 6(3a) in relation to document 8. The failure so to do is an error of law: Craig v The State of South Australia (1994-95) 184 CLR 163.
It having been established that an error of law exists, leave to appeal must be granted. This will enable the status of document 8 to be considered anew. No further material was sought to be brought forward.
It is convenient to first consider the Appellant’s submission in relation to Clause 6(3a) upon which basis it was said that document should be exempt. That submission is in these terms:
“Exemption is claimed under Clause 6(3a)(a) and (b) as the document concerns the circumstances of people who suffer from “mental illness, impairment or infirmity” .....” (annexure KAS6 to exhibit P2 - page 11).
I have read document 8.
In my opinion, the first paragraph of page 2 of document 8 contains information “concerning a person who is presently ..... suffering from a mental illness, impairment or infirmity” such as to enliven the force and effect of Clause 6(3a).
I am further of the view that it would be unreasonable to disclose that information “having regard to the need to protect that person’s welfare”: Clause 6(3a)(b).
Both subclause (a) and subclause (b) apply further than was submitted by Mr Roder as, in my opinion, the second sentence of that paragraph is also within the scope of subclause (a) and is to be protected by virtue of subclause (b).
Were there nothing further, then I would order the release of document 8 with this paragraph deleted in accordance with the Act.
However, once leave is granted, I am able to also entertain submissions as to the Ombudsman’s final order in relation to the whole of document 8, having regard to the submission made to him based upon Clause 6(1).
The Appellant claimed exemption pursuant to this clause on the basis that the contents of the document concern the personal affairs of the author (page 11 of KAS6).
In his external review the Ombudsman concluded as to this submission in para 60, as I have earlier set out.
Insofar as the Appellant agency there relied upon the exemption provided for in Clause 6(1), the Ombudsman placed the document in the “same category as document 2 and parts of document 3” (para 60).
In relation to document 2 the Ombudsman found that the information therein related to the “employment affairs of the author”. On that basis the document was held not to be exempt under Clause 6(1) (para 43 of KAS5).
In relation to document 3, again it was held to concern the “employment affairs” of the author except for a small portion concerning personal affairs as the Ombudsman found for document 8 in para 61 (para 51 of KAS5).
“Personal affairs” is defined in s4 of the Act in these terms:
““personal affairs” of a person includes that person’s-
(a)     financial affairs;
(b)     criminal records;
(c)     marital or other personal relationships;
(d)     employment records;
(e)     personal qualities or attributes;”
Counsel were agreed as to the accepted scope of the phrase “personal affairs”.
Ms Paulson referred me to the decision of Williams v The Registrar of Federal Court of Australia (1985) 8 ALD 219 at 222, where Beaumont J said:
“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, therefore, 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”.”
Both counsel also referred me to the decision of Re: Subramanian and Refugee Review Tribunal (1997) 44 ALD 435 at 43 where the Tribunal said on this topic:
“In my view, the new definition has not rejected any notion that work related comments cannot be personal information. In some circumstances, they can be. It is possible that some material relating, for example, to a person’s work performance may constitute personal information ... it is equally possible that this type of information does not fall within the terms of the definition. In other words, the two categories are not mutually exclusive. Again, with respect, I agree with the observations of Senior Member Beddoe in Cook¹ at 27: Even if it be correct to characterise information about an employee’s work environment as personal information, which I do not accept, it would, in my view, not be unreasonable to disclose that information.”
I am far from convinced that what is contained in document 8 and referred to by the Ombudsman as relating to the author’s “employment affairs” (if that phrase is included in the phrase “employment records” - which I do not decide) is therefore not able to be also information concerning the personal affairs of the author.
As was held in Re: Anderson (1986) 4 AAR 414 “personal affairs” is “an expression inherently incapable of precise or exhaustive definition” (p430).
Document 8 is not a document concerned with the author’s employment record, formal or informal. It does not discuss mundane matters of employment. It is, however, a document concerned with the personal qualities and attributes of the author and consequently, in my opinion, concerns the personal affairs of that person in a broad sense.
Would then its disclosure be unreasonable?
It is accepted by counsel that the appropriate test is as set out in Re: Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257 at 259 where the Tribunal said:
“Whether a disclosure is ‘unreasonable’ requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what section 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.”
When I consider the matters there enumerated, I conclude that the information in the document is old information concerning the author’s subjective views of certain matters in which that person was involved. The author has obtained this information from personal experience and has processed it subjectively. As such, I am of the opinion that it is not information which the author would wish to have disclosed. As the information relates to events which, at this time, are several years old, it has no current relevance. In my opinion, for those reasons, it would be unreasonable to require disclosure.
I order that leave to appeal be granted and that the direction of the Ombudsman in relation to document 8 be set aside and that the Appellant’s determination of the document as exempt pursuant to Clause 6(1) be reinstated.

[2004] SADC 48

12 March 2004