Confidential and Secretary, Department of Veterans' Affairs

[2008] AATA 741

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 741

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0532

Veterans' DIVISION		)
Re		Confidential

Applicant

And Secretary, Department of Veterans' Affairs

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member

Date22 August 2008

PlacePerth

Decision The Tribunal affirms the decision under review.

.......(sgd) Mr A Sweidan.............

Senior Member

CATCHWORDS

Freedom of Information - release of documents - documents in public domain or not containing information relating to applicant or which can be released with deletions - decision under review affirmed

LEGISLATION

Freedom of Information Act 1982 (Cth)

CASES

Hammal and Department of Veterans’ Affairs (2007) AATA 1946
Colakovski v Australian Telecommunications Corp (1991) 23 ALD 1
Vangel Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429

REASONS FOR DECISION

22 August 2008	Mr A Sweidan, Senior Member
BACKGROUND

1. The decision under review is a decision by an internal reviewer of the Department of Veterans' Affairs dated 10 January 2008 which modified a previous reviewable decision made under s.23 of the Freedom of Information Act 1982 (FoI Act) to exempt various documents from release (T2, p.3/T7, p.102).  The applicant wishes to retain the exemptions granted by the primary decision-maker.

HISTORY

2.      On 12 October 2007 a request was made by a person (“the Requestor”) for a copy of the files held by the Department of Veterans’ Affairs (“DVA”) relating to the late Geffrey Gregg.  This request was treated as an application under the FoI Act for access to these documents.  In undertaking his review of the material that was within the scope of the request, the primary decision-maker ascertained there were documents on Mr Gregg’s files which contained personal information on, or relating to, the applicant.

3.      As required under s.27A of the FoI Act, on 26 October 2007 a letter was sent to the applicant seeking her view on the potential disclosure of the material relating to herself (T3, p.96).  On 12 November 2007 the applicant contacted the primary decision-maker to advise that she did not give consent for the release of any documents currently held on the files relating to Mr Geffrey Gregg.  On the same day she confirmed this view in a letter (T4, p.98).

4.      On 20 November 2007 a decision was made in relation to the request for all the documents on Mr Gregg’s files – the decision-maker exempted all the documents relating to the applicant.  On 27 November 2007 a request was made by the Requestor for the review of the decision on the exempt material relating to the applicant.  On 7 January 2008 the internal reviewer consulted the applicant on these documents (T5, p.99).  On 10 January 2008 the applicant advised inter alia that

my standing on the issue has not changed and I do not give consent
for any documents that are currently held on the files relating to Mr Geffrey Gregg to be released.

(T6, p.101 – emphasis in letter)

5.      The internal reviewer considered that certain documents could be released, while others could be released with deletions as permitted under s.22 of the FoI Act and, on 10 January 2008:

oThe Requestor was advised of the review decision and that the documents would not be released until the applicant had the opportunity to consider and to pursue any review by this Tribunal.

oThe applicant was advised of the decision, provided with a schedule of the documents noting those which had been considered appropriate for release in full or in part, and informed of her right to seek review by this Tribunal (T2, p.3/T7, p.102).

6.      On 11 February 2008 the applicant lodged an application for review of the decision to release some of the documents considered as exempt by the primary decision-maker (T1, p.1).

Legislation

7.        The following provisions of the FoI Act are relevant to this matter:

Section	Contents
4	Interpretation – “personal information”
11	Right of access
15	Requests for access
18	Access to be given to documents on request
22	Deletion of exempt matter or irrelevant material
23	Decisions to be made by authorised persons
27A	Procedure on request in respect of documents containing personal information
41	Documents affecting personal privacy
59A	Review of certain decisions in respect of documents containing personal information

All references to sections which follow are to the FoI Act.

Applicant’s contention

8.The applicant’s contention can be stated briefly:

oShe does not consider any of the documents on the files of the late Mr Gregg, not just those relating to herself, should be released.

Respondent’s contentions

9.The respondent contends:

oThis request is properly before the Tribunal having been internally reviewed in accordance with s.59A.  The applications for review have been within the period required by the FoI Act.

oThe primary decision-maker and the internal reviewer are both authorised to make decisions on applications and requests for internal review (s.23).

oThe definition of “personal information” in s.4 of the FoI Act applies to this application – that is,

Personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained from the information or opinion

oThe application by the Requestor for access to Mr Gregg’s DVA records is consistent with the right to access records in s.11 of the FoI Act and it was appropriately made as required by s.15.

oAccess to Mr Gregg’s personal records has been provided to the Requestor as required by s.18, as no exemptions applied to these documents.

oAll material relating to the applicant has been withheld from the Requestor, both in the primary decision relating to the request and the internal review pending resolution of this application for review – this includes the material which the internal reviewer considered could not be exempted and/or to which s.22 applied.

oThe procedure required in s.27A in relation to the applicant’s personal information has been followed that is, there has been consultation on the possible release of this information.

oThe provisions of s.41 have been applied to those documents which contain the applicant’s personal information and the release of which would affect her personal privacy.

10.The respondent contends that the basis for release, either in full or in part, of

the documents noted in the schedule (T7, p.103) is that they are documents in the

public domain which;

odo not contain information relating to the Applicant; and/or

ocan be released with deletions.

11.      The respondent contneds there is a threshold issue to be determined in this matter:

oHow broadly and specifically in relation to this application, should the term “personal information” be interpreted?

12.      In the matter of Hammal and Department of Veterans’ Affairs (2007) AATA 1946 (13 November 2007) Senior Member Isenberg of the Tribunal took a very narrow view as to what should be withheld from the applicant. She noted in relation to the release of personal information:

“38.     Some of the documents relied on under this exemption were witness

statements, both signed and unsigned versions. I consider that        disclosure of the name of a person who had made the statement, given           that the information in the statement may have been used in coming to a decision to consider the revocation of Mr Hammal’s TPI, not to be     unreasonable.  In this regard I note Colakovski v Australian            Telecommunications Corp (1991) 23 ALD 1, where Lockhart J said at 7:

… ss 41(1) and 12(2) of the FOI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not. For example, a document may contain statements about a person's private life in the sense of his personal life which is widely known in various sections of the community. Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person's “personal affairs”. Such a document would therefore prima facie answer the description of one which relates to the “personal affairs” of a person within s 41(1).

39.It is unreasonable, however, to include personal particulars about the person, for example a home address, service number, occupation and age range.”

13.      In the Hammal matter the Tribunal was minded to provide as much material as possible to assist Mr Hammal in pursuing the reinstatement of his disability pension. 

14.      In this matter, the respondent acknowledges that the same principle or approach may not be warranted to ensure the applicant’s privacy or, more particularly, whether it is in the public interest to release the information relating to the applicant.  The Requestor has obtained the desired information on Mr Gregg and, it is arguable, there is no basis for seeking any information relating to the applicant. 

15.      In Vangel Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 Lockhart J, with whom the other members of the Full Federal Court concurred, stated:

For myself I prefer the view that the “personal affairs” of a person within the meaning of s. 41(1) and 12(2) of the FOI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not.  For example, a document may contain statements about a person’s private life in the sense of his personal life which is widely known in various sections of the community.  Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person’s “personal affairs”.  Such a document would therefore prima facie answer the description of one which relates to the “personal affairs” of a person within s.41(1).  Whether any disclosure of the information would be an “unreasonable disclosure” within s.41(1) is a different question.  If something is notorious about a person and recorded in a document, this may provide in a given case cogent evidence to justify the finding that its disclosure would not represent an “unreasonable disclosure” of the information; but that is a different question from the first question of what constitutes information relating to the “personal affairs” of a person.  I agree with the Full Court in Dyrenfurth that it would be inappropriate to attempt to define the meaning of “personal affairs” in some definitive way.  It would be unwise to substitute for the word “personal” some other word such as the word “private” because one generally accepted meaning of the word “private” is confidential or not widely known.  In my opinion a person’s affairs may be personal to him notwithstanding that they are not secret to him. (436.3 – emphasis added)

16.      In relation to unreasonable disclosure His Honour stated:

The object of the Act, as expressed by s.3, is to give the “Australian community” the right of access to information in the possession of the Australian Government.  What is “unreasonable” disclosure of information for purposes of s.41(1) must have as its core public interest considerations.  The exemptions necessary for the protection of “personal affairs” (s.41) and “business or professional affairs” (s.43) are themselves, in my opinion, public interest considerations.  That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents.  The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided the other conditions mentioned in sections 41 and 43 are satisfied.  An examination of the other provisions of Part IV of the Act concerning exempt documents confirms this approach. (438.4)

Tribunal’s Findings

17.      In this matter the primary decision-maker considered that all the information relating directly or indirectly to the applicant should be exempted from release.  At the internal review it was considered that there were documents which could be released. Therefore there appear to be two related issues on the release of information in this instance:

owhat, if anything should be released; and

oif material is to be released, should the set or sequence of documents in which the applicant’s personal details are shown be exempted or just those parts which specifically contain a reference to the applicant.

18.      The applicant apparently contends that it would not be in the public interest to release any of the material. 

19.      The Tribunal is of the opinion that the applicant’s contention as to the public interest cannot be sustained and that it is appropriate to adopt a broad interpretation of what can be released (as in Hammal). The Tribunal gives the following decision and reasons as the basis for release, or for full or partial exemptions on the documents contained at T2, pages 8-95. (These documents are those noted in the schedule at T2, p.4, however, the T Doc. page reference is used to avoid confusion):

Page	Date	Description of contents	Decision	Reasons
8	17.04.07	Authorisation to provide records and/or advice	Exempt in full s.41(1)	Would disclose the applicant’s personal information
9–10	11.05.07	Email from K Forster to C Thomas	Release in part (release p.10) s.41	Release of p.9 would disclose the applicant’s personal information
11–29	22.03.07	Letter from M Abbott to R Giblet with determination attached	Deletion – s.22 Exemption in full s.41(1) Exemption in full s.41(1) Deletion – s.22	o  p.11:  deletion of the applicant’s name would remove her personal information o  p.12:  exempt as it contains personal information o  p.13/14:  release – no personal information o  p.15/16:  personal information o  p.17/20:  deletion of the Applicant’s name would remove her personal information
21	22.03.07	File note	Exempt in full s.41(1)	Would disclose the applicant’s personal information
22	15.03.07	Letter with attachments from M Abbott to Prof. Kosky	Exempt in full s.41(1)	Would disclose the applicant’s personal information
23–25	Undated	Summary of relationship	Exempt in full s.41(1)	Would disclose the applicant’s personal information
26	19.03.07	Minute from D King to M Abbott	Exempt in full s.41(1)	Would disclose the applicant’s personal information
27	22.12.06	Letter from S Woodyard to the Applicant	Exempt in full s.41(1)	Would disclose the Applicant’s personal information
28	19.10.06	Letter from D King to the Applicant	Exempt in full s.41(1)	Would disclose the applicant’s personal information
29–32	09.03.07	Summary of dependent status and folio references	Exempt in full s.41(1)	Would disclose the applicant’s personal information
54–64	10.10.06	Claim for funeral benefit with attachments	Exempt in full s.41(1) Deletion – s.22 Exempt in full s.41(1) Deletion – s.22	o  p.33:  release – no personal information o  p34/35:  exempt as it contains personal information o  p.36:  deletion of the applicant’s name would remove her personal information o  p.37:  release – no personal information o  p.38:  release as document in public domain o  p.39:  exempt as it contains personal information o  p40/42:  release – no personal information o  p.43:  deletion of the applicant’s name would remove her personal information
44–51	Various	Letters and documents from the applicant	Exempt in full s.41(1)	Would disclose the applicant’s personal information
52-54	03.11.06	Email from the applicant to M Abbott including    e-mail from Mr Gregg	Exempt in full s.41(1)	Would disclose the applicant’s personal information
55-57	24.10.06	Letter with attachments from M Abbott to the applicant	Exempt in full s.41(1)	p.55:  exempt as it contains personal information o  p.56/57:  release – no personal information
58–59	17.10.06	Facsimile from the applicant	Exempt in full s.41(1)	Would disclose the applicant’s personal information
60–61	13.10.06	Letter from M Abbott	Deletion – s.22	Deletion of the applicant’s name would remove her personal information
62–70	13.10.07	Claim for pension form	Exempt in full s.41(1) Deletion – s.22	o  p.62/63:  release – no personal information o  p.64:  exempt as it contains personal information o  p.65/66:  release – no personal information o  p.67-69:  deletion of the applicant’s name would remove her personal information
71–88	Various	Various documents regarding financial and investment information plus a death certificate	Exempt in full s.41(1) Exempt in full s.41(1)	o  p.71-81:  exempt as it contains personal information o   p.82:  release as document in public domain o  p.83-88: exempt as it contains personal information
89	29.09.06	Letter from D King	Exempt in full s.41(1)	Would disclose the applicant’s personal information
90	22.09.06	Death Advice sheet	Exempt in full s.41(1)	Would disclose the applicant’s personal information
91–95	22.03.07	Repatriation Commission Decision	Exempt in full s.41(1) Exempt in full s.41(1)	o  p.91:  exempt as it contains personal information o  p.92/93:  release – no personal information o  p.94/95:  exempt as it contains personal information

DECISION

20.      The Tribunal accordingly affirms the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A Sweidan

Signed: ......(sgd) T Freeman...........
  Associate

Date of Hearing  13 August 2008 
Date of Decision  22 August 2008 
Applicant  In person            
Solicitor for the Respondent     Mr Ted Harrison
  Solicitor, Department of Veterans’ Affairs