Cunningham and Department of Immigration and Multicultural Affairs

[2000] AATA 326

DECISION AND REASONS FOR DECISION [2000] AATA 326

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V00/106

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      Tatyana CUNNINGHAM  
  Applicant
           And    DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS    
  Respondent

DECISION

Tribunal       Mrs Joan Dwyer, Senior Member            

Date18 April 2000

PlaceMelbourne

Decision      The Tribunal refuses the application for an order under s 35 of the Administrative Appeals Tribunal Act 1975.           
  (Sgnd) Joan Dwyer
  Senior Member

FREEDOM OF INFORMATION – whether confidentiality order authorised under s 35 of the Administrative Appeals Tribunal Act 1975 – application refused
PRACTICE AND PROCEDURE - whether confidentiality order authorised under s 35 of the Administrative Appeals Tribunal Act 1975 – application refused
Administrative Appeals Tribunal Act 1975 s 35(2) and (3)
Freedom of Information Act 1982 s 59A(3)

REASONS FOR REFUSAL OF APPLICATION FOR AN ORDER UNDER S 35 OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975

18 April 2000           Mrs Joan Dwyer, Senior Member   

1. This matter came on for hearing of Mrs Cunningham's application for a confidentiality order under s 35 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") on 18 April 2000.  Mrs Cunningham appeared and was assisted by Mr M Gutkin, a Russian Interpreter.  Ms L Haigh, a Senior Government Solicitor with the Australian Government Solicitor, appeared for the respondent ("DIMA").
   history of application

2. Mrs Cunningham on 17 June 1999 sought access from DIMA under the Freedom of Information Act 1982 ("the FOI Act") to "All documents/letters provided to DIMA by Graeme Cunningham or any other person in relation to my file."

3. On 15 July 1999 Mrs Cunningham was advised by letter that a decision had been made to release all her DIMA files to her, except for the following documents which were claimed to be exempt:

   Folio 239 of file number F97/124567 & folio's 31, 39, 36-41 & 53 are fully exempt under Section 41(1) of the FOI Act as the document contains information about persons other than those identified in this request and disclosure would involve the unreasonable disclosure of personal information about those persons.
   Folio 222 of file number F97/1234567 is fully exempt under Section 7(2A) of the FOI Act as it is from an agency exempt from the operation of the FOI Act.

4. One of the documents which was released was a covering letter to DIMA from Mr Cunningham advising that he was enclosing various documents including:

   F.'HISTORY OF EVENTS', 'NOTES' & 'GENERAL NOTES' THESE ARE MY NOTES USED TO BRIEF MY BARRISTER.  THEY ARE NOT COMPLETE, BUT ARE AS I SAW EVENTS.

5. On 16 August 1999 Mrs Cunningham's solicitors wrote and asked for copies of the enclosures to Mr Cunningham's letter. In response Mrs Cunningham was informed by letter from DIMA dated 14 September 1999 that the documents at annexure F were exempt under ss 41(1) and 45(1) of the FOI Act. In explanation she was sent a copy of a letter purporting to be a letter sent to her solicitor on 15 July 1999.

6. Although it is not ultimately significant, to my surprise that letter is not in identical terms to the letter which was sent to Mrs Cunningham's solicitors on 15 July 1999. It includes a claimed exemption under s 45(1) of the Act which was not included in the original letter of 15 July 1999. It also claims exemptions in respect of folio 23 for which no exemption was claimed in the first letter, but does not claim any exemption for folio 31 for which an exemption was claimed.

7. Mrs Cunningham applied for internal review of the decision that certain documents were exempt under the FOI Act. A decision on review was made and Mrs Cunningham was advised by letter dated 27 October 1999 (T3) that pages 36-41 were exempt under s 41(1) and under s 45(1) of the FOI Act. No exemption was claimed in respect of documents 23 or 31. The decision-maker in her letter explained her findings as follows:

   My Findings
   The entire document was given to us on the understanding of confidentiality.  Mr Cunningham stated at the time the Department received the information that it formed part of a brief to his barrister and I consider that the nature of the information and the fact that it was used in legal briefings make it of a confidential nature.  Mr Cunningham has confirmed that he gave it to us on the understanding that it would be treated in confidence. On these grounds I uphold the original decision and exempt all folios under section 45(1) of the FOI Act.
   Section 41(1) applies to the information which Mr Cunningham has given concerning his own thoughts and actions.  Some of the information falls into this category and for this reason I find that the documents are partially exempt under section 41(1).  (emphasis added)

8. On 31 January 2000 Mrs Cunningham lodged an application with this Tribunal for review of the decision made on internal review. She also lodged an application for a confidentiality order under s 35 of the AAT Act in the following terms:

   I wish to have to above order put against my attached application as I do not want other parties including my ex-husband and representatives viewing my appeal.

conclusion

1. Section 35(2) of the AAT Act provides:

   35  Hearings to be in public except in special circumstances

   (2)Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

   (a)direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and

   (aa)give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and

   (b)give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and

   (c)give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.

   (3)In considering:

   (a)whether the hearing of a proceeding should be held in private; or

   (b)whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;

   the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.

2. During the hearing Mrs Cunningham explained that she was seeking an order that DIMA not advise Mr Cunningham of her application to the Tribunal. I said that I did not have power to make that order. I gave her a copy of s 59A(3) of the FOI Act to read. It requires DIMA to take reasonable steps to notify Mr Cunningham of the application to the Tribunal. It provides:

   59A. (3) Where:

   (a) on a request having been made for access to a document containing personal information about a person (including a deceased person), an agency or Minister decides not to grant access to the document; and
     (b) an application is made to the Tribunal for a review of the decision; the agency or Minister must, as soon as practicable, take all reasonable steps to inform the person, or, if the person is deceased, the legal personal representative of the person, of the application.  (emphasis added)

3. Ms Haigh explained that Mr Cunningham had already been made aware of Mrs Cunningham's FOI application when DIMA wrote to him prior to making the internal review decision.  As set out in paragraph 7 of these reasons that decision states that Mr Cunningham had confirmed that he had given material to DIMA "on the understanding that it would be treated in confidence."

4. Section 35 of the AAT Act does not give the Tribunal power to direct DIMA not to comply with its obligations under s 59A(3) of the FOI Act. The Tribunal's powers under s 35 as set out in s 35(2) deal with confidentiality directions in respect of:

   (a)hearings

   (aa)publication of names and addresses of witnesses before the Tribunal

   (b)the publication of evidence before the Tribunal or of material in documents lodged with the Tribunal

   (c)restricting disclosure to parties to a proceeding of evidence or of the contents of documents lodged with the Tribunal or received in evidence.

5. The order sought by Mrs Cunningham, to direct DIMA not to take steps required under the FOI Act to inform Mr Cunningham of her application to the Tribunal, is not authorised by s 35 of the Act.

6. The Tribunal refuses the application for an order under s 35 of the AAT Act.

   I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

   Signed:         G A Carney
     Associate

   Date/s of Hearing  18 April 2000
   Date of Decision  18 April 2000
   Counsel for the Applicant        Nil
   Solicitor for the Applicant         Nil - Self Represented
   Counsel for the Respondent    Nil
   Solicitor for the Respondent    Ms L Haigh