De Graaf and Crimtac Agency

[2008] AATA 1150

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1150

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W 2006/72

GENERAL ADMINISTRATIVE DIVISION		)
Re		Antonius De Graaf

Applicant

And Crimtac Agency

Respondent

DECISION

Tribunal The Hon Robert Nicholson, Deputy President

Date18 December 2008

PlacePerth

Decision The Tribunal dismisses the application.

......(sgd) Hon Robert Nicholson.........

Deputy President

CATCHWORDS

FREEDOM OF INFORMATION – personal information – whether disclosure would be unreasonable – National Names Index  - possibility of identity confusion – certain information not relevant to applicant – documents failing to identify date of birth of person to whom they relate – documents containing references to dates of birth other than the applicants

LEGISLATION
Freedom of Information Act 1982 (Cth), ss 3, 22, 41, 42, 43

CASES

Colakovski and Australian Telecommunications Corporation (1991) 100 ALR 111
Re Chandra v Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Re Z and ATO (1984) 6 ALD 673
Re Lianos and Social Security (1985) 7 ALD 475
Re Timmins and NMLS (1986) 4 AAR 311
Wiseman v Commonwealth 24/10/1989 Fed Ct Unreported
Ex Christmas Islanders Association and Department of Transport and Regional Services unreported decision number W1996/232
Arnold v Queensland 73 ALR 607
Re Booker and Department of Social Security (1990) EOC 92-342
Re Anderson and Australian Federal Police (1986) 11 ALD 335
Re Lander and Australian Taxation Office (1985) ALN N25
Re Redfern and University of Canberra (1995) 38 ALD 457
Re Dale and the Australian Federal Police (1997) 47 ALD 417 at 423
Stockdale v Health Department of Victoria (1993) 43 FOI Review 11
Russell Island (1994) 33 ALD 683

REASONS FOR DECISION

18 December 2008 Hon Robert Nicholson, Deputy Nicholson

1.      The applicant seeks review of a decision of the respondent made on 9 January 2006.  In the decision the respondent decided that the public interest in protecting personal privacy of third parties, together with other factors, outweighed any public interest in favour of disclosure so that documents sought by the applicant by an application under the Freedom of Information Act 1982 (Cth) (‘the FOI Act’) relating to those parties were exempt from disclosure pursuant to that Act. Specifically, release of the information would involve an unreasonable disclosure of personal information.

Scope of the access sought

2.      The applications for access were made on 19 January 2005 and 22 August 2005.   As understood by the decision-maker and not disputed by the applicant, the requests sought access to all documents in the respondent’s possession about himself (date of birth (‘DOB’) 25/07/1952) and also about Antonius Johannes De Graaf (DOB 25/10/1947) (‘the 1947 ID) and Johannes Gerardus De Graaff (DOB 04/09/1943) (‘the 1943 ID’).  These included (1) records of enquiries, national and international and (2) concise record entry audit logs into the national database for all of these records from the earliest date possible, indicating the time and date of the enquiry, the location and authority from where it was made, reason (if possible) and, the computer ID number of the relevant person making the enquiry.

3. On 29 September 2005 the respondent released 19 pages to the applicant, edited (in reliance upon ss 22 and 41 of the FOI Act) to remove information relating to identities other than his own.

4.      Following lodgment on 14 March 2006 of the applicant’s application for review by this Tribunal, the applicant refined his request at a telephone conference hearing on 19 June 2006.  He sought access to audit logs detailing when and where information from the National Names Index (‘NNI’) administered by the respondent has been accessed concerning three identities, namely the applicant, the 1943 ID and the 1947 ID.  He sought the information in order to determine where and when any identity mix ups with him may have occurred.

5.      On 14 September 2006 the respondent provided the applicant with an audit log showing instances of access to the applicant’s record within the NNI (‘the first audit log’).

6. Following further refinement by the applicant of the scope of his search, the respondent provided to him on 29 March 2007 an audit log (‘the consolidated audit log’) showing instances of access to the records of himself, the 1943 ID, the 1947 ID and three other names (Tony M Degraaf; Anthony M De-Graff and Anthony M De-Graaf). The consolidated audit log was edited to remove information indentifying the individuals who were not the applicant, in reliance of s 41 of the FOI Act. Information relating to the identity of the user accessing the record was also removed and that information is not sought by the applicant.

7.      Following  expression by the applicant on 23 July 2007 of some concerns with the consolidated audit log, the respondent identified records missing from it and provided the applicant with a corrected consolidated audit log on 23 October 2007.  Additionally, after consultation with individual jurisdictions, the respondent provided the applicant with the User ID information previously exempted.

8.       The result is that three areas remain in which the parties are in dispute:

· the first are the exemptions claimed under ss 22 and 41 of the FOI Act over parts of the documents released to the applicant on 29 September 2005 (‘the Tab A documents’);

· the second are exemptions claimed under s 41 of the FOI Act over all of the Person Report Summaries for the 3 DOBs (‘the Tab B documents’);

·     the third are exemptions claimed and other deficiencies in the consolidated audit log provided to the applicant on 29 March 2007 and in a corrected form on 23 October 2007 (‘the Tab C documents’).

Applicable law

9. The FOI Act provides in s 41(1) that a document is an exempt document if its disclosure under that Act would involve the unreasonable disclosure of personal information about any person (including a deceased person). It is provided in s 4 of the FOI Act that, subject to statutory appearance of any contrary intention, ‘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.

10. Section 22 of the FOI, also relied upon by the respondent, provides the authority for deletion of exempt matter when copies of documents are provided. It also provides authority for the deletion of material irrelevant to the request for information.

11.      The respondent appreciates that there is a public interest in the applicant having access to information about himself. However this right must be balanced against the rights of the individuals whose privacy would be unreasonably be interfered with if disclosure were to occur.  In the Full Federal Court judgement of Colakovski and Australian Telecommunications Corporation (1991) 100 ALR 111 the following statements were made:

The object of the Act as expressed as expressed by section 3 is to give the Australian community the right to access of information in the possession of the Australian Government. What is “unreasonable” disclosure of information for the purposes of section 41(1) must have as its core public interest considerations. The exemptions necessary for the protection of “personal affairs” (section 41) and “business or professional affairs” (section 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 the furtherance of the public interest that information of this kind is accepted from the general right of public access provided the other conditions mentioned in sections 41 and 43 are satisfied. (Lockhart J at 120 to 121).

…

Turning to the criterion of unreasonableness prescribed in section 42 (1) exclusion, it seems to me that attention is directed amongst other things to whether or not the proposed disclosure would serve the public interest purpose of the legislation which is to open public access information about government which government holds, this being information which in turn is held on behalf of the public. I do not think it is necessary in order to make section 41(1) exclusion that there is some particular unfairness, embarrassment or hardship would inure to a person by reason of the disclosure such matters, if present and, would doubtless weigh in favour of the exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable. (Heerey J at 123 ).

12.     Although public interest considerations lie at the core of the unreasonable, a consideration of all the circumstances is required to determine whether disclosure in a particular matter will satisfy the exemption. The Tribunal has on many occasions adopted the factors set out in the decision of Re Chandra v Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at para 51 of that decision, namely:

“whether 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 like 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 the third parties.”

13.     The question whether disclosure would be unreasonable must be determined in the circumstances of the particular case. It is a matter of fact and degree and public interest considerations lie at the core of the consideration (Colakovski).  However, a number of matters can be taken into account by the decision maker (see also Re Chandra):

─ the nature of the information eg. not bland, common place information, disclosure     of which holds no serious consequences (Re Z and ATO (1984) 6 ALD 673);

─ the circumstances in which the information was obtained, eg. obtained under statutory compulsion or obtained in confidence (Re Lianos and Social Security (1985) 7 ALD 475); Re Timmins and NMLS (1986) 4 AAR 311);

─ the current relevance of the information (ie. whether the information is out of date (Wiseman v Commonwealth 24/10/1989 FedCt Unreported) and the age of the information (Ex Christmas Islanders Association and Department of Transport and Regional Services (unreported decision number W1996/232, 27 July 2000));

─ the stated object of the legislation in s3 to facilitate and promote the disclosure of information (Arnold v Queensland 73 ALR 607; Re Booker and Department of Social Security (1990) EOC 92-342);

─ the nature of the document in which the information is contained (Re Anderson and Australian Federal Police (1986) 11 ALD 335);

─ the extent to which the information is already a matter of public knowledge, or is known by or readily available to the person seeking access (Re Z and ATO cited above, Re Lander and Australian Taxation Office (1985) ( ALN N25);  

─ whether there was any expectation of confidentiality (Re Redfern and University of Canberra (1995) 38 ALD 457) or whether the information is quite innocuous (Re Timmins and NMLS);  

─ whether the information would shed light on the workings of government (Colakivski);

─ there does not need to be particular unfairness, embarrassment or hardship to the person concerned (Colakovski), though any such evidence will weigh against disclosure (Re Dale and the Australian Federal Police (1997) 47 ALD 417 at 423);

─ the fact that the applicant has a strong sense of grievance in regard to the way allegations may have been dealt with by the respondent does not necessarily override the very significant confidentiality attached to sensitive information in a document (Stockdale v Health Department of Victoria (1993) 43 FOI Review 11).

Evidence

M/s Manwaring and M/s Jennings

14.     The respondent filed affidavits of two witnesses, each of whom was cross-examined by the applicant. 

15.     The first witness was Anjanette Manwaring, software engineer employed by the respondent.  She has been responsible for the maintenance of the software of the NNI and has provided specialist technical assistance in preparing audit logs for the applicant.  Her evidence addressed the preparation of the first audit log and the creation of the consolidated audit log, including the supply of additional documents.

16. The second witness was Kristen Jennings, an officer from the Parliamentary Business & Legal Division of the respondent with responsibility for processing requests for documents received by it under the FOI Act, including the applicant’s request. Her affidavit sought to provide an explanation of the respondent’s administration of the NNI and the history of the applicant’s request.

Mr Ovijach

17. At the hearing the applicant stated that he had issued a summons to obtain the attendance and evidence of Mr Karl Ovijach. He described Mr Ovijach as being a CrimTrac Review officer and previous Director of Strategic Support and Communications. Mr Ovijach did not respond to the summons. As a result, it was directed at the conclusion of the hearing that the applicant have leave to file and serve an affidavit stating succinctly information which he claimed was conveyed to him which he wished to contend may be relevant to the maintenance of any exemption under the FOI Act and the source of such information. In accordance with the direction the applicant filed a document described as an affidavit, being a document affirmed before a JP. The document restated the applicant’s case and included a limited reference to evidence which may have been given by Mr Ovijach if he had responded to the subpoena.

18.     The evidence in this respect was based on a record made by the applicant of a meeting on 10 February 2006 with Mr Ovijach.  He stated that Mr Ovijach had down loaded or obtained the contents of 3 x DOB 000000 warning data, having first obtained and compared this to other ID data to ascertain to whom it belonged.  Further that this data was the applicant’s data, although wrong or untrue.  Further it increased the probability that an ID record manipulation or fraud was also occurring since at least 1994.  Also that Mr Ovijach’s downloads were not, but should have been, detectable on the CrimTrac NNI audits.

19.     The respondent submitted that annexures Z7 and Z8 to the applicant’s supplementary affidavit did not support the proposition that the information allegedly disclosed was the personal information of the applicant.  I accept that submission.  However, that is arguably not the case with regard to the evidence of the applicant in the main body of his supplementary affidavit concerning his discussions with Mr Ovijach.  In the absence of the evidence of Mr Ovijach, the Tribunal could not confidentally form a view on the issue of whether public disclosure had taken place to the applicant of some of the DOB 000000 warning data.  That being the case, I directed that Registrar take steps to bring Mr Ovijach before the Tribunal to give his evidence.

20.     Mr Ovijach’s evidence was substantially affected by the fact that it was approximately three years since his engagement in Crimtrac work and he did not have any memory of the details of the DOB 000 documents.  He recalled having a telephone conversation with the applicant (put as being on 10 February 2006).  He accepted that he may have viewed the DOB 000 documents.  He would expect there would be an audit of the download but was not certain.  He recalled there were records for the name of Antonius De Graaf with differing dates of birth, of which he had no specific recollection.  He could not recall having said to the applicant in the telephone conversation that the records were not about him.  Nor did he recall saying to the applicant that the records appeared to be a manual West Australian to Queensland record overspill.  He could not make a judgment on whether there was any confusion in the system.  A date of birth was one element in identification but other information present could facilitate disclosure of identity.  He could not recall how Crimtrac could have concluded the records related to him.  He was unable to say whether the absence of a date of birth was evidence of fraud or manipulation in a State Police agency.  He considered a record with a 000 DOB would be false.

Tab A documents

21.     Having examined the Tab A documents, I find that the deleted material is material irrelevant to the request made by the applicant.  I reach this view on the basis that there is no arguable foundation for the applicant’s contention that these deletions may in fact relate to him and that there is no further contention on which relevance could be based.  Accordingly the deletion of that material is appropriate: Russell Island (1994) 33 ALD 683.

Tab B documents

22.     The applicant contends that in the case of the three DOB 000000 warning files (as he describes them) the exemptions exclude evidence which relates to him and not to a person other than himself.  The evidence he relies upon in submissions includes the claim that one of the persons named in one of these files is shown to be at the same address which the applicant lived.  This is not apparent from the documents before the Tribunal.  The remainder of the assertions relied upon in this respect do not assist the applicant.

23.     The respondent relies on the evidence of M/s Jennings.  In particular that the physical description of the person referred to in each of the three files does not match a physical description of the applicant.  I consider this evidence to outweigh that relied upon by the applicant.  I therefore proceed on the basis that the information in Tab B does not refer to the applicant, as he maintains.

24.     I am satisfied that the information exempted in Tab B is not information having any relevance to the conduct of government generally.  Considering all the circumstances, the exemption of the information would not be unreasonable.  The information in issue is not shown by any evidence as having been known to the applicant. There could be unfairness, embarrassment or hardship to the persons referred to in the exempt material if it were not exempted.  For example, if their address was disclosed and the applicant contacted them, drawing attention to their inclusion in the warning file at a time in their lives when such occurrence may have been placed well in the past.

25.     Accordingly, I consider the information in Tab B should be exempt.

Tab C

26.     The amended consolidated audit log provided to the applicant by letter from the Australian Government Solicitor on 23 October 2007 contained redactions of names not having the applicant’s DOB and, in two instances, having 000 DOB’s.  In the case of the former there is nothing to displace the inference that they do not relate to the applicant.  In the case of the latter, I do not consider that the evidence, including the evidence of Mr Ovijach, suggests any reason to infer that they relate to the applicant.

27.     That being the case, the considerations referred to in relation to Tab B have application.  They should also be exempt.

Conclusion

28.     For these reasons I consider the application should be dismissed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Hon Robert Nicholson, Deputy President

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

Date/s of Hearing  1 July 2008 and 5 November 2008     
Date of Decision  18 December 2008
Applicant’s Representative       Self
Counsel for the Respondent     Mr P Galland      
Solicitor for the Respondent     Mr J Hyland
  Australian Government Solicitor