Duncan and Secretary, Department of Human Services (Freedom of information)
[2016] AATA 152
•15 March 2016
Duncan and Secretary, Department of Human Services (Freedom of information) [2016] AATA 152 (15 March 2016)
Division
GENERAL DIVISION
File number
2015/5302
Ian Duncan
APPLICANT
And
Secretary, Department of Human Services
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Dr James Popple, Senior Member Date 15 March 2016 Place Canberra The decision under review is Centrelink’s decision of 22 August 2011, as varied by the decisions of 10 May and 20 December 2012, and 9 August 2013.
............[sgd]............................................................
James Popple, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION — Access to documents — variation of access refusal decision — whether original decision can be varied under Freedom of Information Act 1982, s 55G if revised decision does not give access to requested document in full — whether reference to document (singular) includes documents (plural) — interlocutory question — what is decision under review in the Tribunal — decision under review is an access refusal decision, as varied by three subsequent decisions.
LEGISLATION
Acts Interpretation Act 1901, s 23(b)
Freedom of Information Act 1982, ss 15, 22, 24, 24A, 24AA, 24AB, 31B, 53A, 54G, 54L, 54W(b), 55G, 57A, 93A
CASES
Dreyfus and Secretary, Attorney General’s Department [2015] AATA 962
Francis and Department of Defence (2012) 59 AAR 35
Rovere and Secretary, Department of Education and Training [2015] AATA 462
Secretary, Department of Prime Minister and Cabinet and Wood [2015] AATA 945
Thomson and Australian Federal Police [2013] AICmr 83
SECONDARY MATERIALS
Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (October 2014)
REASONS FOR DECISION
Dr James Popple, Senior Member
15 March 2016
Summary
I answer the interlocutory question about what is the decision under review in the Tribunal. I do so by considering the application of the Freedom of Information Act 1982 (the FOI Act) to the applicant’s requests for access to documents, and the various decisions (including decisions varying earlier decisions) made in response to those requests. The decision under review is an access refusal decision, as varied by three subsequent decisions.
Background
The background to this review is complicated.
On 14 June 2011, Mr Ian Duncan applied to Centrelink under s 15 of the FOI Act for access to documents relating to allegations that various people had breached the APS Code of Conduct.[1] He made four separate applications.
[1] The APS Code of Conduct is set out in s 13 of the Public Service Act 1999. The Code imposes obligations on APS employees (people engaged under the Act).
On 11 July 2011, Centrelink wrote to Mr Duncan, advising that it was satisfied that his requests related to documents, the subject matter of which was substantially the same. Accordingly, Centrelink decided to treat his four requests as a single request under s 24(2) of the FOI Act. Centrelink also advised that it was satisfied that a practical refusal reason existed in relation to his request because the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations (s 24AA(1)(a)(i)). Centrelink advised Mr Duncan that it intended to refuse access to the documents he had requested, and commenced a request consultation process (s 24AB).
On 14 July 2011, Mr Duncan sought from Centrelink an index of documents relevant to his request. He said that that might assist him to “revise [his] request so that the practical refusal reason no longer exists”. On 25 July 2011, Centrelink replied that it was unable to provide such an index “because the steps required to collect and collate this information would be unreasonable and would substantially and unreasonably divert the resources of Centrelink from its other operations”. At the same time, Centrelink extended the consultation period in the request consultation process.
On 8 August 2011, Mr Duncan withdrew one of his four applications and advised Centrelink that he did not wish to otherwise revise his request.
On 22 August 2011, Centrelink decided that a practical refusal reason still existed, and refused access to the documents that Mr Duncan had requested. The parties have called this the August decision. The reasons for the August decision included a statement that the allegations referred to in Mr Duncan’s request had been investigated by senior staff of Centrelink, and that “only a minimal amount of electronic information relevant to [his] request could be located”.
On 12 September 2011, Mr Duncan applied to Centrelink under s 15 of the FOI Act for access to documents relating to the August decision. Specifically, he requested evidence supporting the statement about the investigation of the allegations, and the electronic information referred to in the reasons for the August decision.
On 11 October 2011, Centrelink refused access to the documents requested, on the basis that those documents were amongst the documents covered by the August decision. The parties have called this the October decision. Centrelink did, however, provide Mr Duncan with the names of senior staff involved in the investigation of the allegations.
On 26 October 2011, Mr Duncan applied to the Information Commissioner under s 54L of the FOI Act for IC review of the August decision and the October decision.[2] An IC review is a review of an IC reviewable decision undertaken by the Information Commissioner under Part VII of the FOI Act (s 54G).
[2] Mr Duncan says that he applied for IC review on 26 October 2011 in relation to the August decision and on 4 November 2011 in relation to the October decision. The documents before me (and the fact that the Information Commissioner assigned consecutive file numbers to Mr Duncan’s IC reviews) suggest that Mr Duncan applied for IC review in relation to the August decision and the October decision on the same day. Nothing turns on this.
In these reasons, I will adopt the shorthand of referring to a document that is wholly comprised of exempt matter[3] as wholly exempt; and to a document that contains, but is not wholly comprised of, exempt matter as partly exempt. Strictly speaking, under s 31B of the FOI Act, the whole document is exempt if one of the exemptions in Division 2 of Part IV applies; or if one of the conditional exemptions in Division 3 of Part IV applies and access to the document would, on balance, be contrary to the public interest.[4] However, s 22 provides for an FOI applicant to be given access to an edited copy of a partly exempt document, modified by the deletion of the exempt matter.
[3] Section 4(1) of the FOI Act provides that “exempt matter means matter the inclusion of which in a document causes the document to be an exempt document”.
[4] See also the definitions of “conditionally exempt” and “exempt document” in s 4(1).
On 10 May 2012, the Department of Human Services (the Department)[5] advised Mr Duncan that it had reconsidered the October decision insofar as it related to his request for the electronic information referred to in the August decision. The 27 documents that comprised that electronic information were itemised in a schedule to the Department’s letter. The Department advised that it had decided to vary the October decision so as to release the “non-exempt minimal electronic information”. It decided that 19 of the documents were wholly exempt and five were partly exempt. The exemptions that the Department said applied to each of those documents were indicated in the schedule.[6] The three remaining documents were made available to Mr Duncan in full.[7] The Department said that it was varying the October decision under s 55G of the FOI Act. I will call this the first variation decision. The Department also advised Mr Duncan, in its letter of 10 May, that it was “continuing to give consideration to whether the August and October decisions require further variation”.
[5] Centrelink was integrated into the Department from 1 July 2011.
[6] Sections 42 (legal professional privilege), 47C (deliberative processes) and 47F (personal privacy).
[7] In its statement pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, the Department says that it decided that 18 (not 19) of the documents were wholly exempt, five were partly exempt, and four (not three) were made available in full. The numbers I have given are based on the schedule to the Department’s letter of 10 May 2012.
On 11 July 2012, an officer of the Department wrote to Mr Duncan advising that:
Since the [first variation decision], the Department has undertaken a number of searches to identify further information that may be capable of falling within the scope of your request.
I have not been able to identify any other information within the scope of your request.
I am satisfied that the department has done all that it could reasonably be required to do in order to find documents within the scope of your request.
Accordingly, I refuse your request under s 24A of the FOI Act.
I will call this the s 24A refusal decision.
On 13 August 2012, Mr Duncan withdrew his application for IC review in relation to the October decision.
On 20 December 2012, the Department advised Mr Duncan that it had conducted further searches and identified a number of other relevant documents. The Department decided to “further vary the August and October decisions to the extent necessary to give effect to a release of further documents falling within the scope of [Mr Duncan’s] requests”. Those 27 further documents were itemised in a schedule to the Department’s letter. The Department decided that eight of the documents were wholly exempt and four were partly exempt. It said that a single exemption applied to each of those documents.[8] The 15 remaining documents were made available to Mr Duncan in full. The Department said that it was varying the August and October decisions under s 55G of the FOI Act. I will call this the second variation decision.
[8] Section 42 (legal professional privilege).
On 9 August 2013, the Department advised Mr Duncan that it had come to its attention that there was further information in the Department’s possession within the scope of his request that had not been provided to him. Ten further documents were itemised in a schedule to the Department’s letter. The Department decided that five of the documents were wholly exempt and three were partly exempt. Again, it said that a single exemption applied to each of those documents.[9] The two remaining documents were made available to Mr Duncan in full. Again, the Department invoked s 55G of the FOI Act, though it did not specify which of its previous decisions it was varying. I will call this the third variation decision.
[9] Section 42 (legal professional privilege).
On 9 September 2015, the Information Commissioner decided, under s 54W(b), not to undertake an IC review on the basis that the interests of the administration of the FOI Act made it desirable that the IC reviewable decision be considered by the Tribunal.
On 9 October 2015, Mr Duncan applied to the Tribunal, under s 57A(1)(b) of the FOI Act, for review of the IC reviewable decision.
Issue
The interlocutory issue is this: what is the decision under review in the Tribunal?
The parties provided written submissions on this issue, and asked that I make a decision on the papers without a hearing.
What is the decision under review in the Tribunal?
Section 57A of the FOI Act relevantly provides:
57A Tribunal reviewable decisions—which decisions are reviewable?
(1)An application may be made to the Tribunal for review of the following decisions:
…
(b) if the Information Commissioner makes a decision under paragraph 54W(b) (matters inappropriate for IC review)—the IC reviewable decision in relation to which the Information Commissioner makes the decision.
So, the decision under review in the Tribunal is the IC reviewable decision in relation to which the Information Commissioner decided not to undertake an IC review.
In a letter to Mr Duncan on 9 September 2015 (when the s 54W(b) decision was made) the Office of the Australian Information Commissioner indicated its understanding that that IC reviewable decision was the August decision as varied by the first, second and third variation decisions. The Department is of the same view. Mr Duncan has a different view, based on arguments about the effect of s 55G and about whether occurrences of “document” in the FOI Act include “documents”.
What is the effect of s 55G?
Section 55G of the FOI Act provides:
55G Procedure in IC review—revocation or variation of access refusal decision
(1)An agency or Minister may vary (or set aside and substitute) an access refusal decision (the original decision) in relation to a request or an application under section 48[10] at any time during an IC review of the access refusal decision if the variation or substitution (the revised decision) would have an effect of:
(a) giving access to a document in accordance with the request; or
(b) relieving the IC review applicant from liability to pay a charge; or
(c) requiring a record of personal information to be amended or annotated in accordance with the application.
(2)If an agency or Minister varies (or sets aside and substitutes) an access refusal decision under subsection (1):
(a) the agency or Minister must, in writing, notify the Information Commissioner as soon as practicable after the agency or Minister makes the variation or substitution; and
(b) the Information Commissioner must deal with the IC review application for review of the original decision as if it were an IC review application for the review of the varied or substituted decision, subject otherwise to this Part [Part VII].
[10] Section 48 is about application for amendment or annotation of personal records (see 55G(1)(c)), and is not relevant to this review.
Mr Duncan says that, giving an FOI applicant access (under s 22) to an edited copy of what I have referred to as a “partly exempt document”,[11] modified by the deletion of exempt matter, does not amount to giving “access to a document in accordance with a request”. It follows, he says, that a decision cannot be varied under s 55G unless it is varied so as to give access to the requested document in full.
[11] See [11] above.
The Australian Information Commissioner has issued guidelines (the FOI Guidelines) under s 93A(1) of the FOI Act. Section 93A(2) provides that “regard must be had” to the FOI Guidelines for the purposes of performing a function, or exercising a power, under the FOI Act. The FOI Guidelines are not binding, but decision makers, including this Tribunal, should apply the FOI Guidelines unless there are cogent reasons to the contrary.[12]
[12] See Dreyfus and Secretary, Attorney-General’s Department [2015] AATA 962 at [33] per Bennett J; Francis and Department of Defence (2012) 59 AAR 35 at 39–40 [18] per Jarvis DP; Rovere and Secretary, Department of Education and Training [2015] AATA 462 at [12]. But see also Secretary, Department of Prime Minister and Cabinet and Wood [2015] AATA 945 at [23]–[27] per Forgie DP.
The FOI Guidelines explain the operation of s 55G(1) as follows:
After an application is made to the Information Commissioner for review, an agency or minister may vary or substitute an access refusal decision to favour the applicant, whether by giving access to a document, removing the liability to pay a charge or amending a personal record (s 55G(1)). A new decision involving access to documents must release more information to the applicant than the original decision.[13]
The FOI Guidelines cite Thomson and Australian Federal Police, an IC review decision, in which the Privacy Commissioner said:
Section 55G is intended to have the effect of providing a benefit to an applicant in the IC review process by providing for the release of additional information following on from an original decision.[14]
On this approach, so long as a variation favours the applicant—so long as it gives the applicant access to more information than did the original decision—then that variation becomes the revised decision under s 55G. This approach is sensible and practical, and consistent with the objects of the FOI Act.[15] But it is not strictly correct.
[13] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (October 2014) at [10.52].
[14] [2013] AICmr 83 at [12].
[15] See ss 3 and 3A.
Section 53A relevantly provides:
53A What is an access refusal decision?
An access refusal decision is any of the following decisions:
(a) a decision refusing to give access to a document in accordance with a request;
(b) a decision giving access to a document but not giving, in accordance with the request, access to all documents to which the request relates;
(c) a decision purporting to give, in accordance with a request, access to all documents to which the request relates, but not actually giving that access;
…
Consider a hypothetical request under the FOI Act for a single document. The agency decides that the document is exempt, but that the FOI applicant can be given access to an edited copy of the document, modified (under s 22) by the deletion of the exempt matter. That decision is an access refusal decision: it is a decision refusing to give access to a document in accordance with a request (s 53A(a)—and no other paragraph of s 53A applies).[16] The FOI applicant applies for IC review of that decision. The agency decides that some (but not all) of the material in the document, which it previously considered exempt, is not exempt. The agency cannot vary its original decision under s 55G by giving the FOI applicant access to a differently edited copy of the document, even if that differently edited copy contains more information. That is because the revised decision would (like the original decision) be an access refusal decision, and for the same reason: it would be a decision refusing to give access to a document in accordance with a request. So, the revised decision cannot satisfy s 55G(1)(a): it cannot have the effect of “giving access to a document in accordance with the request”. And it cannot satisfy either of the other two paragraphs of s 55G(1).
[16] I note, in passing, that if this hypothetical decision were not characterised as “a decision refusing to give access to a document in accordance with a request”—if no paragraph of s 53A applied—then it would not be an access refusal decision, and there could be no IC review or Tribunal review of the decision.
This is a surprising result. The clear intention of s 55G is (as noted above[17]) to allow agencies to release additional information to an applicant for IC review even while the IC review is underway. But a decision cannot be varied under s 55G unless the revised decision gives access to a document in full—or at least to every part of the document that has been requested. Mr Duncan is correct on this point. (However, as explained below,[18] each of the three variation decisions in this review was a revised decision under s 55G.)
[17] See [26] above.
[18] See [34] below.
Mr Duncan also says that s 55G can only be invoked once in an IC review. I disagree. There is nothing in s 55G, or elsewhere in the FOI Act, to suggest that an original decision cannot be varied more than once under s 55G. And the fact that the Information Commissioner is required, by s 55G(2)(b), to deal with the IC review of the original decision as if it were an IC review of the varied decision strongly suggests that s 55G can be invoked more than once in an IC review. Provided that the agency notifies the Information Commissioner that it has made the variation (as required by s 55G(2)(a)—and as happened in this review after each of the three variation decisions), then the revised decision after the first invocation of s 55G becomes the original decision for the second invocation, and so on.
Does “document” include “documents”?
Mr Duncan also argues that, because various references in the FOI Act are to “a document” or “the document” and not to “documents”, a request for access to a document (under s 15) must be a request for a single document, and an original decision (under s 55G) must be a decision in relation to a single document. It follows, he says, that the August decision and the October decision were each actually multiple decisions: a separate decision in relation to each document sought. Therefore, he says, each of those multiple decisions can only be varied under s 55G if it is varied so as to give access in full to the document to which it relates.
This argument is misconceived. Section 23(b) of the Acts Interpretation Act 1901 provides that, in any Act, “words in the singular number include the plural and words in the plural number include the singular”. Section 15(1) of the FOI Act provides that “a person who wishes to obtain access to a document of an agency … may request access to the document”. A person may (in a single application) request access to more than one document under s 15(1). Each of Mr Duncan’s FOI applications (four on 14 June 2011 and one on 12 September 2011) was a request for one or more documents under s 15(1). An original decision under s 55G is an access refusal decision. As noted above,[19] s 53A provides that an access refusal decision is (amongst other things) “a decision refusing to give access to a document in accordance with a request”. It can also be a decision refusing to give access to two or more documents in accordance with a request. Each of the August decision and the October decision was an access refusal decision refusing access to multiple documents in accordance with a request.
[19] See [27] above.
Conclusion
The August decision was an access refusal decision: it was a decision refusing to give access to documents in accordance with Mr Duncan’s request.[20] It was made under s 24(1). Section 24(1)(a) requires an agency to conduct a request consultation process if it is satisfied that a practical refusal reason exists. Section 24(1)(b) provides that an agency may refuse to give access to a document in accordance with a request if, after the request consultation process, it is satisfied that the practical refusal reason still exists.
[20] He actually made four separate requests, but Centrelink treated those requests as a single request under s 24(2) (see [4] above).
The October decision was also an access refusal decision: it was a decision refusing to give access to documents in accordance with Mr Duncan’s request. The decision maker refused access to those documents on the basis that they were amongst the documents covered by the August decision.
Each of the three variation decisions gave access to at least one document “in accordance with the request” (s 55G(1)(a)).[21] The first variation decision varied the August decision and the October decision. The Department said that it was varying the October decision, but it must also have been varying the August decision because the August decision related to Mr Duncan’s request for access to those documents to which the first variation decision gave him access. The second variation decision varied the August decision as varied by the first variation decision. It could not have also varied the October decision (as varied) because Mr Duncan had withdrawn his application for IC review in relation to the October decision before the second variation decision was made. The third variation decision varied the August decision as varied by the first and second variation decisions.
[21] The first variation decision made three documents available in full; the second, 15; and the third, two.
The s 24A refusal decision (made between the first and second variation decisions) was not a variation of an access refusal decision under s 55G. It did not have the effect of giving access to any document. It was of no effect.
The IC reviewable decision in relation to which the Information Commissioner decided not to undertake an IC review is the August decision as varied by the first, second and third variation decisions. That is the decision under review in the Tribunal.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple .......[sgd].................................................................
Associate
Dated 15 March 2016
Date final submissions received 1 March 2016 Applicant In person Solicitors for the Respondent Legal Services Division,
Department of Human Services
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