Dykstra and Centrelink
[2003] AATA 202
•25 February 2003
CATCHWORDS – FREEDOM OF INFORMATION
– access to documents – whether disclosure would, or could reasonably be expected to, endanger the life of physical safety of any person – decision affirmed.
Freedom of Information Act 1982 s. 37(1)(c)
Administrative Appeals Tribunal Act 1975 ss. 3 and 37
DECISION AND REASONS FOR DECISION [2003] AATA 202
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2002/495
GENERAL ADMINISTRATIVE DIVISION )
Re ROBERT DYKSTRA
Applicant
AndCENTRELINK
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 25 February, 2003
Place: Adelaide
Decision:The Tribunal affirms the decision of the respondent dated 27 September, 2000.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 2 November, 2000, the applicant, Mr Robert Dykstra, applied for review of a decision of the respondent, Centrelink, dated 27 September, 2000 affirming an earlier decision dated 29 August, 2000. That decision granted Mr Dykstra access to 15 documents on his Disability Support Pension file and eight documents (M1-M3 and M5-M9) in the medical envelope. Copies of those documents were sent to him. The decision also refused access to three documents marked M4, M10 and M11 in the medical envelope and did so according to s. 37(1)(c) of the Freedom of Information Act 1982 (“FOI Act”). In so far as it refused Mr Dykstra access to those three documents, it was affirmed by a subsequent decision of a delegate of the principal officer of Centrelink.
In a decision dated 2 August, 2002, I set the decision aside and substituted a decision that documents M4, M10 and M11 are not exempt pursuant to s. 37(1)(c) of the Freedom of Information Act 1982 but deferred access to those documents until 3 September, 2002. I deferred access to enable Centrelink to consider its position and pursued its right to appeal if it wished to do so. To release the documents before it had done so would, for all practical purposes, have rendered their appeal rights nugatory.
Centrelink did decide to lodge an appeal against my decision and that appeal was lodged on 30 August, 2002. On 28 November, 2002, Justice Mansfield allowed the appeal. The error of law that he identified was that I had identified the decision of 29 August, 2000, rather than that of 27 September, 2000, as the decision under review. His Honour said that the:
“The Tribunal, apparently by misapprehending the decision under review, did not refer at all to the information contained in the review officer’s decision as conveyed in his letter of about 27 September 2000. The review officer had additional information obtained from Mr Gates about communications with the respondent when the respondent handed to the Health Services Australia a letter dated 21 July 2000. The passage in the respondent’s letter of 21 July 2000 to Health Services Australia to which the applicant particularly refers appears to be in the following terms:
‘White boy don’t ever deliberately stand in front of me (indecipherable) me (indecipherable) it is you who was there you filthy little inbred.’” (paragraph 18)
His Honour remitted the matter to the Tribunal for further consideration (paragraph 27).
Although notice of the hearing was sent to Mr Dykstra, he did not attend. Centrelink was represented by its advocate, Mr Huttner. As at the first hearing, I had regard to the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) (“T documents”) and to the documents for which Centrelink has claimed exemption. No oral evidence was given in support of Mr Dykstra’s application but both Mr Richard Glen Sladden and Mr Andrew Trevor Gates were called in support of Centrelink’s case. Apart from evidence identifying them, the positions they held and their qualifications, publication or disclosure of evidence given by Mr Sladden and Mr Gates is limited to members and officers of the Tribunal, officers of Centrelink, staff of Auscript and Mr Sladden and Mr Gates. I made an order to that effect pursuant to s. 35 of the AAT Act.
THE ISSUE
The issue in this case is whether disclosure of M4, M10 and M11, of any one or more of them, would, or could reasonably be expected to, endanger the life of physical safety of any person.
CONSIDERATION
In the reasons that I gave for my previous decision, I set out at length material written by Mr Dykstra. The passage from the letter he wrote to Health Services Australia (“HSA”) on 21 July, 2000 (i.e. “white boy don’t ever deliberately stand in front of me”) is repeated in the letter he later wrote to the Tribunal. The words were used in the context of members of staff of HSA. I have set out passages from that letter in paragraphs 18 to 21 of my reasons. The passages I set out also reflect the sentiment expressed in the remainder of the passage quoted by Justice Mansfield. Were the passage from the letter of 21 July, 2000 the only additional material I had, I would reach the same conclusion as I did on the previous occasion and for the same reasons.
I do, however, now have oral evidence from both Mr Sladden and Mr Gates. Neither was called by Centrelink at the previous hearing and, indeed, Centrelink was most reluctant that they should be called even though it was made aware that it carried a burden of proof under s. 61 of the FOI Act. Mr Sladden is a clinical psychologist with HSA. He has been a qualified psychologist for 34 years and has previous experience as a clinical psychologist, organisational psychologist and counselling psychologist. Mr Gates is now the General Manager of HSA for South Australia and the Northern Territory and previously held the position of Business Development Manager with special responsibility for Centrelink. I am not able to summarise their evidence for to do so would be to breach my order. Having heard it, and having taken into account the evidence which I summarised in my earlier reasons, I have concluded that disclosure of the three documents to which Mr Dykstra seeks access would, or could reasonably be expected to, endanger the life or physical safety of a person or persons. They are, therefore, exempt pursuant to s. 37(1)(c) of the FOI Act. I am unable to elaborate upon these reasons without disclosing confidential material or the material in the exempt documents.
For the reasons I have given, I affirm the decision of the respondent dated 27 September, 2000.
I certify that the eight preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),
Signed: …………………………………..
Paul Paczkowski Associate
Dates of Hearing 25 February, 2003
Date of Decision 25 February, 2003
Date of Written Reasons 28 February, 2003
For the Applicant no appearance
Advocate for the Respondent Mr R. Huttner
0
0
0