Einfeld and Human Rights and Equal Opportunity Commission and Ors

[2009] AATA 414

Administrative

Appeals

Tribunal

 

ADMINISTRATIVE APPEALS TRIBUNAL  )     

)     No: 2007/0001, 0003 and 0282

GENERAL ADMINISTRATIVE DIVISION     )     

ReAnne EINFELD

and
Marcus EINFELD

Applicants

AndHuman Rights and Equal

Opportunity Commission

Respondent

AndMichael McKinnon

Seven Network (Operations)
Limited

Second Respondent

AndMatthew Moore

Sydney Morning Herald

Third Respondent

DECISION (CORRIGENDUM)

TribunalProfessor GD Walker, Deputy President

Date22 June 2009

PlaceSydney

WHEREAS:

1.    The Tribunal published its decision in this matter on 5 June 2009.

2.    The Tribunal wishes to amend the decision to rectify an error.

3.    Now the Tribunal therefore orders that the decision of the tribunal should be amended to reflect the following amendment to paragraph 1 of the decision:

He was HREOC president from 1986 to 1990 and retired from the court in 2001.

…….………[sgd].………
Professor GD Walker
Deputy President

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 414

ADMINISTRATIVE APPEALS TRIBUNAL  )     

)     No: 2007/0001, 0003 and 0282

GENERAL ADMINISTRATIVE DIVISION     )     

ReAnne EINFELD

and
Marcus EINFELD

Applicants

AndHuman Rights and Equal

Opportunity Commission

Respondent

AndMichael McKinnon

Seven Network (Operations)
Limited

Second Respondent

AndMatthew Moore

Sydney Morning Herald

Third Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date5 June 2009

PlaceSydney

DecisionThe decision under review is affirmed.

......................[sgd]......................

Professor GD Walker
  Deputy President

CATCHWORDS

FREEDOM OF INFORMATION - personal affairs exemption - public interest considerations - senior public official - information obtained in confidence - whether documents intended to be released contained personal information about a person – whether disclosure of that information would be unreasonable - current relevance of information - adverse effects diminishing over time - balancing all legitimate interest involved - decision under review affirmed

…

RELEVANT ACTS

Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act): ss 35

Freedom of Information Act 1982 (Cth) (the FoI Act): ss 3, 4, 41

…

CITATIONS

R v Einfeld [2009] NSWSC 119

Re Einfeld and HREOC [2007] AATA 1507

Re Jones and Commissioner of Taxation [2008] AATA 834

Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429

Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCA 55

Wiseman v Commonwealth Federal Court, Full Court No G167 of 1989 (unreported)

Ward v Centrelink (2005) 84 ALD 231

Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257

Re Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900

…

REASONS FOR DECISION

5 June 2009	Professor GD Walker, Deputy President
Basic facts

1.      The applicant in applications numbered 2007/0003 and 0282, the Honourable Marcus Einfeld, is a former judge of the Federal Court of Australia and a former president of the Human Rights and Equal Opportunity Commission (HREOC), a Commonwealth agency.  He was HREOC president from 1986 to 2000 and retired from the court in 2001.  He was awarded numerous honours, including Officer of the Order of Australia and was declared a Living National Treasure by the National Trust.

2.      On 20 March 2009 he was sentenced to three years' imprisonment, with a non-parole period of two years, on charges of perjury and perverting the course of justice.  The offences were committed after his retirement from the court and after he had ceased to be president of the HREOC: see R v Einfeld [2009] NSWSC 119 per James J.

3. Application 2007/0003 is an application by Mr Einfeld for review of a decision made on 22 November 2006 (Exhibit R2, annexure D) in respect of a request under the Freedom of Information Act 1982 (Cth) (the FoI Act) dated 15 August 2006 by Mr Warren Coatsworth of Seven Network (Operations) Limited. The relevant documents in respect of which a decision to grant access was made are documents numbered 114 to 135, 137 to 147 and 150 to 155 in a combined bundle of documents prepared for the purposes of the three applications.

4. Application 2007/0282 is an application by Mr Einfeld for review of a decision in respect of a request under the FoI Act dated 24 November 2006 by Mr Tim Dick of the Sydney Morning Herald.  The decision was made on 29 January 2007.  As Mr Dick no longer seeks access to the documents, that application is not proceeding.

5. Mrs Anne Einfeld was formerly married to Mr Einfeld. Application 2007/0001, is an application by Mrs Einfeld for the review of a decision made on 29 January 2007 (Exhibit R1, annexure C) to release documents in response to a request made under the FoI Act by Mr Warren Coatsworth of Seven Network (Operations) Limited on 15 August 2006 and by Mr Tim Dick of the Sydney Morning Herald on 24 November 2006.  The documents relevant to the application in respect of which a decision was made to grant access are documents 131 to 135 and 137 to 147 in the combined bundle of documents.  Those same documents also arise for consideration in relation to application 2007/0003.

6.      On 5 July 2007, the tribunal directed that Mr Michael McKinnon of Seven Network (Operations) Limited (the Seven Network) and Mr Matthew Moore of the Sydney Morning Herald be joined as second and third respondents in the proceedings: Re Einfeld and HREOC [2007] AATA 1507. By letter dated 23 January 2008 to the registrar of the tribunal, Mr McKinnon stated that he and Mr Moore were no longer able to continue to represent themselves or engage legal representation in these matters and agreed to be bound by the tribunal’s decision. Neither the second nor the third respondent has appeared or participated in the proceedings since then, nor did they appear at the hearing. For convenience, reference throughout these reasons to the respondent is to HREOC while references to the Seven Network and/or the Sydney Morning Herald will be to the second and/or third respondent respectively.

7. By agreement, all three applications were heard together and a combined bundle of documents was prepared. No oral evidence was called. As a confidentiality order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) had previously been made, part of the hearing was held in private pursuant to s 35(2)(a) of the AAT Act.

8.      Following the discontinuance of application 2007/0282, the only documents still in contention fell into three groups:

Group A:     Documents numbered 114 to 135;

Group B:     Documents numbered 137 to 147; and

Group C:     Documents numbered 150 to 155,

in the combined bundle of documents.  The documents in Group B are the only documents that are common to both the applications of Mr Einfeld and of Mrs Einfeld.

9. The applicants’ contention was that the documents in issue were exempt under s 41(1) of the FoI Act because they would disclose personal information about the applicants and that such disclosure would be unreasonable. The respondent did not dispute that the documents contained personal information about the applicants.

10. At the hearing, the applicant was represented by Mr Charles Waterstreet of counsel, instructed by Mr Mark Mackrell of Norton White Lawyers, while Ms Bronwyn Byrnes of HREOC appeared for the respondent. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing.  No oral evidence was given at the hearing.

Applicable legislation

11. Section 41(1) of the FoI Act provides as follows:

…

(1)A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

…

12. “Personal information” is defined in s 4 of the FoI Act as follows:

…

“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.

…

13. The object of the legislation is stated in s 3 of the FoI Act as follows:

…

3       Object

(1)The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:

(a)making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

(b)creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and

(c)creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

(2)It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

…

14. The FoI Act creates a legal right to access to documents:

…

11.     Right of access

(1)Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a)a document of an agency, other than an exempt document; or

(b)an official document of a Minister, other than an exempt document.

(2)Subject to this Act, a person's right of access is not affected by:

(a)any reasons the person gives for seeking access; or

(b)the agency's or Minister's belief as to what are his or her reasons for seeking access.

…

Issue

15. The issue in the applications is whether disclosure of the documents would be unreasonable within the meaning of s 41(1) of the FoI Act.

Applicant’s submissions

16. As was noted above, no oral evidence was called at the hearing. The evidence consisted of an open statement dated 8 February 2007 by Ms Saima Bangash, a solicitor employed at the HREOC (Exhibit R1) and a closed statement by Ms Bangash, also dated 8 February 2007 (Exhibit R2). The parties made submissions on the basis of that evidence. The respondent indicated that it did not strongly oppose the application but would confine its submissions to stating what it saw as the appropriate principles to guide the tribunal in determining the application.

17.     The applicants submitted that the principles to be applied in determining whether disclosure would be unreasonable were largely uncontentious and the relevant authorities were conveniently extracted in Senior Member Allen’s decision in Re Jones and Commissioner of Taxation [2008] AATA 834. Reference was there made to passages in four decisions of the courts: Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 438, 441; Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCA 55 at [28]; Wiseman v Commonwealth Federal Court, Full Court No G167 of 1989 (unreported); and Ward v Centrelink (2005) 84 ALD 231.

18.     Those authorities, the applicants submitted, established that the following principles are more relevant to the present proceedings:

(a)It is in the public interest that documents involving information of a personal nature are excepted from the general right of access;

(b)It is relevant to consider whether or not disclosure would serve the public interest; whether or not there would be some public gain;

(c)If information would do no more than excite or satisfy curiosity about the person, disclosure would be unreasonable;

(d)The fact that information or opinions were provided on the basis that they remain confidential is a relevant consideration; and

(e)It is relevant to consider whether or not the information has any current relevance and whether or not the person who provided the information would want it to be disclosed.

19.     The first group of documents, numbers 114 to 130, consisted of correspondence between Mr Einfeld and the then federal attorney-general, the Hon. Lionel Bowen, between 14 December 1987 and 9 February 1998 concerning an overseas trip taken by Mr Einfeld in early 1988.  It included a set of guidelines for overseas visits dated 23 October 1984.

20.     Documents 114 to 130 related to, and contained details of, a journey made more than 20 years ago and the exchange of information that led to the approval.  It revealed nothing about the current workings of government or the administration of travel policies, if it ever did.  Disclosure would not contribute to the public gain.

21.     The second group of documents, numbers 131 to 147 (omitting 136, a document that the decision-maker decided should not be disclosed) related to the reimbursement of expenses for overseas travel in early 1987 and early 1988 and a visit to Darwin in June 1988.  They dealt with events more than 20 years ago and contained nothing of any public importance.  In fact, they simply revealed a process of reimbursement occurring in an unexceptional way.  The documents do, however, contain details of expenditure by the applicants, which in the absence of some public interest should not be disclosed.

22.     The third group of documents, 150 to 155, consisted of an exchange of correspondence between Mr Einfeld and the then attorney-general about a proposed trip in early 1989 that was duly approved by the attorney-general.  Some of the correspondence from the attorney-general is marked “personal and confidential”, and one could readily infer that the authors exchanged the correspondence on the basis that it would remain confidential.

23.     It also concerned events 20 years ago that had no currency, and the disclosure of which could have no bearing or be of any assistance in relation to government administration, particularly in respect of official travel.  It recorded a frank exchange of opinions within the HREOC, but was intended by the parties to be confidential.  As it was not a complete record, it was not a fair reflection of what may have occurred, and the approval contained in document 148-149 (not disclosed on the ground of irrelevance to the request) showed that the matter could not have been controversial.  Nevertheless, it was intended to be confidential.

24.     The documents did not relate to personal travel but did contain personal information.  They indicated no impropriety but simply disclosed the ordinary mundane workings of government departments.  The requests fell foul of the principle enunciated by Heerey J in Colakovski in that the documents were of no demonstrable relevance to the affairs of government and were “likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed” (at p441), Mr Waterstreet submitted.

Consideration

25. The principles to guide the tribunal when applying s 41(1) of the FoI Act were, in my view, correctly stated in Mr Waterstreet’s submissions, which relied on Re Jones and the cases extracted in that decision:

(a)What is unreasonable disclosure for the purposes of s 41(1) must have as its core public interest considerations. The personal affairs exemption is itself a public interest consideration: Colakovski per Lockhart J at p438.

(b)The criterion of unreasonableness directs attention to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government.  The personal affairs exemption does not require any particular unfairness, embarrassment or hardship resulting from disclosure, but if the information were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy curiosity about the person whose personal affairs were disclosed, disclosure would be unreasonable: Colakovski per Heerey J at 441.

(c)It is relevant that the documents were supplied on the basis that they remain confidential and that their disclosure would cause embarrassment or distress to the persons to whom the information or opinion relates: Kristoffersen per Kiefel J at paragraph 28.

(d)A factor to be considered is whether the information has any current relevance: Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at N259.

(e)Applying s 41(1) requires a balancing of all the legitimate interests involved: Wiseman per the Full Court at page 4.

26.     Further assistance can be found in Re Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900. Member Webb in that case noted that difficulties arise when (as here) the personal information of an applicant is intertwined with the personal information of another person, in this case Mrs Einfeld.

…

“In those circumstances it is necessary to balance the interests of both people when deciding whether disclosure would be unreasonable in the particular circumstances. That is especially so as disclosure under the FOI Act is not specific to an individual but is to the world at large” at [26].

…

27.     Re Albanese noted that the matters in issue in that case had occurred a number of years ago and their relevance had diminished with those years.  At the same time, however, the prospect of the applicant suffering any adverse effect had also diminished with the passage of time and had become negligible (at [29]-[30]).

28.     Member Webb then made an observation that is particularly relevant to the present case:

…

The public interest in the administration of government is in sharp focus when the probity and behaviour of senior public officials are in issue: the more senior the public official, the greater the public interest.  Senior public officials are not simply expected to conduct their public offices and official duties properly and according to law, the public interest is served if they are seen to do so.

…

29.     He concluded that such public interest exceeded any mere curiosity about any individual and weighed heavily in favour of release.

30.     In relation to the documents that are the subject of the present applications, Group A deals with a trip to North America, Europe and Africa undertaken by Mr Einfeld, accompanied by his spouse, in January to March 1988.  There is also some correspondence relating to expenses during a visit to Darwin in June 1988.  It begins in December 1987 with a request for approval for the visit to North America, Europe and India (and possibly Africa).

31.     The attorney-general and deputy prime minister, Mr Bowen, in reply expresses approval in principle but makes it clear that he would need to have a detailed itinerary before he would be in a position to approve the proposals on the basis of the prime minister’s guidelines for overseas visits by secretaries of department and heads of authorities.  Mr Einfeld replies in a tone of some indignation, referring to his heavy workload, protesting that he cannot supply a precise statement of his intended commitments, and giving more particulars of his proposed extension of the trip to Africa.

32.     Mr Bowen replies that extending the trip by a further two weeks would conflict with the prime minister’s guidelines and he declines to accede to the request.

33.     Mr Einfeld’s next letter reflects a rising level of impatience and puts forward a counter-proposal.

34.     The attorney-general’s reply notes that Mr Einfeld had already left the country on the first leg of his trip by the time his letter reached Mr Bowen and repeats his objection to the extended trip.  He concedes that, being confronted with a fait accompli, he has no option but to agree to Mr Einfeld’s remaining overseas until his proposed date of return.

35.     It will be apparent that the contents of Group A include far more than mere personal information 20 years old.  The information in the documents bears directly on public administration and the conduct of senior officials, notably the attorney-general and Mr Einfeld.  Mr Bowen is shown attempting to uphold official travel guidelines, to the point of exasperation, while Mr Einfeld departs on an extended overseas journey before obtaining the minister’s specific approval.  While it may be that no breach of the law was involved, it might be thought that a senior public official was testing the boundaries of propriety.

36.     Group B deals with two overseas trips, including the one dealt with in Group A, as well as the Darwin visit.  The Human Rights Australia director of administration requested further details about the January-March 1988 trip, noting that a number of matters require further explanation.  It acquits some expenses for an earlier overseas visit in February-March 1987, and notes that Mr Einfeld did not submit receipts for them until some 15 months after the event.

37.     Some adjustments are made in expenses claims that do not conform with guidelines or with department of finance guidelines on official gifts.  A letter from the minister for foreign affairs and trade grants approval for the inclusion of the human rights commissioner, Mr Burdekin, in the Australian observer delegation to the forthcoming session of the United Nations Commission on Human Rights, provided that official guidelines are adhered to.  Mr Einfeld’s request for separate accreditation for himself to attend certain meetings was rejected.

38.     There are also certain details about where Mr and Mrs Einfeld stayed and took their meals.  While unremarkable, those details do have a personal element.  Nevertheless, they relate to the expenditure of public money by a senior official, which on established principles gives them a public interest dimension.  The remainder of Group B, however, is material in the disclosure of which the public would clearly have an interest.  Again it shows the guidelines that governments apply to travel expenses and the difficulty that Mr Einfeld apparently experienced in working within them.  The guidelines relating to the inclusion of persons in overseas delegations are also matters of public interest.

39.     Group C consists of documents created in 1989 following Mr Einfeld’s request for approval for a trip to Buenos Aires, Rio de Janeiro, Ottawa, Paris, the then Soviet Union and New Delhi.

40.     The attorney-general’s reply to the request notes that the purposes of the proposed travel fall outside the commission’s domestic charter and asks whether the full commission agrees with Mr Einfeld’s proposal.  Mr Bowen stresses that it is important for the commission to take a corporate decision on such matters.

41.     As Mr Waterstreet pointed out, there are documents missing from Group C, so that the exchange of correspondence is not available in its entirety.  The missing letters appear to be those originating from Mr Einfeld after the initial request.  Nevertheless, it would appear from those documents that do exist that Mr Bowen regarded Mr Einfeld’s handling of the matter, and in particular his failure to obtain commission approval and to abide by government guidelines, as less than satisfactory.  The final letter notes that Mr Einfeld has worked out a compromise with the commission whereby Mr Einfeld would meet all the expenses of the overseas visit personally, but the commission would consider reimbursing such expenses as were directly related to the exercise of his functions as HREOC president.

42.     Group C comprises no personal information and Mr Waterstreet did not argue the contrary.  The documents deal purely with matters of public administration and the itinerary and other public aspects of Mr Einfeld’s next proposed overseas trip.  Rather, Mr Waterstreet submitted that the correspondence was intended to be confidential and was not a fair reflection of what may have happened because of the incomplete set of documents available.

43. As no personal information is involved, s 41(1) of the FoI Act has no application to Group C and the documents cannot therefore be exempted from disclosure on that ground. In any event, the fact that two of the letters are marked “personal and confidential”, while relevant, is not conclusive on the public interest question. The fact that some letters are missing is not material in relation to the documents that do exist, which do cast some light on the operation of government guidelines in relation to official travel.

44.     As was noted in Re Albanese, Mrs Einfeld’s interests must be considered separately in the weighing process.  The only information about Mrs Einfeld contained in any of the documents consists of details of travel expenses that she incurred on overseas visits with Mr Einfeld.  She was perfectly entitled to accompany Mr Einfeld in accordance with applicable guidelines and her then marriage to Mr Einfeld was public knowledge.  None of the information is of a private or embarrassing kind, nor could it in any way reflect adversely on Mrs Einfeld’s reputation as an individual or as a legal practitioner.  Any personal dimension to details about hotels and restaurants is outweighed by the public interest factors I have already referred to.

45.     The objection advanced at an earlier stage in these proceedings that disclosure of the documents might prejudice Mr Einfeld’s fair trial on the criminal charges he was then facing is no longer relevant as he subsequently pleaded guilty, and was convicted and sentenced.

46.     Mr Waterstreet advanced the general submission that all of the documents related to things that happened 20 years ago and no longer had any current relevance to public administration.

47.     The travel expenses of senior public officials have, however, been a matter of continuing public interest and debate for many years.  Although governments and office-holders have changed, the debate continues and the actions of past officials cannot be considered irrelevant.

48.     In any event, the unfortunate fact, from Mr Einfeld’s point of view, is that as a result of his own actions, R v Einfeld now forms part of legal history.  The case and the circumstances surrounding it will be of interest to scholars in law and public administration for years to come.  Some researchers may think it material that the tone of some of Mr Einfeld's correspondence may not be inconsistent with that in some of his statements as noted in James J’s sentencing remarks (eg paras 36, 62, 65, 85).

49.     Those matters have a continuing relevance that goes beyond questions of public finance and travel expenses.  They may also have a bearing on the continuing public debate about the proper criteria for the appointment of judicial officers.

50.     Further, the public discussion generated by R v Einfeld gives a renewed topicality to Mr Einfeld’s actions of 20 years ago.

51. I therefore find that the applicants’ interest in the non-disclosure of personal information contained in Groups A and B is outweighed by the public interest in knowledge of their contents, which goes far beyond mere curiosity about particular individuals. Disclosure of the information would therefore not be unreasonable and the exemption in s 41(1) of the FoI Act does not apply.

52. I also find that the exemption in s 41(1) of the FoI Act does not apply to the documents in Group C as their disclosure would not involve the disclosure of personal information about any person.

53. If that conclusion is erroneous, the same considerations leading to the conclusion that disclosure of the documents in Groups A and B would not be unreasonable apply to those in Group C also. For that reason also, therefore, s 41(1) does not exempt Group C.

54.     The decision under review is affirmed.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   .......................[sgd]..................................................
               Adele Veness, Associate

Date of Hearing:  31 March 2009
Date of Decision:  5 June 2009
Solicitor for the Applicant:                  Mr M Mackrell, Norton White Lawyers
Counsel for the Applicant:                 Mr C Waterstreet
Solicitor for the Respondent:             Ms B Byrnes, HREOC