Fanto v State of South Australia - [2014] SADC 184

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
FANTO v STATE OF SOUTH AUSTRALIA
[2014] SADC 184
Judgment of Her Honour Judge Davison
10 November 2014
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS
This is an appeal against a determination by the Ombudsman refusing access to documents under the Freedom of Information Act 1991. No cogent reason to depart from the decision of the Ombudsman. Appeal dismissed.
Freedom of Information Act 1991 (SA) ss 26, 39, 40. Schedule 1 clauses 4, 6, 13; District Court Act 1991 (SA) s 42E, referred to.
Centrelink v Dykstra [2002] FCA 1442; Re Actors Equity Association of Australia No. 2 [1985] 7 ALD 584; Victoria Police v Marke (2008) 23 VR 223; IPEC's Information Technology Group Pty Ltd v Dept for Information Services (1997) 192 LSJS 54, considered.

FANTO v STATE OF SOUTH AUSTRALIA
[2014] SADC 184
Introduction

This is an appeal pursuant to s40(2) of the Freedom of Information Act 1991 (SA) (“the FOI Act”) against a determination by the Ombudsman. The Ombudsman determined, on an external review, that the document in question was exempt. There were multiple reasons for the exemption. It is the determination of the Ombudsman that is the subject of this appeal.
Background
The background to this matter was contained within an affidavit that was filed by Fiona Yumi Williams-Mitchell on 16 June 2014.[1]
[1] D1
On 12 October 2012 the appellant made an application to the Attorney General’s Department (AGD) for access to documents under the FOI Act. The details of his request were as follows:
I require details of my investigation (investigation of Cosimo Fanto) while employed at AGD.
1. Who instigated the investigation i.e. did it come from the Australian Crime Commission? SAPOL?
– Human Resources/Rob Davies have access to this information.
On 14 November 2012 an accredited Freedom of Information Officer at the AGD determined the application by refusing to grant access to the documents.
On 7 December 2012 the appellant made application to the AGD for an internal review of the decision. On 19 December 2012 the Chief Executive of the AGD confirmed the initial determination and conveyed his decision to the appellant.
On 20 December 2012 the appellant made an application to the Ombudsman for external review of the decision. On 24 January 2013 the Ombudsman confirmed the internal review determination of the Chief Executive. The Ombudsman also determined that he was unable to disclose the reasons for his determination due to the operation of s39(15) of the FOI Act. It is from the decision of the Ombudsman that this appeal arises.
The appeal – extension of time
The Notice of Appeal in this matter was filed on 7 April 2014. Within the Notice of Appeal the appellant referred to a number of reasons why he had not complied with the time limits for the appeal being 30 days after the Notice of the Determination to which the proceedings relate was given by the agency or person.[2] I invited further submissions from the appellant. He submitted from the bar table that he had been aware of the 30 day limit but that he had been engaged in other proceedings that he thought may have produced fruit in relation to his application. This was unsuccessful and he then determined to appeal. I did not consider that these reasons of themselves were sufficient to extend time. However, there was no prejudice to the respondent in extending time and I did so.
[2] Freedom of Information Act 1991 (SA) s40(3)
The appeal
By his Notice of Appeal the appellant sought the following orders:
personal file/and information as requested.
I made plain to the appellant at the commencement of the hearing that I could only deal with the question of the determination by the Ombudsman in respect of these matters. Any questions in relation to compensation or wider questions that were raised by the appellant would have to be dealt with in other proceedings in the appropriate place. The appellant appeared to understand this. The appeal proceeded on the basis of the Freedom of Information application that had been initially made by him on 12 October 2012 and was ultimately determined by the Ombudsman and conveyed to him by letter dated 24 January 2013.
It is accepted that the appellant has a legally enforceable right to be given access to an agency’s documents in accordance with s12 of the FOI Act. However, an agency may refuse access to a document if the document is an exempt document. The classes of exempt documents are identified in Schedule 1 of the FOI Act in s4(1).
An outline of argument relied upon by the respondent in this matter drew my attention to a number of confidential affidavits that were filed by the court. Pursuant to s41 of the FOI Act there is a regime for the receipt of confidential evidence and submissions in proceedings of this type. The document the subject of the appeal is a restricted document by virtue of Schedule 1, Part 1, s4(1) of the FOI Act. That claim having been made, and an application by the agency (the AGD) that I receive evidence and hear submissions in the absence of the public and any party to the appeal, I have no discretion to refuse the application. I therefore allowed the application and received evidence and heard submissions in the absence of the appellant.
Prior to doing this I invited the appellant to make whatever submissions he considered to be appropriate on his appeal and heard full argument from him in relation to the matters that he considered I should have regard to. Much of the submission that he made appeared to be irrelevant to the considerations on the appeal. However, I took into account all that I could of what he said.
The argument by the respondent is to the effect that the document, the subject of the appeal, is an exempt document because of one or more of the following:
1The disclosure of the content of the document could reasonably expect to endanger the life or physical safety of any person. This basis for exemption arises from clause 4(1)(a) of Schedule 1 of the FOI Act.
2The document in question contains matter obtained in confidence, the disclosure of which might reasonably be expected to prejudice the future supply of such information to the government or an agency or would on balance be contrary to public interest. The basis of this exemption is to be found in clause 13(1)(b) of Schedule 1 of the FOI Act.
3The content of the document in question contains “a matter the disclosure of which could reasonably be expected to enable the existence or identity of any confidential source of information in relation to the enforcement or administration of law to be ascertained” and disclosure would be contrary to public interest. This basis of exemption arises from clause 4(2)(a)(ii) of Schedule I of the FOI Act.
4That the document in question contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person. This basis of exemption arises from clause 6 of Schedule I of the FOI Act.
In considering the life or physical safety basis of exemption I have taken into account the content of the confidential affidavits and the affidavits filed by the appellant and the respondent. Having regard to the nature of the document and the material that it contains I consider that disclosure of it could reasonably be expected to endanger the physical life or safety of a person. In doing so I have had regard that such an outcome could “reasonably be expected” as distinct from something that is “irrational, absurd or ridiculous”[3] The content and nature of the document was such that adverse effects are a reasonable expectation.
[3] Centrelink v Dykstra [2002] FCA 1442 at [24] per Mansfield J; Re Actors Equity Association of Australia No. 2 [1985] 7 ALD 584 at 590.
That finding alone would be sufficient to dismiss the appeal. However, I have considered the further basis for exemption and also consider that the document in its terms and as supported by the confidential affidavits is also exempt pursuant to clause 13(1)(b) of Schedule 1 of the FOI Act in that the document might reasonably be expected to prejudice the future supply of such information to the agency and would on balance be contrary to the public interest. It is in the public interest that the future supply of such information to the agency should continue. It should not be unduly fettered by a cause for concern that it may be disclosed to third parties.
I also consider that the document is exempt pursuant to clause 4(2)(a)(ii) of Schedule I of the FOI Act. The document provides information that could confirm suspicion of an identity of a confidential source of information. It is not in the public interest that such material be disclosed in the circumstances of a case such as this.
I also consider that the document is exempt pursuant to s6(1) of Schedule I of the FOI Act in that ‘it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead).[4]
[4] Freedom of Information Act 1991 (SA) s6(1)
personal affairs of a person includes that person’s -
(a) financial affairs;
(b) criminal record;
(c) marital or other personal relationships;
(d) employment records;
(e) personal qualities or attributes;
but does not include the personal affairs of a body corporate; [5]
[5] Ibid s4(1)
In this case we are not concerned with the personal affairs of a body corporate but people who are living and about whom a significant amount of personal information is contained within the document that may be widely disseminated if it is disclosed. This is not a case in which it would be appropriate for the views of the people concerned to be obtained.[6] In making this determination I have had regard to Victoria Police v Marke[7] and the decision of Maxwell J. The information that is contained within the document would not ordinarily be accessible to the general public. It is most unlikely that it was known to the appellant in the amount of detail that is provided in the document. It is of a highly personal and sensitive nature. All of these features militate against the disclosure of the document.
[6] Ibid s26(2)
[7] (2008) 23 VR 223
I am satisfied that the disclosure of the document would be contrary to the public interest. I am satisfied that the respondent has demonstrated this on the balance of probabilities and that the factors in relation to non-disclosure outweigh the factors in favour of its disclosure[8].
[8] IPEC’s Information Technology Group Pty Ltd v Dept for Information Technology Services (1997) 192 LSJS 54.
I must give due weight to the decision of the Ombudsman and not depart from that decision except for cogent reasons[9]. I can see no cogent reason to depart from the decision of the Ombudsman and as such the appeal is dismissed.
[9] District Court Act 1991 (SA) s42E
In the ordinary course I would hear the parties as to the question of costs pursuant to s 42G of the District Court Act 1991 (SA and Rules of Court 6 DCR 263(1).
However the subject appeal is governed by s 40(8)(b) of the FOI Act which provides that the Court must not make an order for costs in favour of an agency unless it is satisfied that the appellants had acted unreasonably, frivolously or vexatiously in bringing the subject appeal.
It cannot be said that the appellant did so and therefore no order for costs ought be made.