Forbutt and Centrelink
[2005] AATA 814
•25 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 814
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/328
GENERAL ADMINISTRATIVE DIVISION )
Re MARGARET FORBUTT Applicant
And
CENTRELINK
Respondent
DECISION
Tribunal Dr KS Levy, Member Date25 August 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.....................[Sgd]....................
KS Levy
Member
CATCHWORDS
ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – Information received by Centrelink – Information not substantiated – request for copy of letter – letter typed but with sections blacked out – whether original letter or full typed copy exempt from full disclosure – Freedom of Information Act 37(1)
Freedom of Information Act 1982 ss 4, 11, 37, 55
Administrative Appeals Tribunal Act 1975 ss 34B, 35(2)
Social Security (Administration) Act 1999 ss 7, 8McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645
Re Maskell and CEO, Centrelink (2004) 80 ALD 228
Re Dale and Australian Federal Police (1997) 47 ALD 417
Department of Health v Jephcott (1985) 62 ALR 421
Miniter and CEO, Centrelink [2004] AATA 601
Re Venzin and Centrelink [2002] AATA 602
Re Power and Secretary, Department of Family and Community Services [2002] AATA 1302
Re Sinclair v Secretary, Department of Social Security [AAT Decision 2357, 16 October 1985]REASONS FOR DECISION
25 August 2005 Dr KS Levy, Member 1. This is an application for a review of a decision by Centrelink to refuse access to the original of a handwritten letter received by Centrelink on 23 November 2004 and to provide a copy of that handwritten letter or to provide full access to a typed copy without certain words deleted. The respondent determined that the information deleted was exempt under section 37(1)(b) of the Freedom of Information Act 1982 (the Act).
2. The application by the applicant is authorised under section 29(1) of the Administrative Appeals Tribunal Act 1975 and also under section 55 of the Act.
3. The original application was made by the applicant on 4 March 2005 and received by Centrelink on 10 March 2005, which sought access to the letter received by Centrelink and which alleged that the applicant had rental properties in Artarmon or Willoughby, suburbs of Sydney (T4, Folios 14-15). On 5 April 2005 the applicant was advised of a two-page handwritten letter received by Centrelink on 23 November 2004 (T6, Folio 19). The letter dated 5 April 2005 also determined that the original handwritten letter was exempt under section 37(1)(b) of the Act (T6, Folio 17).
4. Ms Forbutt sought a review of this decision on 14 April 2005. The decision was reviewed by a delegate and the original decision affirmed on 16 May 2005 (T2, Folio 10-11). On 26 May 2005, the applicant applied to this Tribunal for review (T1, Folios 1-9).
5. The following documents are relevant to this review.
§ Document 1 – a handwritten letter addressed to Centrelink which was received on 23 November 2004 (Document 1 on Schedule of Documents); and
§ Document 2 – a typed complete copy of the handwritten letter addressed to Centrelink which was received on 23 November 2004 (Document 2 on Schedule of Documents).
6. The following documents have been admitted into evidence –
Exhibit 1“T” Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2Consent to determination in the absence of the parties – Margaret A Forbutt
Exhibit 3Consent to determination in the absence of the parties – Centrelink
7. Both parties have indicated they would like the matter dealt with on the papers, that is, without a hearing, and in accordance with section 34B of the Administrative Appeals Tribunal Act 1975 (see Exhibits 2 and 3).
Issue
8. The issue in this case is whether Centrelink has correctly applied exemption provisions to the documents in question, which have been sought by the applicant under the Act.
Legislation
9. The Freedom of Information Act 1982 (Cth) relevantly provides:
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
agency means a Department, a prescribed authority or an eligible case manager.
….
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.
….
37 Documents affecting enforcement of law and protection of public safety
(1)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) ….;
(b)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non‑existence of a confidential source of information, in relation to the enforcement or administration of the law; or
(c) endanger the life or physical safety of any person.
….
55 Applications to Administrative Appeals Tribunal
(1)Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
(a)a decision refusing to grant access to a document in accordance with a request; or
(aa)a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or
(ab)a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or
(b) a decision to defer the provision of access to a document; or
(c)a decision refusing to allow a further period for making an application under subsection 54(1) for a review of a decision; or
(d)a decision under section 29 relating to imposition of a charge or the amount of a charge; or
(e)a decision under section 30A relating to remission of an application fee; or
(f)a decision to grant access to a document only to a qualified person under subsection 41(3); or
(g)a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h)a decision refusing to annotate a record of personal information in accordance with an application made under section 48.
(2)Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.
(3)Subsection (2) does not prevent an application to the Tribunal in respect of a decision where:
(a)the person concerned has applied under section 54 for a review of the decision;
(b)a period of 30 days has elapsed since the day on which that application was received by or on behalf of the agency concerned; and
(c) he or she has not been informed of the result of the review;
and such an application to the Tribunal may be treated by the Tribunal as having been made within the time allowed by subsection (4) if it appears to the Tribunal that there was no unreasonable delay in making the application to the Tribunal.
(4)Notwithstanding section 29 of the Administrative Appeals Tribunal Act 1975, the period within which (subject to any extension granted by the Tribunal) an application under subsection (1) of this section is to be made in respect of a decision is:
(a)except where paragraph (b) or (c) applies—the period commencing on the day on which notice of the decision was given to the applicant in accordance with section 26 and ending on the sixtieth day after that day;
(b)where the decision is a decision that is to be deemed by subsection 56(1) or (3) to have been made—the period commencing on the day on which the decision is to be deemed to have been made and ending on the sixtieth day after that day; or
(c)where subsection 57(3) is applicable—the period commencing on the day on which the Ombudsman has informed the applicant as referred to in that subsection and ending on the sixtieth day after that day.
(5)The Tribunal’s power to make a decision on a review of a decision refusing to grant access to a document on a ground mentioned in section 24A includes a power to require the agency or Minister concerned to conduct further searches for the document.
(5A)The Tribunal’s power to make a decision on a review of a decision of a kind mentioned in paragraph (1)(ab) includes a power to require the agency or Minister concerned to conduct further searches for the document.
(6)The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:
(a)the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; or
(b)the decision whether to amend the document involves a determination of a question that the applicant concerned is, or has been, entitled to have determined by a court or tribunal (other than the Tribunal); or
(c)the amendment relates to a record of an opinion to which neither of the following applies;
(i) the opinion was based on a mistake of fact;
(ii)the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.”
Preliminary Issue
10. The Act is concerned with documents of an agency rather than documents of an individual or decision-maker (see section 60 of the Act). The documents being reviewed are identified above. Section 4(1) of the Act defines the term “agency” as “…. a Department, a prescribed authority….”. Centrelink is a Department within the meaning of section 4(1) of the Act.
11. In dealing with the sensitivity of the documents concerned, which are claimed to have partial or full exempt status, the Tribunal made an order pursuant to section 35(2)(c) of the Administrative Appeals Tribunal Act 1975 and directed that:
“(a)the publication of the content of documents provided confidentially to the Tribunal, is prohibited to all persons other than the Respondent, the Tribunal and the Tribunal’s staff; and
(b)this order applies until further order.”
Consideration
12. The respondent argues that the applicant’s claim for access to the full handwritten document is fully exempt, or alternatively, a typed written copy of the full handwritten letter, is exempt in part under section 37(1)(b) of the Act. The test of whether the document was supplied in confidence and is therefore exempt, was provided by Muirhead J in McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645 at 649, where his Honour outlined three relevant questions in determining the matter being reviewed:
(1) Was the letter in question a confidential source of information?
(2)If so, was it properly classified as relating to the enforcement or administration of the law?
(3)Would its release in toto disclose the identity of the confidential source or, in the alternative, could it reasonably be expected to do so?
13. These principles have been followed by the Tribunal in cases such as Re Maskell and CEO, Centrelink (2004) 80 ALD 228 at 228.
14. The applicant argues that sending an anonymous letter indicates a level of ill will towards her by the letter’s author that should offset any arguments in favour of confidentiality. In terms, she suggests that she is fearful of the anonymous informant. This is the corollary of a Section 37 (1) (c) exemption.
§(1) Was the letter in question a confidential source of information?
15. Section 37(1)(b) provides that a document is exempt if its disclosure under the Act would, or could reasonably be expected to disclose the identity of a confidential source of information in relation to the enforcement or administration of the law. While section 37(1)(c) provides for an exemption where life or physical safety of a confidential source might be endangered, this provision has not been raised in this case by the respondent. Therefore, the claim is that the provider of the letter in question was a confidential source and the excluded information on the typed copy released would disclose the identity of that person or could reasonably be expected to do so.
16. The respondent submits that the purpose of section 37(1)(b) was plainly set out in Re Dale and Australian Federal Police (1997) 47 ALD 417 at 420 where Deputy President McMahon stated:
“(13)…The paragraph is intended to protect the basis of confidentiality, which is essential to ensure the cooperation of sources of information….It is not necessary, in considering a claim made under this paragraph, to examine the truth or even the reliability of the information attributed to the confidential source. The paragraph clearly supports the public policy that information given on the basis of confidence can be valuable in administration of the…law and that if this attribute of confidentiality cannot be guaranteed and subsequently enforced, then the whole mechanism is endangered. The purpose of the exemption is to preserve this assurance of confidentiality. Once the nature of the relationship is established, there is no more to be said.”
17. It was also submitted that the test of “a confidential source of information” requires demonstration that a person has supplied information on the understanding, express or implied, that his or her identity will remain confidential (see Re Maskell and CEO, Centrelink (supra); Department of Health v Jephcott (1985) 62 ALR 421).
18. The content of information provided by the author of the letter suggests that the applicant may not have been entitled to Centrelink benefits she has received. Whether the person suggesting this non-entitlement is acting wholly in the public interest is not relevant. Where there is suspicion, Centrelink has an obligation to ensure that public moneys are provided only for the purpose prescribed by the legislation. In Miniter and CEO, Centrelink [2004] AATA 601, Member Allen at [17-18] referred to the publicity campaign and website information that disclosed a policy by Centrelink of treating information received as confidential. That is, it would, generally speaking, not provide the personal details of the identity of the provider of information without that person’s consent. That must, by necessity, include any information that might have a tendency to be able to identify the person. The present case has some similarity to Miniter’s case as the document received by Centrelink in both cases did not have a name, address or other personal information, although the letter was handwritten. In Miniter’s case reference was made to Re Venzin and Centrelink [2002] AATA 602 where it was stated that it was “….arguably public knowledge that information about suspected fraud can be given to Centrelink in confidence”.
19. Applying the law as set out above to the facts in Miniter’s case (which is very similar to the present case), it was decided that there was an implied undertaking that the identity of the supplier of information would be treated as confidential by Centrelink. Similarly, in the present case, I find the first requirement set out by Muirhead J in McKenzie and Secretary, Department of Social Security (supra) is satisfied, i.e. the information was provided by a source who impliedly intended that it was confidentially supplied.
§(2) If so, was it properly classified as relating to the enforcement or administration of the law?
20. The respondent argues that “…the receipt of information from the public, in tip-off situations, is information which relates to the enforcement and administration of the law: (see Re Miniter at paragraph 20 and Re Power and Secretary, Department of Family and Community Services [2002] AATA 1302 at par 18).” The respondent also maintains that receiving such information must be treated confidentially in order to identify and investigate possible abuses of social security benefits. In the present case, the purpose for which the supplier provided the information, and it would appear, the use to which Centrelink have put that information, was to determine whether Ms Forbutt was receiving her correct entitlements to social security payments. For those reasons, the respondent contends that the information is properly classified as relating to the enforcement or administration of the law.
21. Section 7 of the Social Security (Administration) Act 1999 and the general power of administration of social security law under section 8 of that Act, whereby Centrelink, in administering the law, must ensure abuses of the social security system are minimised. This, of course, requires Centrelink to investigate any claims of unlawful receipt of benefits. Even though in some cases, the information provided may not be substantiated, any such action would relate to enforcement or administration of the law (see Re Power and Secretary, Department of Family and Community Services [2002] AATA 1302.
22. In the present case, the information supplied clearly infers that there is information which Centrelink should investigate, whether correct or not. In McKenzie v Secretary, Department of Social Security (supra) at 649, Muirhead J said:
“Information prompting administrative enquiry is still properly classified as information in the hands of the department, be it true or false. The department in the exercise of its responsibility must and does regularly review the eligibility of recipients of public moneys. Some information may prove of value, some of no value.” [see page 649]
23. In that case also, his Honour referred to Re Sinclair v Secretary, Department of Social Security [AAT Decision 2357, 16 October 1985] where the presiding member in that case, the Honourable JBK Williams, considered the origins of section 37(1)(b) and stated that the section gave statutory force to pre-existing common law principles. Muirhead J, after referring to Sinclair (supra) said:
“Those cases emphasise that the confidentiality traditionally given to informers may operate to the advantage of the untruthful or malicious but nevertheless immunity may be necessary when balanced by the public advantage.”
24. The applicant has submitted that the fact that an anonymous letter is accepted makes her feel personally threatened. She also states the information is unsubstantiated, the author has malicious intent. She also says the content of the letter is defamatory and she should have access to it to discourage the author of the letter in the future. However, it is clear that the authorities all accept that the provision of anonymous information to Centrelink entitles that agency to investigate all such information, regardless of whether it is true or false, well-motivated or motivated by malice. In the present case, I am satisfied that the information contained in the letter under review was properly classified as relating to enforcement or administration of the law as set out in McKenzie’s case.
§(3) Would its release in toto disclose the identity of the confidential source or, in the alternative, could it reasonably be expected to do so?
25. This requirement, the third of Muirhead J’s requirements set out in McKenzie’s case, refers to whether release of the information in toto would identify the confidential source or could be reasonably likely to identify that source.
26. The respondent argues that “….it is necessary that there be a substantial risk that the identity of the confidential source would be disclosed if the material was released (see Jephcott and McKenzie)”. I cannot agree that this is a requirement of the law. In fact, that was the position of the Tribunal decision in Department of Health v Jephcott (supra) but on appeal, the Full Court of the Federal Court held otherwise. Forster J at 425 said that there is –
“…no room for the concept of ‘a substantial risk that the administration of the law will be impaired’. Either it is established that a source is a confidential source or it is not. If it is, then it is entitled to the protection given by s 37(1)(b) and no ‘bearing in mind’ of the purposes of the Freedom of Information Act either as set out in s 3 or discovered elsewhere can, in my view, affect the position.”
27. Also, Davies J at pages 426-7 of that case referred to “substantial risk” in the Tribunal’s decision and he said:
“In my opinion, the paragraph imports no such element.”
28. However, the respondent argues further that the documents contain information which could identify or could reasonably be expected to identify a confidential source of information if it were released.
29. It is true that the handwritten letter contains specific information unlikely to be known by many people. It is therefore highly likely that the confidential source could be identified either by the handwriting or by the information contained in the letter. Providing a typed copy of that letter might overcome some of the problems associated with handwritten documents, but it does not alleviate the potential problems associated with the specific information in that letter, as it would be likely to be able to identify the source if provided in toto. I have examined the letter released to the applicant with certain information deleted as being exempt. The material exempted is sufficiently specific to justify its deletion under the third McKenzie requirement, and in accordance with section 37(1)(b) of the Act. The Tribunal therefore finds that the third element is satisfied on that basis.
30. I therefore find that the confidential documents subject to an order under section 35(2)(c) of the Administrative Appeals Tribunal Act 1975 should be returned intact to Centrelink, and should not be provided to the applicant, other than the limited release of information already provided, that is, the typed letter with the exempt and confidential material blacked out.
31. For these reasons, the decision under review is affirmed.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Jeff Mills
Legal Research OfficerHearing on the Papers
Date of Decision 25 August 2005
The Applicant was unrepresented
For the Respondent Ms C Heffner, Departmental Advocate
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