FRQK and Secretary, Department of Human Services (Freedom of information) - [2018] AATA 940

FRQK and Secretary, Department of Human Services (Freedom of information) [2018] AATA 940 (18 April 2018)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2017/5801
Re:FRQK
APPLICANT

AndSecretary, Department of Human Services
RESPONDENT

Appeal from: 'MD' and Department of Human Services (Freedom of information) [2017] AICmr 78

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:18 April 2018
Place:Brisbane

The decision under review is affirmed.
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Deputy President Dr P McDermott RFD
CATCHWORDS
FREEDOM OF INFORMATION – Freedom of Information Act 1982 – request for access to documents from Centrelink – whether documents are exempt under the Act – whether documents contain personal information – whether there would be unreasonable disclosure of personal information – whether documents are exempt under public interest test – reasons for seeking access not relevant – documents are conditionally exempt – release of documents would involve unreasonable disclosure of personal information – disclosure would be contrary to public interest – decision affirmed.
LEGISLATION
Freedom of Information Act 1982
Privacy Act 1988
Freedom of Information Amendment (Reform) Act 2010
Social Security (Administration) Act 1999, Part 5, Division 3
A New Tax System (Family Assistance) (Administration) Act 1999, Part 6, Division 2
CASES
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
'FG' and National Archives of Australia [2015) AICmr 26
'JX' and Department of Foreign Affairs and Trade [2016] AICmr 76
'Q' and Department of Human Services [2012] AICmr 30
Australian Prudential Regulation Authority v TMeffect Pty Ltd [2018] FCA 508
SECONDARY MATERIALS
FOI Guidelines issued by the Australian Information Commissioner – Version 1.4, December 2016
Sir Anthony Mason, ‘Administrative Review: The Experience of the First Twelve Years’ (1989) 18 Federal Law Review 122
Justice Duncan Kerr, ‘Challenges Facing Administrative Tribunals – The Complexity of Legislative Schemes and Shrinking Space for Preferable Decision-Making’ (Speech delivered at the Council of Australasian Tribunals, 18 November 2013)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
18 April 2018

This is an application for the review of a decision by the Australian Information Commissioner to refuse access to documents requested by the applicant under the Freedom of Information Act 1982 (“the Act”). Under s 11(1) of the Act there is a legally enforceable right to obtain access to documents of an agency; this right of access does not extend to where the documents are exempt documents under the Act. I give my reasons why I consider that the documents are exempt documents under the Act.
REQUEST
On 13 October 2016, the applicant made a request under the Act to access certain documents held by the Department:
“The name, date, time & log the "another party" contacted Centrelink on attached letter dated 29 September 2016”.
The letter that is referenced in the request is a letter from Centrelink requesting the applicant to provide evidence of the care arrangements for her son.
PRIOR DECISIONS
On 11 November 2016, an authorised decision-maker made a decision to refuse access to three documents under section 47F of the Act.
On 26 November 2016, the applicant sought a review of the decision. On
6 January 2017, an authorised decision-maker made an internal review decision. The authorised decision-maker found that the documents that were referenced in the original decision were not within the scope of the request. The authorised decision-maker considered that two other documents came within the scope of the request and decided to refuse access to the two documents under section 47F of the Act.
The applicant made an application to the Australian Information Commissioner for the review of the internal review decision. On 30 August 2017, the Australian Information Commissioner made a decision to affirm the internal review decision. On
25 September 2017, the applicant made an application to this Tribunal to review the decision of the Australian Information Commissioner.
This Tribunal has jurisdiction under s 57A of the Act to review the decision of the Australian Information Commissioner.
CONSIDERATION
(a)Whether the documents contain personal information
Section 47F of the Act relevantly provides:
47F Public interest conditional exemptions—personal privacy
General rule
(1)A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2)In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(a)the extent to which the information is well known;
(b)whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c)the availability of the information from publicly accessible sources;
(d)any other matters that the agency or Minister considers relevant.
The definition of “personal information” in s 4(1) of the Act provides that “personal information” has the same meaning as in the Privacy Act 1988. Section 6(1) of the Privacy Act 1988 provides:
personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
The Australian Information Commissioner has issued Guidelines under s 93A(1) of the Act. Section 93A(2) of the Act provides that regard must be had to the Guidelines for the purposes of performing a function, or exercising a power, under the Act. Certainly what is important in my consideration is that the Guidelines have a statutory foundation.[1] There are examples in other legislative regimes where mandatory relevant considerations are intended to ensure consistency in decision-making.[2]
[1] See Sir Anthony Mason, ‘Administrative Review: The Experience of the First Twelve Years’ (1989) 18 Federal Law Review 122, 127; Justice Duncan Kerr, ‘Challenges Facing Administrative Tribunals – The Complexity of Legislative Schemes and Shrinking Space for Preferable Decision-Making’ (Speech delivered at the Council of Australasian Tribunals, 18 November 2013) (retrieved from: Cf., Australian Prudential Regulation Authority v TMeffect Pty Ltd [2018] FCA 508 at [66] per Perry J.
While the guidelines need to be considered they are not binding on the Tribunal. This was recognised in Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 at [33].
The Guidelines restate the definition of “personal information” in the Privacy Act 1988 by providing: “Personal information means information or an opinion about an identified individual” (6.128). The Guidelines also provide that: “Personal information can include a person’s name” as well as the “address” of that person (6.130).
I have inspected both documents. I am satisfied that both documents contain personal information of a third party. Having regard to the definition of “personal Information” in s 6 of the Privacy Act 1988, the information is certainly information about an identified individual. The definition does not require an evaluation of whether the information is true or not. The information is in terms of the definition recorded in a material form. Document 1 is a record of information provided to the Department by the third party. Document 2 is a record of the times and dates when the third party contacted the Department. Both documents contain the name and Centrelink customer record number of the third party. Document 2 also contains the address of the third party.
(b)Whether there would be the unreasonable disclosure of personal information
The name, address and customer record number of the third party is clearly personal information, so if the disclosure of this personal information would be an unreasonable disclosure of that personal information, then the documents are conditionally exempt under s 47F of the Act.
The Guidelines provide some guidance as to whether disclosure would be unreasonable. The Guidelines refer to some decisions on the similarly worded predecessor provision to s 47F of the Act that were decided before the insertion of the conditional exemption provision by the Freedom of Information Amendment (Reform) Act 2010.
The Guidelines refer to the decision of this Tribunal in Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437, where Deputy President Hall remarked:
“Whether a disclosure is “unreasonable” requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. ...
... it is also necessary in my view to take into consideration the public interest recognised by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.”
In Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429, Heerey J remarked that disclosure would be unreasonable “…if the information disclosure were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed”.
In 'FG' and National Archives of Australia [2015) AICmr 26, the Australian Information Commissioner was required to consider whether it was unreasonable to release the identity of a third party who had requested archived documents relating to the applicant to the Australian Information Commissioner review. The Australian Information Commissioner set out some of the matters that can potentially be considered in deciding whether disclosure of personal information would be ‘unreasonable, including any opposition to disclosure expressed or likely to be held by that person. The Australian Information Commissioner found it would be unreasonable to disclose the information requested by the applicant that would identify the requester and remarked:
“I am persuaded by the importance of safeguarding the privacy of a person who has accessed a government service that is made freely available to members of the public on the basis and in the expectation that a person's use of the service will be kept confidential by the agency. I believe it would undermine that important feature of government service delivery if an agency was unable to maintain that promise of confidentiality”.
In considering whether the disclosure of the documents would involve the unreasonable disclosure of personal information, it is important to have regard to each paragraph on
s 47F(2) of the Act and I express my conclusions on each paragraph.
Having regard to paragraph (a) of s 47F(2) of the Act which requires consideration of the extent to which the information is well known, I have concluded that the information is not well known.
Paragraph (b) of s 47F(2) of the Act requires consideration of whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document. The third party is associated with the matters dealt with in the document as the third party has provided the information which is recorded.
Paragraph (c) of s 47F(2) of the Act requires consideration of the availability of the information from publicly accessible sources; the information is not available from publicly accessible sources.
Paragraph (d) of s 47F(2) of the Act requires consideration of any other matters that a decision-maker considers relevant. The respondent contends that the confidentiality provisions in social security law[3] would give the third party an expectation of a high level of confidentiality in regard to information provided by the third party to the Department. While these confidentiality provisions do not prevent disclosure of documents under the Act, it is contended that the third party would object to the release of personal information. As I mentioned earlier in these reasons, this was a consideration that Deputy President Hall enunciated in Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437. The Guidelines recognise that the test of 'unreasonableness' implies a need to balance the public interest in the disclosure of government-held information and the private interest in the privacy of individuals [6.138]. I have made an assessment that the documents contain information which the third party would not wish to have disclosed without consent.
[3] Social Security (Administration) Act 1999, Part 5, Division 3; A New Tax System (Family Assistance) (Administration) Act 1999, Part 6, Division 2.
Document 1 contains what the Guidelines refer to as 'intertwined personal information' [6.149], being some personal information relating to the applicant. I consider that it is not possible to separate the Applicant's personal information from the third party's personal information. The Guidelines provide that where it is not possible to separate an applicant's personal information from a third party's personal information, the exemption may be claimed if it is unreasonable to release the information [6.150]. There was no submission that the application of the Guidelines is unjust.
Having regard to these considerations, I consider that the disclosure of documents would involve the unreasonable disclosure of personal information and is conditionally exempt.
(c)Public interest test
Having ruled that both documents are conditionally exempt, I must now consider whether to give the applicant access to the document pursuant to subsection 11A(5) of the Act which provides:
The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
In Secretary, Department of Defence and Thomas [2018] AATA 604 at [64] it was recently observed that Note 3 to s 11A of the Act is somewhat misleading in that, by s 11B(2),

s 11B expressly provides that it does not limit s 11A(5) so that s 11B of the Act is “best regarded as a non-exhaustive catalogue of relevant and irrelevant considerations when addressing whether access would, on balance, be contrary to the public interest”.
Section 11B of the Act provides:
11B Public interest exemptions – factors
Scope
(1)This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
(2)This section does not limit subsection 11A(5).
Factors favouring access
(3)Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a)promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b)inform debate on a matter of public importance;
(c)promote effective oversight of public expenditure;
(d)allow a person to access his or her own personal information.
Irrelevant factors
(4)The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a)access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b)access to the document could result in any person misinterpreting or misunderstanding the document;
(c)the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d)access to the document could result in confusion or unnecessary debate.
Guidelines
(5)In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.
I do not consider that any of those factors in s 11B(3) of the Act, which favour access to a document in the public interest, operate in this instance. One of those factors is to promote the objects of the Act. In 'JX' and Department of Foreign Affairs and Trade [2016] AICmr 76, the Australian Information Commissioner remarked at [30]: “The objects of the FOI Act explain that Parliament intends the FOI Act to promote Australia's representative democracy, and increase recognition that information held by Government is to be managed for public purposes, and is a national resource.” I do not consider that there can be any basis for a finding that to provide access to the documents can promote the objects of the Act as the documents relate to the care of an individual child.
I also do not consider that any of the factors in s 11B(4) of the Act have any relevance.
I have earlier mentioned s 11B(5) of the Act which requires that there has to be regard to the public interest factors included in the Guidelines. In Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 at [24] Jagot J remarked that Section 93A relates to the public interest factors in the guidelines which must be taken into account.
The Guidelines [6.5] provide that the public interest test is considered to be:
·something that is of serious concern or benefit to the public, not merely of individual interest;
·not something of interest to the public, but in the interest of the public;
·not a static concept, where it lies in a particular matter will often depend on a balancing of interests;
·necessarily broad and non-specific; and
·related to matters of common concern or relevance to all members of the public, or a substantial section of the public.
I have had regard to the guidelines that were issued by the Australian Information Commissioner under s93A of the Act for the purposes working out whether access to the document would, on balance, be contrary to the public interest pursuant to s11B(5) of the Act. There are no public interest factors in the Guidelines which provide a basis for providing access to the documents.
In Secretary, Department of Defence and Thomas [2018] AATA 604 at [74] it was observed that s 11A(5) of the Act “expressly adopts a balancing test”. The Guidelines contain a number of public interest factors against disclosure which have relevance to this application. I have given significant weight to two public interest factors against disclosure to conclude that on balance the documents should be exempt because the affording of access would be contrary to the public interest. First, the release of the documents “could reasonably be expected to prejudice the protection of an individual’s right to privacy” [6.22(a)] as there would be the disclosure of the personal information (including the name and address) of the third party. Secondly, I earlier mentioned that the documents are protected under confidentiality provisions of social security law, and the release of the documents “could reasonably be expected to prejudice an agency’s ability to obtain confidential information” [6.22(h)].[4] In my assessment individuals would be reluctant to provide information to the Department if that information could be accessed under the Act.
[4] 'Q' and Department of Human Services [2012] AICmr 30 at [17].

The applicant has stated that she requires the documents under review for the purposes of a family law court dispute. However, under s 11(2)(a) of the Act an applicant's right to access documents under the Act is not affected by "any reasons the person gives for seeking access". There is in my view some validity in the view that obtaining access to documents through the Act is not intended to replace court processes which supervise the provision of documents to parties.[5]
[5] 'Q' and Department of Human Services [2012] AICmr 30 at [17]; 'JX' and Department of Foreign Affairs and Trade [2016] AICmr 76 at [30].
CONCLUSION
I consider that the authorised decision-maker was correct in identifying the two documents as coming within the scope of the request: the affidavit that was filed on 5 February 2018 is comprehensive in explaining how those documents came within the scope of the request.[6] The two documents, which are identified in the Schedule of Documents filed by the respondent on 5 February 2018, are conditionally exempt under the Act because the release of the documents would involve an unreasonable disclosure of personal information (s 47F(1)), and disclosure of the material would, on balance, be contrary to the public interest (s 11A(5)).
[6] Exhibit B, Affidavit of Ms Vicki Porter dated 1 February 2018.
DECISION
I affirm the decision of the Australian Information Commissioner made on 30 August 2017.

38. I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate
Dated: 18 April 2018

Date of hearing: 16 March 2018

The Applicant: In person

Advocate for the Respondent: Mr J Anderson

Date of hearing:	16 March 2018
The Applicant:	In person
Advocate for the Respondent:	Mr J Anderson