FTZQ and Australian Information Commissioner (Freedom of information)

[2022] AATA 5081

FTZQ and Australian Information Commissioner (Freedom of information) [2022] AATA 5081 (9 December 2022)

Division:FREEDOM OF INFORMATION DIVISION

File Number(s):      2022/3274

Re:FTZQ

APPLICANT

AndAustralian Information Commissioner

RESPONDENT

AndBody Corporate Services Pty Ltd

OTHER PARTY

INTERLOCUTORY Decision

Tribunal:Deputy President B W Rayment OAM KC

Date:9 December 2022

Date of written reasons:        7 March 2023

Place:Sydney

The Tribunal refuses the applicant's requests for orders under sections 35(3) (dated 5 October 2022) and 37(2) (dated 7 October 2022) of the Administrative Appeals Tribunal Act 1975 (Cth).

.................................[SGD].......................................

Deputy President B W Rayment OAM KC

Catchwords

FREEDOM OF INFORMATION – confidentiality order s 35 – further reasons and material s 37 – interlocutory applications refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

7 March 2023

1. There is pending in the Tribunal an application by FTZQ for review of a decision of the respondent which concerns a privacy complaint made by him to the respondent. Two interlocutory applications were made to the Tribunal and heard on 9 December 2022. They were both dismissed by the Tribunal on that day for reasons explained orally to the parties.

2. The applicant sought written reasons from the Tribunal for the making of those orders. He did so on 12 December 2022 and unfortunately, as previously explained to the parties, the request was not referred to me until early in February 2023, and on account of other business I have been unable to find time to compose these reasons until now.

3. The applicant (who represents himself) sought an order against the other party under s 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). His written application for orders under that section sought orders against the other party that within 7 days the other party must remove “all documents disclosed onto the books and records” of the body corporate that reveal the identity of the complainants in the privacy complaint, being the complaint that led to the reviewable decision, as distinct from documents filed with the Tribunal. What a party does within its own records when a privacy complaint is made with the Information Commissioner is not within the reach of s 35 of the AAT Act in my opinion.

4. Sections 35(3) and (4) are in the following terms:

   35  Public hearings and orders for private hearings, non‑publication and non‑disclosure

   3The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:

   (a)information tending to reveal the identity of:

   (i)     a party to or witness in a proceeding before the Tribunal; or

   (ii)    any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or

   (b)information otherwise concerning a person referred to in paragraph (a).

   4The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:

   (a)relates to a proceeding; and

   (b)is any of the following:

   (i)     information that comprises evidence or information about evidence;

   (ii)    any information lodged with or otherwise given to the Tribunal.

5. Those provisions authorise the Tribunal to make directions prohibiting the disclosure of the identity of persons involved in Tribunal proceedings or of information about the Tribunal proceedings. The applicant has been given a pseudonym and it has been ordered by the Tribunal that the name, address or any other information tending to reveal the identity of the applicant be not published. That direction was made on 14 July 2022 by Senior Member Lazanas, and it is not suggested that anything done by the other party has breached that direction.

6. The secrecy which the applicant seeks to obtain by that direction under s 35 relates not to issues in the pending proceedings but to the applicant’s (previous) privacy complaint. Such an order or direction is not within the powers conferred on the Tribunal under s 35 of the AAT Act in my opinion.

7. The applicant also asked the Tribunal to make directions under the same section that the other party must not disclose any material that identifies or tends to identify the applicant or his wife to any non-party to the proceedings including the owners corporation involved in the original complaint. That order claimed by the Applicant is actually unnecessary because the 14 July 2022 order implies a prohibition of the disclosure of his identity in these Tribunal proceedings by all parties.

8. Further, the applicant sought directions, purportedly under s 35 of the AAT Act, that the respondent remove from the public domain the publication of the determination of the privacy complaint. However, as stated at the interlocutory hearing on 9 December 2022, in my opinion the Tribunal does not have the power to direct the respondent to cease publishing a decision that has already been made, until the Tribunal makes a decision that finds the respondent’s decision to have been wrong.

9. Section 37 of the AAT Act required the respondent to file a record of its findings on material questions of fact and other documents in its possession or control relevant to the Tribunal’s review. The applicant applied for directions for the respondent to provide reasons, findings and materials related to the decision under review, to satisfy the s 37 obligations. The respondent has already provided decisions and reasons for decisions in the T-documents, and has stated they do not have any further documents to produce under s 37.

10. No case appears to have been made by the applicant for further reasons or materials to be provided by the respondent under s 37 of the AAT Act and I see no reason to make any such order.

11. Those are my reasons for my refusal to grant the applicant's requests for orders under sections 35(3) (dated 5 October 2022) and 37(2) (dated 7 October 2022) of the Administrative Appeals Tribunal Act 1975 (Cth).

12.     I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

.................................[SGD].......................................

Associate

Dated: 7 March 2023

Date(s) of hearing:

9 December 2022

Applicant:

In person

Solicitors for the Respondent:

Solicitors for the Other Party:

Ms S Sangha, Mills Oakley Lawyers

Mr J Browne, PICA Group Legal Services