GARNERS BEACH HABITAT ACTION GROUP Applicant And DEPARTMENT OF THE ENVIRONMENT, WATER, HERITAGE AND THE ARTS

[2010] AATA 227

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 227

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2009/4986

FREEDOM OF INFORMATION AND ARCHIVES  DIVISION		)
Re		GARNERS BEACH HABITAT ACTION GROUP

Applicant

And DEPARTMENT OF THE ENVIRONMENT, WATER, HERITAGE AND THE ARTS

Respondent

And LYNDA WILLIAMS

Party Joined

And PAUL WILLIAMS

Party Joined

DECISION

Tribunal   Senior Member Bernard J McCabe

Date  30 March 2010

Place  Cairns

Decision The application is dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

........................[Sgd]......................

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – expiration of appeal period – complaint to Obmudsman –whether exemption for unreasonable disclosure of personal information applies – whether breach of confidence exemption applies – frivolous proceedings – s 42B Administrative Appeals Tribunal Act 1975 (Cth) – application dismissed

Administrative Appeals Tribunal Act 1975 (Cth), s 42B

Environment Protection and Biodiversity and Conservation Act 1999 (Cth)

Freedom of Information Act 1982 (Cth), ss 41, 43, 45

REASONS FOR DECISION

30 March 2010 Senior Member Bernard J McCabe

1.The Garners Beach Habitat Action Group is an environmental group comprised of concerned citizens in far North Queensland. The association and its members have recently been involved in a public consultation process under the Environment Protection and Biodiversity and Conservation Act 1999 (“the EPBC Act”) in relation to a proposed development in their area. The developer utilised the Freedom of Information Act 1982 (“the FOI Act”) to seek copies of the submissions lodged under the process. After considering the objections of the applicant to the release of its submissions and other documents containing identifying information, the decision-maker in the Department of the Environment, Water, Heritage and the Arts decided none of the exemptions in the FOI Act were applicable. After the internal review process was concluded, it was decided to release the documents in question to the developer. The applicant elected not to appeal to the Tribunal at that point, preferring instead to complain to the Ombudsman. The appeal period in relation to the decision expired.

2.The documents in question have now been released in their entirety. But the applicant has decided to ask the Tribunal to rule on the question of whether the documents should have been released in any event.

3.There is no doubt that the Tribunal has the jurisdiction to review the decision. There is a question over whether the proceedings are “frivolous” in the sense that word is used in s 42B of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). I note the respondent has already asked the Tribunal to consider whether the matter should be dismissed under s 42B on the basis that there was no point persisting with the appeal because the documents in question had already been released. As a practical matter, there is nothing left for the Tribunal to do. Bearing in mind that the Tribunal’s focus is on producing correct or preferable decisions rather than inquiring generally into processes, I am inclined to agree the application in this case is futile. While the Tribunal has already considered this question, that was at an earlier stage of the process. The futility has now become manifest. The decision to release the documents cannot be unmade in a practical sense. In those circumstances, I would dismiss the matter pursuant to s 42B of the AAT Act.

4.Notwithstanding that conclusion, I will respond briefly to some of the concerns raised by the applicant. These concerns were explained Mr Perkins, its spokesperson.

5.Mr Perkins began by noting that the Department removed the names and other identifying material from submissions made by individuals before those documents were released. That was done because the release of the information would have amounted to an unreasonable release of personal information. He said (and Ms Linacre, for the respondent, agreed) that the exemption under s 41 was available to those individuals. He said the same exemption should be available in relation to submissions made by the applicant as an incorporated entity. He added that treating incorporated associations differently from natural persons would also inhibit the flow of information to decision-makers. While acknowledging that members of his association were free to make submissions to an inquiry and claim the benefit of s 41 the FOI Act, discouraging an association of individuals from making a collective submission in the name of that (incorporated) group would deprive the decision-maker of the benefit of the collective wisdom that comes from group discussion and distillation of the issues. He argues, in effect, for the exemption in s 43(1)(c)(ii) the FOI Act.

6.I understand the applicant was also arguing that the release of information amounted to a breach of confidence. That raises the question of whether the exemption under s 45 the FOI Act is available.

7.Mr Perkins also argued that the decision-maker should have suppressed the entirety of a document submitted by the secretary of the association, Mr Johnson, in his personal capacity. Mr Perkins says the contents of the documents would have alerted the developer to the identity of the author even if the author’s name had been suppressed pursuant to s 41. He pointed out that the developer was a former member of the association who would be able to make an informed guess as to the author from the sentiments that were expressed in the document.

The exemption under s 41

8.The exemption under s 41 is available where disclosure of the document (or part of the document) would amount to “the unreasonable disclosure of personal information about any person (including a deceased person)”. The expression “personal information” is defined in s 4 to mean information recorded about an “individual”. The respondent pointed out that the expression “individual” is usually taken to refer to a natural person, as opposed to other legal persons including bodies corporate. I agree. The exemption in s 41 is intended to protect the privacy of individuals, not organisations. The association’s name cannot be suppressed pursuant to s 41 in order to protect its privacy. But can it be suppressed to protect the privacy of individuals who hold office within that organisation? The officeholders’ information can be readily discovered from public registers and from the association’s correspondence and publications.

9.That is an interesting question because s 41 refers to the personal information of any person. The respondent says information about officeholders is not personal information in any event; it is, rather, information about the association that cannot be exempt. As it happens, I do not need to resolve that aspect of the dispute because I am not satisfied the disclosure would be unreasonable in any event.

10.An incorporated association is, by virtue of incorporation under statute, a publicly recognised body established for (non-profit) purposes that are declared to the world. As the name of this organisation suggests, it is an action group. If, in accordance with its constitutional objectives, it takes action in the form of submissions to a government body under a process of consultation ordained by legislation, it is fulfilling the function for which it was established. It carries on those activities through its elected office-holders. There is no reason why their identities should be treated differently in an FOI application than they would be in relation to the association’s other activities.

The exemption under s 43(1)(c)(ii)

11.I take the applicant’s point about the value of groups that distil the views of their members and present a considered, clearly articulated collective view. Undoubtedly submissions of this type may be useful in public consultation processes. Mr Perkins feared that disclosure of the personal information in the documents might deter people from participating in a group discussion and submission. He said they might prefer to protect their privacy by making an individual submission.

12.Unfortunately for the association, I do not think that the exemption in s 43(1)(c)(ii) is available in these circumstances. None of the information can be said to concern the business or professional affairs of an individual, nor can it be said to concern the commercial or financial affairs of an organisation or undertaking.

The exemption under s 45

13.Section 45 creates an exemption in respect of information in a document that could, if released, found an action for breach of confidence.

14.The applicant points to a statement made by the Department when it collected the information which creates a duty of confidentiality. The statements says:

(a)Your personal details will only be used for the purpose for which you provide them. We will not give your details to anyone without your consent, and will not add them to a mailing list.

15.The respondent says that statement does not amount to an undertaking of confidentiality. Of course, a duty of confidentiality can arise by implication as well..

16.I do not think a duty of confidentiality has arisen in the context of this case. The respondent’s statement that it would not misuse the information is a “boiler-plate” provision that is presumably intended to satisfy the requirements of the privacy legislation.  I do not think that disclosure of information in the ordinary course in response to an application under the FOI law amounts to a misuse of the information of the kind to which the notice was directed. I do not accept that a person making submissions to a public body under the terms of an Act that requires public consultation can expect his or her (or its) submissions to be treated as confidential without some clear indication that the parties regard the material as confidential.

17.I agree it would be preferable if the notice that I assume was conveyed pursuant to the privacy legislation were clarified to avoid any doubts about the way in which submissions would be handled. But even with the notice in its current form, I would not have found in favour of the applicants on this point.

Conclusion

18.The application is dismissed pursuant to s 42B of the AAT Act.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: .....................[Sgd]......................................................
  Patrick MacDonald

Date of Hearing  26 March 2010 
Date of Decision  30 March 2010
Advocate for the Applicant       Mr B Perkins

Advocate for the Respondent   Ms A Linacre