HACI UGUR and COMMONWEALTH OMBUDSMAN
[2009] AATA 695
•11 September 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 695
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0635
GENERAL ADMINISTRATIVE DIVISION ) Re HACI UGUR Applicant
And
COMMONWEALTH OMBUDSMAN
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date11 September 2009
PlaceSydney
Decision The decision under review is affirmed. ......................sgd........................
Ms N Bell, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION - request for documents - refusal to grant access to documents – whether release of documents directly to Applicant might prejudice his physical or mental health or well-being – should documents be released via a medical practitioner nominated by the Applicant – decision under review is affirmed.
Freedom of Information Act 1982 (Cth)
Re “K” and Director-General of Social Security [1984] 6 ALD 354
McLennan and Centrelink [2007] AATA 1302
Kapeen-Gangitano and Secretary, Department of Family and Community Services [2003] AATA 1163
REASONS FOR DECISION
11 September 2009 Ms N Bell, Senior Member 1. Mr Haci Ugur was born in Turkey and arrived in Australia in 1990 on a student visa. After this visa expired, Mr Ugur did not apply for another. He lost his Turkish citizenship and was in detention at Villawood Detention Centre for five years.
2. Whilst in detention, Mr Ugur was taken to Bankstown Hospital twice after staff at the Detention Centre became concerned for his mental health. However, while he was found to be suffering from delusional disorder, he was not found to be thought disordered or dangerous and so not deemed to be at sufficient risk to be treated under the NSW Mental Health Act 1990.
3. Mr Ugur refused treatment.
4. Eventually, the Department of Immigration and Multicultural Affairs sought a Guardianship Order in respect of Mr Ugur so that he could be treated and accommodated and therefore released from detention. It was considered that detention was exacerbating his psychiatric condition. An order was made by the Guardianship Tribunal on 16 February 2007 for a period of 12 months. The order was not renewed.
5. In making the Guardianship Order, the Guardianship Tribunal relied on the opinion of Dr Selwyn Smith, Psychiatrist. The Tribunal found that Mr Ugur had a disability, that he was a person in need of a guardian, within the meaning of the Guardianship Act 1987, and that a guardian should be appointed to make decisions about Mr Ugur’s medical treatment, health care, services, accommodation and legal advocacy. At all times, Mr Ugur objected to the appointment of a guardian.
6. Leading up to the Guardianship Order, Mr Ugur made a range of complaints to the Commonwealth Ombudsman mainly about the treatment he received whilst in detention. These complaints included allegations that he had received electric shocks, had microchips implanted in his teeth and that he had been used in various ways for experimental purposes.
7. By letter of 10 July 2007, Mr Ugur requested the Ombudsman to provide access to various documents under the provisions of the Freedom of Information Act 1982 (the FOI Act) in the following terms:
…
I would like access to all my personnel files from Commonwealth Ombudsman office for example copies of my records about my situation in VIDC, I request my letters and the responses by Commonwealth Ombudsman Office and the Investigation officers reports, notes, records and DIAC (DIMA), GSL or HMS responses…
The Ombudsman Office inquiries and responses by DIAC (DIMA), GSL AND IHMS Centre Management concerning me…
The Ombudsman Office inquiries and responses by DIAC (DIMA) Canberra Office concerning me…
The Ombudsman Office inquiries and responses from IMHS Medical Service head office at level 12, Challis house 4 Martin Place, Sydney and other Medical Services and Doctors concerning me.
…
8. On the first date of the hearing of Mr Ugur’s application, the Ombudsman provided a number of documents to Mr Ugur intact, and some were redacted on the basis that they contained irrelevant material. At the resumed hearing 12 documents, or parts of documents, were claimed to be exempt after further documents were released to Mr Ugur by the Ombudsman. The Tribunal’s review is now limited to the decisions made in respect of these remaining documents. The documents on which a range of exemptions under the FOI Act are claimed, and on which the condition of release through another party is imposed, are as follows:
Document No. File Folio Description Date Decision 2006-2580135 (part 2) 38 Internal e-mail 19-Jul-06 Release via doctor – s.41(3) 153 E-mail from DIAC to Ombudsman 18-Sep-06 Release via doctor 2006-2580135 (part 1) 132-136 Emedicine - article 5-Mar-06 Release via doctor 137-140 File note not dated Release via doctor 177-178 E-mail from DIAC to Ombudsman 25-May-06 Release via doctor 2006-2580135
(paper file)135 Internal e-mail 16-Mar-06 Release via doctor 13 120-122 Internal e-mails 10-Mar-06 Exempt s 36(1) 14 136-139 Hand written file note 16-Mar-06 Exempt s 45 15 142 Record setting out source and information provided in confidence 11-Apr-06 Exempt s 45 17 112-113 Handwritten file note undated Exempt s 36(1) 18 115-120 Draft report under s 486O, Migration Act undated Exempt s 36(1) 25 2006-2580135 (part 2) 41-42 Internal emails July -2006 Exempt s 36(1). 26 44-46 Internal emails various Exempt s 36(1) 27 144-145 Hand written file note 18-Aug-06 Exempt s 36(1) 30 2007-2580135 (part 3) 129 Internal minute 18-Jul-07 Exempt s 36(1) 31 2007-200060 (electronic) various Part of Resolve record various Exempt s 36(1) 32 2007-200060 70-71 Internal minute 20-Apr-07 Exempt s 36(1) 33 72-74 Internal e-mails May -2007 Exempt s 36(1) 9. I note that on the last day this application was heard, at the end of the proceedings, Mr Ugur requested me to “step aside” on the basis that I had not afforded him procedural fairness and I had decided his substantive application without listening to what he had to say. I have considered this as an application for me to disqualify myself.
10. I note that the application was made after I refused his request for another adjournment. The purpose of the requested adjournment, as far as I could glean, was to obtain a “certificate” from the Ombudsman to allow Mr Ugur to obtain legal representation. My attempts to point out that no such certificate was either required or available were met with increasing anger by Mr Ugur.
11. I am satisfied, after reading the transcript of proceedings, that Mr Ugur was afforded procedural fairness. I am satisfied that I listened to what he had to say, and, in particular allowed him to read out onto the transcript long tracts of prepared submissions. I reject the application to disqualify myself.
issues
12. The table above indicates the sections of the FOI Act under which exemptions are claimed by the Ombudsman. The issues for me to consider are whether the exemptions properly apply to and exempt the documents listed and whether some documents should be provided to Mr Ugur via a medical practitioner of his choice. The provisions of the FOI Act under which the Ombudsman claims exemptions are:
Section 36(1) Internal working documents
(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.
(2) In the case of a document of the kind referred to in subsection 9(1), the matter referred to in paragraph (1)(a) of this section does not include matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1).
(3) Where a Minister is satisfied, in relation to a document to which paragraph (1)(a) applies, that the disclosure of the document would be contrary to the public interest, he or she may sign a certificate to that effect (specifying the ground of public interest in relation to which the certificate is given) and, subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the disclosure of that document would be contrary to the public interest.
(4) Where a Minister is satisfied as mentioned in subsection (3) by reason only of matter contained in a particular part or particular parts of a document, a certificate under that subsection in respect of the document shall identify that part or those parts of the document as containing the matter by reason of which the certificate is given.
(5) This section does not apply to a document by reason only of purely factual material contained in the document.
(6) This section does not apply to:
(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b) reports of a prescribed body or organization established within an agency; or
(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.
(7) Where a decision is made under Part III that an applicant is not entitled to access to a document by reason of the application of this section, the notice under section 26 shall state the ground of public interest on which the decision is based.
(8) The responsible Minister of an agency may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him or her, delegate to the principal officer of the agency his or her powers under this section in respect of documents of the agency.
(9) A power delegated under subsection (8), when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the responsible Minister.
(10) A delegation under subsection (8) does not prevent the exercise of a power by the responsible Minister.
Section 45: Documents containing material obtained in confidence
…
(1) A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.
(2) Subsection (1) does not apply to any document to the disclosure of which paragraph 36(1)(a) applies or would apply, but for the operation of subsection 36(2), (5) or (6), being a document prepared by a Minister, a member of the staff of a Minister, or an officer or employee of an agency, in the course of his or her duties, or by a prescribed authority in the performance of its functions, for purposes relating to the affairs of an agency or a Department of State unless the disclosure would constitute a breach of confidence owed to a person or body other than:
(a) a person in the capacity of Minister, member of the staff of a Minister or officer of an agency; or
(b) an agency or the Commonwealth.
13. In addition, the Ombudsman relies on the following provision in respect of some documents concerning Mr Ugur’s medical condition:
Section 41: Documents affecting personal privacy
(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
(3) Where:
(a) a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person; and
(b) it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant's physical or mental health, or well‑being;
the principal officer or Minister may, if access to the document would otherwise be given to the applicant, direct that access to the document, so far as it contains that information, is not to be given to the applicant but is to be given instead to a qualified person who:
(c) carries on the same occupation, of a kind mentioned in the definition of qualified person in subsection (8), as the first‑mentioned qualified person; and
(d) is to be nominated by the applicant.
(4) Subject to subsection (5), where:
(a) access to a document has been given to a person; and
(b) the document contains personal information of a medical or psychiatric nature, about the person that has been provided by, or has originated from, a qualified person acting in his or her capacity as a qualified person; and
(c) access was not given with the qualified person's knowledge;
the principal officer or Minister (as the case may be) must notify the qualified person that access to the document has been so given.
(5) Subsection (4) does not apply if it is not reasonably practicable to notify the qualified person.
(6) Without limiting the matters that may be considered in deciding whether it is not reasonably practicable to notify the qualified person, consideration is to be given to:
(a) the length of time since the information was provided by, or originated from, the qualified person; and
(b) the likelihood that the qualified person is still carrying on the same occupation; and
(c) the frequency with which, but for subsection (5), the principal officer or Minister would be required to make notifications under subsection (4); and
(d) the resources available to make such notifications.
(7) The powers and functions of the principal officer of an agency under this section may be exercised by an officer of the agency acting within his or her scope of authority in accordance with arrangements referred to in section 23.
(8) In this section:
"qualified person" means a person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well-being, and, without limiting the generality of the foregoing, includes any of the following:
(a) a medical practitioner;
(b) a psychiatrist;
(c) a psychologist;
(d) a marriage guidance counsellor;
(e) a social worker.
are documents 13, 17, 18, 25, 26, 27, 30, 31, 32, and 33 exempt under section 36(1) of the FOI act?
14. Documents 13, 25, 26, 27 and 30 show the processes by which the Ombudsman gathers and tests sensitive information from agencies and other sources. I accept the Ombudsman’s submission that this activity is critical to its deliberative functions and provides the basis on which decisions to pursue investigations, report or make comments is made.
15. In relation to documents 17 and 18, I accept the Ombudsman’s submission that those documents contain assessment and internal discussion about matters that go towards establishing the final position of the Ombudsman on complaints and associated matters. They do not present the final position of the Ombudsman after investigation.
16. Documents 31, 32 and 33 contain what appear to be preliminary express or implied criticisms discussed within the Ombudsman’s office or communicated for the purposes of procedural fairness. I accept that these criticisms were either altered or not proceeded with prior to formal and widely circulated communication.
17. I am satisfied that, as submitted by the Ombudsman, disclosure of these items would be contrary to the public interest because it would create confusion about decisions that were ultimately made and those that were simply contemplated and would distract and detract from the efficacy of the Ombudsman’s office in performing its deliberative functions. Where information is gathered for the purpose of performing the Ombudsman’s functions, it is in the public interest that agencies provide frank information in the knowledge that it will be treated in confidence in accordance with established internal procedures. Where documents contain criticism of an agency or procedure and those criticisms are preliminary or tentative, or ultimately not proceeded with, it may be damaging for an agency to have such speculative positions communicated beyond the Ombudsman’s office. The potential for such communication outside the Ombudsman’s office may interfere with the proper consideration of matters under investigation and the development of a final position.
18. I consider that the documents are exempt under section 36(1) of the FOI Act.
are documents 14, 15 and 30 exempt under section 45 of the FOI act?
19. Documents 14, 15 and 30 are records of discussions with a source of information outside any Commonwealth agency. The records set out the name and contact details of the source and note a range of information provided. The Ombudsman submitted that this information was provided and received in confidence. The nature of the information and opinion contained in the documents suggests that it was provided in confidence and with the expectation that it would not be communicated to any other party.
20. I am satisfied that the documents are exempt under section 45 of the FOI Act.
should access to folios 38 and 153 of file number 2006-2580135 (part 1) and folios 132-136, 137-140, 177-178 file number 2006-2580135 (part 2) and folio 135 of paper file number 2006-2580135 be released to Mr Ugur via a medical practitioner nominated by him?
21. These documents concern Mr Ugur’s medical condition and contain opinion from various medical practitioners.
22. The Ombudsman submitted that the nature of the documents and the fact that Mr Ugur had been the subject of a Guardianship Order suggest that a careful approach should be taken to ensure that he suffers no adverse effect on his health or well being.
23. Mr Ugur insists that he is healthy and competent and does not need the assistance of any person in relation to medical information or opinion about him. I invited Mr Ugur to provide medical evidence of his fitness and acceded to his request for an adjournment for this purpose. He did not produce any evidence.
24. Deputy President Smart in Re “K” and Director-General of Social Security [1984] AATA 252, considered that the following three factors are raised by section 41(3) of the FOI Act:
(a) Does the document in sought contain information of a medical or psychiatric nature concerning the applicant?
(b) If the information were disclosed directly to the applicant was there a real and tangible possibility as distinct from a fanciful, remote or far-fetched possibility of prejudice to the physical or mental health or well-being of the applicant?
(c) If there were such a real or tangible possibility of prejudice was this an appropriate case in which to exercise their discretion contemplated by the section to direct that access be given to a medical practitioner rather than the applicant? In the exercise of that discretion the decision-maker has to consider all the circumstances and balance the relevant factors. Two important factors are the nature and extent of any real and tangible possible prejudice and the likelihood of it occurring.
25. First, I find that the documents contain information of a medical and psychiatric nature concerning Mr Ugur. Second, I find that there is a real and tangible possibility of prejudice to the physical or mental health or well-being of Mr Ugur were he to receive the documents without the support of an explanation by a qualified medical practitioner. I note that from 2003 to 2008 Mr Ugur was held at the Villawood Immigration Detention Centre and claims that during his five years in detention he was continually given “electric shocks” by the Department of Immigration and officers at the Centre. He claimed to have been constantly suffering pain and that his health was badly affected. He also claimed that the mistreatment had occurred because he was being used illegally as “an experiment in the detention centre” without his consent. The nature of this statement and the fact that Mr Ugur has been the subject of a Guardianship Order call for a careful approach concerning the consequences of disclosure.
26. I therefore conclude that, notwithstanding Mr Ugur’s wish to have direct access to the documents, it is preferable that the discretion conferred by section 41(3) of the FOI Act be exercised, and that access to the documents not be given to Mr Ugur, but instead be given to a qualified medical practitioner nominated by Mr Ugur who will be able to explain and assist him with the information and any other concerns that may arise from the documents
DECISION
27. The decision under review is affirmed.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ...................................sgd................................................
Felicia Daniele: AssociateDate/s of Hearing 21 August 2008 and 14 May 2009
Date of Decision 11 September 2009
Appearance for the Applicant Mr Haci Ugur
Appearance for the Respondent Ms J Agostino, Senior Legal/Policy Adviser Commonwealth Ombudsman