Hanna and Australian Trade Commission

[2002] AATA 624

DECISION AND REASONS FOR DECISION [2002] AATA 624

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2002/84

GENERAL ADMINISTRATIVE DIVISION          )          

Re      FAYEZ HANNA      

Applicant

And    AUSTRALIAN TRADE COMMISSION   

Respondent

DECISION

Tribunal       Senior Member M D Allen Mr S Webb, Member          

Date22 July 2002

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No N2002/84
  )  
GENERAL ADMINISTRATIVE DIVISION     )

Re:     FAYEZ HANNA

Applicant

And:     AUSTRALIAN TRADE
  COMMISSION
  Respondent

DECISION

Tribunal              Senior Member M D Allen
  Mr S Webb, Member

Date  22 July

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is VARIED in that the Respondent is to release to the Applicant the name and formal academic qualifications of the successful applicant for the position, but in all other respects the decision under review is AFFIRMED.

(Sgd)  M.D. ALLEN

..............................

Presiding Member
CATCHWORDS

FREEDOM OF INFORMATION: Application for release of names and resumes of persons selected for interview for a position with Respondent. Release opposed as disclosing personal information and unreasonable. Name and qualifications of successful applicant for position to be released to Applicant but otherwise decision affirmed.
Freedom of Information Act 1982 – ss41(1), s61
Colakovski v Australian Telecommunications Corporation 29 FCR 429
Wiseman v Commonwealth (FedCt unreported, 24 October 1989)
Re Williams and Registrar of the Federal Court 8 ALD 219
Re Hunter and Department of immigration and Ethnic Affairs 38 ALD 781
Re Dyki and Federal Commissioner of Taxation 22 ALD 124
Re Raisanen and Special Broadcasting Services Corporation (AAT unreported No N1994/347)

REASONS FOR DECISION

Senior Member M D Allen
  Mr S Webb, Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen
  Mr S Webb

Signed:         
          ..................................................................................……………………………….

Associate

Date of Hearing  22 July 2002
Date of Decision  22 July 2002

Representative for Applicant     Self represented
Solicitor for Respondent            Australian Government Solicitor

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2002/84
By  Mr M.D. Allen, Senior Member
and Mr S. Webb, Member
HANNA and AUSTRALIAN TRADE COMMISSION
SYDNEY, MONDAY, 22 JULY 2002

MR ALLEN: Pursuant to an application lodged with the Tribunal on 18 January, 2002 the applicant seeks review of a decision refusing him access under the Freedom of Information Act to the applications of 10 persons who were interviewed for the position of project manager Middle East Indian Ocean Region Office of the Australian Trade Commission.

The original application by the applicant was on 17 September 2001 sent by facsimile.  That letter reads inter alia:

Reference to the rejection letter I just received and to our telephone contact of this morning and as it appears that there is a clear case of discrimination against myself I am requesting officially a complete copies of the 10 applications selected for interview to be sent to me within 48 hours.

It would appear the applicant had been an applicant for the position which was nominated above but was not selected for interview and that following a conversation with an officer of the respondent he had been told that there were 10 persons selected for an interview.

The application to view those applications was rejected pursuant to section 41 subsection 1 of the Freedom of Information Act 1982, the particular subsection reads inter alia:

A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person.

We mention in dealing with the matter that pursuant to section 61 of the Freedom of Information Act the agency to whom the request has been made has the onus of establishing that the decision given in respect to the request was justified or that the Tribunal should give a decision adverse to the applicant.

The term, personal information, is defined in the Freedom of Information Act being a term which replaced an earlier term, namely, personal affairs. The definition of personal information, section 4, reads:

Information or an opinion whether true or not about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

Some of the early cases in respect of section 41 subsection 1 must be looked at with some caution as they refer to the earlier now deleted term personal affairs. Probably the leading case on what is personal information is an earlier case which referred to personal affairs and is that of Colakovski v Australian Telecommunications Corporation 29 FCR 429 at 436. There Lockhart J with whom Jenkins and Heerey JJ agreed said:

For myself I prefer the view that the personal affairs of a person within the meaning of subsection 41(1) and 12(2) of the FOI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not.  For example, a document may contain statements about a person's private life in the sense that his personal life which is widely known in various sections of the community, something may be notorious but its notoriety does not deprive it of the character of information relating to a person's personal affairs.  Such a document would therefore prima facie answer to the description of one which relates to the personal affairs of a person within subsection 41(1).

We would again refer to the definition itself of personal information, namely, information about an individual whose identity is apparent or can reasonably be ascertained.  Now, it seems to us at the outset that if a person has made an application together with a resume for a position in the Public Service then that application and resume, etcetera, quite definitely is personal information about that particular individual. 

It therefore remains to consider whether disclosure would be reasonable or unreasonable. What must be kept in mind in considering the disclosure of personal information is as was pointed out in re Wiseman v Defence Service Homes Corporation 14 ALR 301, that disclosure is not only to an applicant but once disclosed is disclosure to the whole world.

As to the test of what may or may not be unreasonable as was pointed out by the Full Court of the Federal Court in Wiseman v Commonwealth, an unreported decision of 24 October 1989, whether or not disclosure would be unreasonable is a question of fact and degree which calls for a balancing of all the legitimate interests involved.

As Heerey J said in Colakovski Supra at page 123:

In order to make out the subsection 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would inure to a person by reason of the disclosure such matters if present would doubtless weigh in favour of exclusion but if the information disclosed 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 I would think the disclosure would be unreasonable.

As was said also in re Williams v the Registrar of the Federal Court of Australia 8 ALD 219, a matter in which the Tribunal was constituted by Beaumont J, Senior Member McMahon as he then was, later Deputy President McMahon and Dr Renouf:

The question of reasonableness is to be determined by balancing several interests public and private involved.  This requires 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.

In this matter the persons concerned were applicants for position in the Public Service.  It was submitted by the respondent that in the present case the privacy of the individuals concerned should outweigh the general public interest in disclosure of public information particularly in relation to the nine applicants who were selected for interview but not ultimately appointed to the position.

The respondent has submitted that the personal information in such applications would have been perceived by the applicants to have been provided in confidence and the intrusion into their personal privacy on the basis that they have applied unsuccessfully for a position with a government agency is not warranted. With that submission we agree. We find nothing in the case of re Dyki v Federal Commissioner of Taxation 22 ALD 124 to the contrary.

The case of re Hutner v Department of Immigration and Ethnic Affairs, 38 ALD 781, also depends particularly on its own peculiar factual matrix. There the applications had been for membership of the Refugee Review Tribunal, a quasi judicial body, and it was held that the successful applicants had entered the public domain and their qualifications and experience should not be kept confidential. We note of course that the decision relates to the successful applicants. We consider that quite different circumstances apply in the case of unsuccessful applicants and we do not agree with the submission by the applicant that simply because a person has been selected for interview they have somehow entered into the public domain.

Indeed, that they have been selected for interview and unsuccessful is probably a stronger reason for protecting their anonymity.  One might imagine too in this day and age particularly a person would not wish the public at large indeed with particularity his current employer to find out that he had been actively applying for other positions.

There is also the situation that the applicant may have remedies in another area as was pointed out in re Wiseman Supra, release under FOI is release against the whole world.  Whereas, if release is obtained in legal proceedings then the particular Court or other curial body has the power to control the release of the information to the parties appearing before it.

The exception to all this, it strikes us, is to the successful applicant.  Normally one might have expected that a successful applicant to the particular position would have had that notified in the Commonwealth Government Gazette but we were informed that this was not the case here.  Such details as to successful applicants have in the past been released, see, for example, re Raisanen v Special Broadcasting Services Corporation, unreported AAT decision N94/347 and also re Dyki Supa.

That is not to say that everything should be available but subject to what the respondent wishes to say if anything we would order that the name of the successful applicant and his qualifications be released otherwise however we affirm the decision not to disclose any other item of information.

RECORDED   :   NOT TRANSCRIBED

MR ALLEN:   That will be the order of the Tribunal.