Hayes, George v Secretary, Department of Social Security

[1996] FCA 1078

CATCHWORDS

ADMINISTRATIVE LAW - Administrative Appeals Tribunal - appeal - freedom of information - request for access refused - whether source of information confidential - whether disclosure of letter could reveal identity of source - whether s 37(1)(b) Freedom of Information Act 1982 protects author of misinformation - no error of law - appeal dismissed.

Freedom of Information Act 1982 s 11(1)(a) and s 37(1)(b)
Administrative Appeals Tribunal Act 1975 s 44

Re Sinclair and Secretary to the Department of Social Security     (1985) 9 ALD N127
McKenzie v Secretary to Department of Social Security (1986) 65 ALR 645
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)    162 CLR 24
Re Jephcott and Secretary, Department of Health (1985)    7 ALD 215
Department of Health v Jephcott (1985) 62 ALR 421
Re Liddell and Department of Social Security (1989-1990) 20 ALD 259

No SG 79 of 1996

GEORGE HAYES v SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Mansfield J
Adelaide
6 December 1996

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 79 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:

GEORGE HAYES

Applicant

- and -

SECRETARY, DEPARTMENT
  OF SOCIAL SECURITY

Respondent

MINUTES OF ORDER

CORAM:    Mansfield J
PLACE:    Adelaide
DATE:     6 December 1996

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 79 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:

GEORGE HAYES

Applicant

- and -

SECRETARY, DEPARTMENT
  OF SOCIAL SECURITY

Respondent

REASONS FOR JUDGMENT

CORAM:    Mansfield J
PLACE:    Adelaide
DATE:     6 December 1996

This is an appeal from a decision of the Administrative Appeals Tribunal ("the AAT") given on 6 September 1996.  The AAT affirmed a decision of a Freedom of Information Review Officer made on 4 April 1995 which affirmed a decision of a Freedom of Information Officer dated 24 March 1995 exempting the release of certain documents held on the file of the appellant by the Department of Social Security ("the Department"), pursuant to s37(1)(b) of the Freedom of Information Act 1982 ("the FOI Act").

Background

The appellant was born on 24 April 1938.  He has been in

receipt of a disability support pension ("DSP") since 1 February 1990.  On 27 April 1993, the Department received a letter from a member of the public which contained adverse information concerning the appellant's entitlement to DSP.  The letter was handwritten, unsigned, and did not include the name or address of the author.  It alleged that the appellant was overseas without having notified the Department and that he may not have been medically qualified to receive DSP.  It claimed that he undertook activities such as painting and car repairs for family and friends, and alleged that he was receiving undeclared income from various other activities including his buying and selling trash and treasure.

The Department did not pursue those allegations immediately, although it would normally have done so.  On 6 January 1995, a standard review of the appellant's pension entitlement led to those allegations being put to him.  They were refuted.  It is accepted by the Department that none of the allegations made against him were correct, and that those allegations ought properly to have been put to him at an earlier time.  The Department has acknowledged those matters and expressed its regret for the delay, and for the upset caused to the appellant by the allegations being put to him.

On 16 March 1995 the appellant sought access to, and a copy of, his DSP file, including the letter received by the Department on 27 April 1993 containing the incorrect allegations against him under the FOI Act. The Freedom of Information Review Officer decided that the appellant should have access to his file, except for that letter (which is identified as being folios 56-59 in that file). The exemption was made under s37(1)(b) of the FOI Act on the basis that the release of that letter in its original form could reasonably be expected to enable the appellant to identify the author because of the handwriting, the specific nature of the information provided and the spelling and grammatical style used.

Section 11 of the FOI Act provides that, subject to the Act, every person has a legally enforceable right to obtain access in accordance with the Act to a document of an agency, other than an exempt document: s11(1)(a). Section 4 of the FOI Act defines an exempt document for present purposes to mean a document which, by virtue of a provision of Part IV, is an exempt document. Part IV of the FOI Act includes s37 which relevantly provides:

"(1)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

. . .

(b)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; ...".

Thus, if the letter received by the Department on 27 April 1993 falls within s37(1)(b) of the FOI Act, it is an exempt document and need not be produced to the appellant.

The AAT's Reasons

After referring to a number of authorities including Re Sinclair and Secretary to the Department of Social Security (1985) 9 ALD N127, the AAT approached the review on the basis of three questions which it derived from the reasons of Muirhead J in McKenzie v Secretary to Department of Social Security (1986) 65 ALR 645, at 649. Those questions are:

"(1)Was the letter in question a confidential source of information?

(2)If so was it properly classified as relating to the enforcement or administration of the law?

(3)Would its release in toto disclose the identity of the confidential source or in the alternative could it reasonably be expected to do so?"

The AAT drew the inference that the information was provided under an implied request for confidentiality, because the writer had not provided his or her name, address or signature and so implicitly had expressed a desire not to be identified or contacted by the Department.  It found that the letter was received in confidence by the Department, based upon the evidence before it of a regional manager, that such information was from time to time received from members of the public, frequently in unsigned letters which bear no address, and is treated confidentially by the Department.  It also found that the nature of the information itself indicated a confidential source, observing that it related to alleged breaches of the Act and "can thus be compared to information provided by police informers, which is treated with confidence."  It also found that the fact that the allegations in the letter have been found to be false did not remove from it the quality of confidentiality.  It observed that the circumstances in which the letter was written together with the departmental practice under which it was received satisfied the test that the letter was a confidential source of information, even if the information provided by it had been deliberately false or mischievous.

On the second question, the AAT found that the letter was properly classified as relating to the enforcement or administration of the law.  I do not need to address the reasons for that finding as it was not challenged on appeal.

Finally, the AAT concluded that there were reasonable grounds for the Department concluding that the disclosure of the letter, whether in its original or typed form, could reasonably be expected to enable the appellant to ascertain the identity of its author.  That was based upon the handwriting, on the specific assertions made and on the spelling in the letter, together with the very specific information contained within it.

The appellant in submission made it plain that the purpose of the application was to identify the source of the information (or misinformation) provided to the Department.  He obviously has a very strong sense of grievance arising from these false allegations having been made about him, and apparently compounded by the delay on the part of the Department in confronting him with them.  He is most concerned that anonymous information can be received in circumstances where, even if the information is maliciously provided, the provider of that information can be protected by exemption under the Act.  The fact that someone apparently within his range of acquaintances has made such allegations about him has caused him and his wife very great distress.  He and his wife, as he put in submission, are distrustful now of all their acquaintances and have become somewhat reclusive and isolated because they do not know who among their acquaintances was the source of the letter.  From his point of view, unless the author of the letter can be identified, he says that attitude is likely to persist and it is only by the identification of the author of the letter that he and his wife will be able to deal socially with all their other acquaintances without distrust and ill-feeling.  I am very sympathetic to those concerns on the part of the appellant.  But of course I am constrained to act only in accordance with the law in considering the appeal from the decision of the AAT.

The issues on appeal

It is important to bear in mind that this matter is before the Court pursuant to s44 of the Administrative Appeals Tribunal Act 1975, limited therefore to a question of law. It is not a matter in which the Court can rehear the issue generally, or can substitute its own view on the facts for the views reached by the AAT: see generally Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355-357; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J (as he then was) at 39-42.

The appellant complained that the AAT had erred in failing to properly take into account the dissenting judgment of Mr W A DeMaria, member in Re Sinclair and Secretary, Department of Social Security (1985) 9 ALD N127.  That report does not contain the detailed reasons of Mr DeMaria, and I have had regard to the original decision and reasons delivered on 16 October 1985 in matter Q85/47.

In that case a hand printed and signed letter, but without providing an address of the author, was written to the Department alleging that Sinclair, who was in receipt of a widow's pension, was in receipt of undisclosed income from various sources. After investigation, the allegations in the letter were found to be ill-conceived. The claim under the FOI Act for a copy of the letter failed, although evidence showed that Sinclair had been harassed for some years, and that the identification of the person responsible for the
harassment (potentially the same person as the author of the letter) might be beneficial to her health. The AAT by majority (the Hon JBK Williams, CBE, Senior Member, and Mrs H Pavlin, Member) took the view that s37(1)(b) gave statutory recognition to the common law principles which applied to informers to law enforcement agencies, and thus the provision of the information was such that the identity of the informant should be protected. It concluded also, independently of that common law test, that the circumstances surrounding the writing of the letter and especially the failure to supply an address led to the inference that the author was desirous of anonymity and so was written in circumstances of confidentiality. Muirhead J in McKenzie (above) based his decision on the terms of the section, without the need to decide whether common law principles per se were taken into it.  I also see no need in this matter to address that question.  Mr DeMaria, in his dissenting judgment, concluded:

(a)that, on the evidence, the author of the letter was not a confidential source of information, and

(b)there was no likelihood that disclosure would pose a substantial risk to the administration of the Act by deterring future informants.

In reaching that latter conclusion, he referred and relied upon a decision of Re Jephcott and Secretary, Department of Health (1985) 7 ALD 215.

On that latter point, the Jephcott decision was the subject of appeal to this Court:  Department of Health v Jephcott (1985) 62 ALR 421. It was a case in which Jephcott sought access to a document allegedly supplied by her sister regarding her care of her late mother. The Department neither confirmed nor denied the existence of such a document (cp. s25 of the FOI Act), and in any event declined to produce such putative document under s37(1)(b) of the Act. The Full Court (Forster, Keely and Davies JJ) all reached the firm conclusion that the test prescribed for exemption under s37(1)(b) did not involve any balancing of public interest, and that once it was concluded that the identity of the source of information was confidential, then it was not proper to consider whether there were other factors such as a substantial risk to the proper operation of the Act or some countervailing public interest in determining whether the document was exempt. See eg. per Forster J at 425 where he said:

"No doubt the main reason for protecting the identity of informants is to encourage them and others like them to give information, or at least not to discourage them from doing so, in order to assist the enforcement or the administration of the law ...  However, there seems to me with all respect to the tribunal to be no warrant in the Act or elsewhere for engaging in the exercise of balancing one public interest against another and concluding that "substantial risk" must be shown before the identity of a confidential source whether actual or hypothetical is entitled to protection.  Section 37(1) makes no reference to public interest or competing public interests as do some other sections of the Act.  ...

If a source of information is properly to be regarded as a confidential source then there is, in my view, no room for the concept of "a substantial risk that the administration of the law will be impaired".  Either it is established that a source is a confidential source or it is not."

Keely J agreed at 426 and Davies J at 427.

The other ground of Mr DeMaria's dissent was dependent upon his finding that the author of the letter was not a confidential source.  He treated the absence of an address as of no significance to that issue.  That conclusion, which differed from that of the majority, was one of fact only.  The finding that the identity of a source of information is confidential will ultimately be one of fact, made in all the circumstances of the case.  Those circumstances will include the nature and content of the communication and the circumstances in which it occurred.

The issue of confidentiality was addressed by the Full Court in Jephcott (above). Forster J (at 425) remarked:

"All information given to the department cannot be "confidential information" or "given in confidence" or come from "a confidential source" so that the mere giving of information without more cannot make the giver a confidential source.  What then is a "confidential source"?  I am content to accept the interpretation in Luzaich v United States (1977) 435F Supp 31 at 35, "a source is confidential if the information was provided under an express or implied pledge of confidentiality".  In the case of an existing document containing information it might be simple enough by reading the document to discover that the information was provided under an express or implied pledge of confidentiality  ...".

and he pointed out that the onus of proving that the source is a confidential source rests upon the agency claiming it. 
Keely J (at 426) accepted that a confidential source of information for the purposes of s37(1)(b) meant a person who had supplied information on the understanding, expressed or implied, that his or her identity will remain confidential. Davies J did not address that particular topic.

McKenzie (above) provides an illustration of factors leading to a conclusion in that case that a source of information was confidential.  It also provides the basis for rejecting the submission to which the appellant adverted that because information was proved to be wrong it was not "information" under s37(1)(b) and so that section could not be used to protect its source. In that case the appellant, who was in receipt of a pension from the Department, sought disclosure of a handwritten letter received by the Department alleging that her husband supported her financially. The Department had investigated that allegation and had found there was no substance to the letter and did not vary her entitlement to the pension she was receiving. The Department, upon her application, had provided her with a typed copy of the letter with the signature of the author deleted. That decision had been affirmed by the AAT. Muirhead J firmly rejected the submission that, because the information provided proved to be incorrect, it was not "information" for the purposes of s37 and so did not fall under the protection of that section.  He remarked (at 649):

"Information prompting administrative inquiry is still properly classified as information in the hands of the Department, be it true or false.  The Department in the exercise of its responsibilities must and does regularly review the eligibility of recipients of public moneys.  Some information may prove of value, some of no value."

His Honour noted that, at common law, cases emphasise that confidentiality traditionally given to informers may operate to the advantage of the untruthful or malicious but nevertheless may require immunity when balanced by the public advantage.  I adopt his reasons.  On the issue of whether the evidence led to the conclusion that the source was confidential, it was treated as relevant that the letter bore no address and that the author's concluding words were "I am just doing my duty to inform you".  Consequently, the AAT's finding that it should be implied that the letter was both written and received under the pledge of confidentiality was upheld.

That conclusion will not be routine.  In Re Liddell and Department of Social Security (1989-1990) 20 ALD 259 Deputy President Forgie had to consider a claim for exemption, inter alia, under s37(1)(b) of the FOI Act in relation to a record of a telephone conversation with an anonymous person who provided information to the Department in relation to the applicant's alleged business affairs. There was nothing on the face of the record of that conversation to indicate the name of the informer and no section or box in the record to indicate if the informer wished the information to be confidential. The practice of the Department was to treat all information supplied to the Department as confidential when relating to alleged breaches of the Act. Before even getting to the question of whether disclosure of the information might reveal its author, the Deputy President adjourned the matter for further evidence because she was not satisfied that the information was given to the Department on a confidential basis; its policy was but one aspect to be taken into account.

The above comments indicate that ultimately the question of whether information was supplied under an expressed or implied pledge or understanding of confidentiality is one of fact.  It is to be decided in all the circumstances of the particular case.  The AAT, in this matter, considered the evidence.  It is not suggested that it erred in identifying the material to which it could properly have regard.  It is not suggested that its conclusion was so unreasonable that no reasonable adjudicator could have reached that view.  It would have been wrong if it had regard to the hardship to and distress of the appellant in deciding that particular question of fact, for the reasons given by the Full Court in Jephcott (above).  Accordingly, in my view the AAT is not shown to have erred in law in its conclusion on that question.

Again, it is a question of fact whether the provision of the letter could reasonably be expected to disclose to the appellant, or to enable him to ascertain, the identity of its author.  There is no submission that the AAT was wrong in law to consider the evidence it did or that it reached a view which no reasonable adjudicator could have reached.  The attack of the appellant was directed to its failure to direct the release of a typed copy of the letter (although his objective is to identify its author), and to its failure to consider the impact upon himself and his wife of its non-disclosure, or the time at which its contents were put to him.

I bear in mind that the relevant test under s37(1)(b) is whether disclosure of the document would, or could reasonably be expected to, disclose or lead to the ascertainment of the source of information where that source is confidential. It is the source which must be confidential, not the information. Confidentiality with respect to information itself, where appropriate, is protected under other sections of the FOI Act including s45. Thus the issue which the AAT had to address was whether the release of the letter in question, even in a typed version, would or could reasonably be expected to disclose, or enable the appellant to ascertain its author. It is not to the point, therefore, that the Department did not put the contents of the letter to the appellant until many months after its receipt.

In Sinclair the Department provided a typed copy of the letter but not a copy in its original form, and excluded the signature and name of the author.  In McKenzie (above) too, a typed copy of the document had been provided to the appellant. The appellant here submits that the same course should have been followed effectively seeking the disclosure of the document in issue which is of course unsigned. He submits that, somehow, the AAT misdirected itself in the law by determining that the document in any form was exempt under s37(1)(b) of the FOI Act.

The AAT concluded that disclosure of the letter could reasonably be expected to enable the appellant to identify the author from the handwriting, from the specific assertions made including the very specific information contained within it, and from the author's spelling.  It reached the same conclusion even if a typed copy of the letter was provided.  That conclusion is not shown to be a consequence of any error of law.  It is not for the Court to substitute a judgment on such findings.

Accordingly, although I am sympathetic to the concerns of the appellant and to the effect which the material, accepted by the Department as false, has had upon him and his wife, in my view no error of law is demonstrated in the processes or conclusion of the AAT.

I accordingly dismiss the appeal.

I certify that this and the preceding        pages are a true copy of the Reasons for Judgment of the Honourable Justice Mansfield.

Associate:

Dated:

Applicant appears in person

Counsel for the Respondent       :    Ms J Nunan
Solicitors for the Respondent        :    Australian Government
  Solicitor

Hearing Date  :    29 November 1996