He and Family Court of Australia - [2000] AATA 1107

DECISION AND REASONS FOR DECISION [2000] AATA 1107

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/265

GENERAL ADMINISTRATIVE DIVISION       )
           Re      XIAO JUAN HE
  Applicant
           And    FAMILY COURT OF AUSTRALIA
  Respondent

DECISION

Tribunal Ms U. Dahl (Member)

Date13 December 2000
PlaceAdelaide

Decision      The decision under review is affirmed.
  (Signed)
  U. DAHL
  (Member)
CATCHWORDS
FREEDOM OF INFORMATION – whether employee's surname should be released to member of the public – adverse effect on management of personnel, or proper and efficient conduct of operations of an agency – public interest – decision affirmed
Re Z and Australian Taxation Office (1984) 6 ALD 673
Re Mann and Australian Tax Office (1985) 3 AAR 261
Re Lander and Australian Taxation Office (1985) 85 ATC 4674
Baird v Victorian Roads (1998) 75 FOI Review 41
Chandra v The Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Freedom of Information Act 1982 ss4, 37, 40, 41, 56

REASONS FOR DECISION

13 December 2000 Ms U. Dahl (Member)

This is an application by Xiao Juan He ("the applicant") for review of the deemed refusal of the Family Court of Australia ("the respondent") to grant access to documents under the Freedom of Information Act 1982 disclosing the surname of "Ms June xxxx".
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) together with exhibits tendered by the parties. The exhibits were comprised of the applicant's statement of facts and contentions (Exhibit A1), the respondent's statement of facts and contentions (Exhibit R1), and a witness statement of Mr Graham Mayger (Exhibit R2). In addition, the Tribunal heard oral evidence from Mr Graham Mayger.
The applicant represented herself at the hearing, and the respondent was represented by Ms Ware, of counsel. Mr Owen was given leave by the Tribunal to attend as counsel for "Ms June xxxx", although he did not make any submissions at the hearing.
Background
On 1 September 1999, the applicant submitted a request under the Freedom of Information Act 1982 ("the FOI Act") for "Ms June xxxx's surname" (T4/9). The basis of the request was the applicant's belief that "Ms June xxxx" incorrectly recorded and/or amended the contents of a subpoena and fraudulently signed the subpoena, resulting in a loss to the applicant. The applicant cited her reasons for the Freedom of Information ("FOI") request as being (T4/9):
"I am intending to sue Ms June xxxx, a orderly section staff member, Adelaide Registry, Family Court for damage! As the requirement of judicial proceeding, I need to find out her surname in order to issue and serve the court documents to her."
On 22 September 1999, an authorised decision-maker refused the applicant access to documents revealing the "full name of the staff member concerned" (T5/11). The decision was based on s37(1)(c), s40(1)(d) and s41(1) of the FOI Act (T5/10). The authorised decision maker concluded that:
"… release of any documents showing June's full name could reasonably be expected to endanger the life or physical safety of any person including June herself. I have also come to the conclusion that release of such documents could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the Adelaide Registry of the Family Court. I have also concluded that release may well involve the unreasonable disclosure of personal information about other persons."
On 19 April 2000, the applicant then requested internal review of the decision of 22 September 1999 (T7/16).
The processing of the internal review application was suspended, as the respondent dealt with a new FOI request made by the applicant on 23 February 2000. While this FOI request is not the subject of these proceedings, it is relevant to note that the request sought any documents which would "identify the full name of the person who signed the subpoena … on the 12th March 1997." (T6/15). The respondent released a document to the applicant on 20 April 2000 that identified Ms Maree Skinner as the person who signed the subpoena, rather than "Ms June xxxx" (T8/9). The respondent also later released to the applicant an affidavit of Ms Maree Skinner affirming that the signature on the subpoena in question was her signature (T12/25).
The applicant was not satisfied with this result, and still requested documents revealing "Ms June xxxx's surname" (T9/21). On 26 June 2000 the respondent contacted "Ms June xxxx", who strenuously objected to the release of her surname to the applicant (Exhibit R1).
On 11 July 2000 the applicant appealed to this Tribunal for review of the respondent's deemed refusal under s56 of the FOI Act to release documents revealing "June xxxx's" surname (T2). This application is based on the applicant's original FOI request lodged on 1 September 1999, for which she had requested internal review on 19 April 2000. The respondent had not progressed with the internal review request, being of the understanding that the applicant was proceeding with the new FOI request (Exhibit R1).
On 17 July 2000 the respondent consulted "Ms June xxxx" for a second time in relation to the applicant's FOI request (T13/28). On 27 July 2000 "Ms June xxxx" wrote to the respondent contending that it would be unreasonable for the respondent to disclose her surname to the applicant (T14 – subject to confidentiality order).
Issues and Legislation
The issue under consideration is whether this Tribunal should grant the applicant access to documents identifying "Ms June xxxx's" surname. Section 11 of the FOI Act provides members of the public access to documents of an agency such as the Family Court and states that:
"Right of Access
11. (1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document;
…"

Relevant to the Tribunal's consideration of the above issue will be whether the applicant's FOI request falls within the exempt document category of s11(1)(a). The Interpretation Section of the FOI Act reveals that "exempt document" means "(a) a document which, by virtue of a provision of Part IV, is an exempt document". Two sections within Part IV of the FOI Act are relevant to the facts of this case and are set out below:

"Documents concerning certain operations of agencies
40. (1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or
…
(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.
Documents affecting personal privacy
41. (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).
…"

The "Interpretation" section describes "personal information" as being:

"… information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion."

Evidence of Mr Graham Mayger

Mr Mayger gave evidence that he has been with the Adelaide Registry of the Family Court of Australia for 22 years, and has been Deputy Registry Manager for the last 12 months. Mr Mayger confirmed that he is not the Deputy Registrar as originally listed on the respondent's hearing certificate, and that his witness statement tendered as Exhibit R2 correctly states his title as Deputy Registry Manager.
Mr Mayger testified that all employees of the Family Court have an understanding that names of officers within the court are not to be given out to members of the public without the express approval and consent of the officer concerned. He gave evidence that this policy is necessary because the Family Court operates in an emotional environment, and there are security issues raised by the giving out of officers' names, particularly as there was a need to keep the personal lives of officers secure. In his witness statement (Exhibit R2), he stated:
"… there is most certainly a fear of many staff members that if they reveal their surnames that that would give people access to their home addresses and other contact details. … "
In cross-examination, the applicant questioned Mr Mayger as to why the Family Court released the full name of Ms Maree Skinner. Mr Mayger gave evidence that Ms Skinner's name was released with her consent, thus the release of her name was consistent with the evidence he had just given. In cross-examination, Mr Mayger conceded that, as yet, no officer of the Family Court had been assaulted by a member of the public.
Mr Mayger gave further evidence that "June" is a court officer responsible for the administration of a courtroom. He further stated that she does not need delegated authority to sign documents on behalf of the Registrar of the Court. There was consequently no need to release her surname in order for her to fulfil her duties to the Court. However, he testified that there are broader national implications for the Family Court if "June's" surname was to be released, which could have a substantial effect on its operations. He raised the example that certain staff members have delegated power to sign documents, and if staff refuse to sign their name for the Deputy Registrar on documents, then logistical problems are created at management level.
Mr Mayger also raised the potential risk of industrial action if the names of staff members were released to litigants of the Family Court without the consent of the staff member concerned. Mr Mayger's witness statement concluded that:
"If the applicant were to be successful in this matter it would have national significance and concern as obviously other staff members would become understandably concerned that their full names could be obtained by persons, thus undermining their personal security and private lives." (Exhibit R2).

Respondent's Submissions

Counsel for the respondent, Ms Ware, submitted that ss40(1)(c), (d) and s41(1) of the FOI Act operated to exempt disclosure of documents identifying the surname of "Ms June xxxx".
Ms Ware made reference to the evidence of Mr Mayger as support for the contention that the exemptions under s40(1)(c) and (d) apply in this case. Particular mention was made of Mr Mayger's evidence concerning the "understanding" of officers of the Family Court that consent of the employee is required before his/her surname is released to the public. Ms Ware also referred to Mr Mayger's evidence on staff security, staff morale, and the fact that "Ms June xxxx" does not have delegated powers thus does not need to disclose her name in order to perform her duties.
In relation to s40(1)(c) and (d) of the FOI Act, Ms Ware also referred the Tribunal to the cases of Re Z and Australian Taxation Office (1984) 6 ALD 673, Re Mann and Australian Tax Office (1985) 3 AAR 261 and Re Lander and Australian Taxation Office (1985) 85 ATC 4674, all of which involved the names of tax officers. One feature of these cases was that the officers concerned did not have delegated powers. Ms Ware noted that these cases decided against the release of the names of the officers to members of the public, because of the danger of misuse of officers' names.
In relation to s40(2) of the FOI Act, which deals with the public interest criteria, Ms Ware submitted that it is not in the public interest to undermine the "understanding" within the Adelaide Registry that names would not be released without express consent, and the public interest would be better served by avoiding unwarranted interference with the functions of the Family Court's Registry and its staff. Ms Ware also referred the Tribunal to T3/7, which sets out the respondent's written submissions in relation to public interest issues.
The second ground of the exemption upon which Ms Ware made submissions on was sub-section 41(1) of the FOI Act, on the basis that disclosure of documents would involve the unreasonable disclosure of personal information. Ms Ware referred the Tribunal to the definition of "personal information" in s4 of the FOI Act, and submitted that the release of June's surname would enable her to be fully identified. Ms Ware acknowledged that the case of Baird v Victorian Roads (1998) 75 FOI Review 41 which held that an officer's name was not within the definition of "personal affairs" was not favourable to the respondent's case. However, she submitted that it could be distinguished from the present case on the basis that it was dealing with the Victorian FOI Act which refers to "personal affairs" as opposed to "personal information" in the Commonwealth Act. Ms Ware said that as the Commonwealth definition of "personal information" is information that could identify a person, then release of June's surname would fall in that category.
In relation to what constitutes "unreasonable disclosure", the respondent referred the Tribunal to a number of cases, including Chandra v The Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257. Chandra states that relevant factors in the consideration of what is unreasonable information is the nature of the information, the circumstances in which it is obtained, the wishes of the person involved regarding the disclosure and the current relevance of the information. In particular, Ms Ware pointed out that "Ms June xxxx" had made her wishes very clear about not wanting her surname disclosed to the applicant.
In closing, Ms Ware submitted that clearly, on balance, the considerations weigh heavily against disclosure in this case.
Applicant's submissions
In relation to s40(1)(c) and (d), the applicant put to the Tribunal that the respondent's submission concerning management and security issues had no substance to it. The applicant pointed out that Family Court staff have never been assaulted in the 25 years of the Court's operation, and the presence of the Federal Police probably make the Family Court Registry safer than other registries. She also submitted that there was no evidence suggesting that the release of Ms June xxxx's name would lead to industrial action.
The applicant submitted that it is her right to be able to sue a person under Australian law, and that it is not a misuse of the FOI Act to grant her access to documents identifying 'Ms June xxxx's" surname.
Tribunal's findings
The Tribunal indicates that it has considered all of the evidence before it, including the oral submissions of the applicant, respondent and Mr Mayger.
The Tribunal notes for the record that the applicant contended that she twice sought internal review of the decision dated 22 September 1999. She denied any agreement with the respondent delaying the processing of her internal review application pending the resolution of her new FOI request lodged on 23 February 2000. However, for the purposes of this Tribunal's power to review the decision before it, there is a deemed refusal of the respondent to review the decision under s56 of the FOI Act, and that gives this Tribunal jurisdiction to review the decision before it. Accordingly, any misunderstanding which may have occurred between the applicant and respondent in relation to the internal review process is irrelevant for the purposes of this review.
In relation to the evidence of Mr Mayger, the Tribunal has also noted the applicant's concerns about Mr Mayger's role within the Adelaide Registry of the Family Court, and the relevance of his evidence. This concern arose as the respondent mistakenly gave his title as "Deputy Registrar" on the hearing certificate when it should have been "Deputy Registry Manager." While the applicant was correct in pointing out this mistake, the respondent rectified it before the hearing in a letter addressed to the Tribunal dated 24 October 2000. The applicant also had access to Mr Mayger's signed witness statement before the hearing, which stated his correct title. The Tribunal finds that Mr Mayger was accordingly in a position to make comment on the issues relevant to this hearing. The Tribunal accepts Mr Mayger's evidence as being a truthful account of Family Court policy, operational requirements and staff concerns.
The Tribunal, in the consideration of all of the issues before it, has recognised that if it were to grant the applicant access to documents identifying "Ms June xxxx's" surname, then there are both personal consequences for "Ms June xxxx" and broader national implications for the Family Court of Australia.
In determining whether the documents requested by the applicant fall within the category of "exempt document", the Tribunal has had regard to sections 40(1)(c) and (d) of the FOI Act and all of the case law referred to it by the respondent.
In particular the Tribunal has directed its attention to the case of Re Z where the Tribunal states at page 677:
"… There is a strong possibility that the revelation of names of individuals who have dealt even in a routine way with any taxpayers' affairs would undermine public confidence in the strict confidentiality which quite properly surrounds the operations of the agency. …"

Although the matter of Re Z dealt with officers from the Australian Taxation Office, to the Tribunal's mind similar concerns must exist in regard to the Family Court with reference to the need for strict confidentiality.

The Tribunal considers that both sections 40(1)(c) and (d) apply in this case to exempt from disclosure any documents which would identify "Ms June xxxx's" surname. In the matter of Re Mann the Tribunal, in looking at ss40(1)(c), (d) and (e) of the FOI Act, addressed the issue of the release of the names of officers at lower levels at page 271:
"It would be one thing for the names of officers holding delegations from the Commissioner of Taxation to be released, but at lower levels we see a distinct danger of mischievous use of officers' names, with no countervailing advantage to the public. Why would you not suggest for a moment the presence of any such danger of misuse in the present case, the principle is a general one."

The Tribunal is satisfied that this general principle must be applied in the present matter.

In the matter of Re Lander, the Tribunal decided that officers of the Australian Taxation Office, other than officers holding delegations from the Commissioner of Taxation be excepted from release of their names.
These three cases Re Z, Re Mann and Re Lander all relate to ss40(1)(c), (d) and (e) and in all these cases the Tribunal decided that the names of officers who do not have delegated authority should not be released under this section.
In the present matter, June xxxx does not have delegated authority within the Family Court and, to the Tribunal's mind, the three cases cited are particularly helpful in deciding the matter before it.
In coming to this conclusion, the Tribunal finds that there exists within the Adelaide Registry of the Family Court an "understanding" that the names of officers will not be released without the express consent of the officer concerned. This "understanding" is in place because of the potentially volatile nature of cases within the Family Court. To release "Ms June xxxx's" name without the express consent of Ms June xxxx would undermine this "understanding" which is in place to protect the personal lives of the Family Court registry staff. Both "Ms June xxxx" and Family Court Registry staff nationally may have legitimate concerns that their personal details such as their addresses would be accessible by applicants.

The consequences of releasing a document identifying the surname of "Ms June xxxx" was considered by the respondent's witness, Mr Mayger, who mooted the possibilities of industrial action, and problems with officers with delegated powers refusing to sign documents. While the Tribunal cannot comment on what the future consequences would be if "Ms June xxxx's" surname was released, the Tribunal accepts that Mr Mayger is in the best position to perceive and anticipate the problems that will arise. The Tribunal accordingly finds that the release of a document identifying "Ms June xxxx's" surname could have a substantial adverse effect on both the management of personnel, and the proper and efficient conduct of the operations of an agency per ss40(1)(c) and (d) of the FOI Act.
The Tribunal has considered whether the public interest per s40(2) of the FOI Act in releasing documents identifying Ms June xxxx's surname overrides the exemption in s40(1). The Tribunal considers that the public interest lies in ensuring that the Family Court Registry provides a fast and efficient service; to undermine the "understanding" by releasing Ms June xxxx's surname to the applicant would be counterproductive to this public interest.
Given that the Tribunal's finding is that documents identifying "Ms June xxxx's" surname are exempt from release to the applicant under s40(1)(c) and (d) of the FOI Act, the Tribunal does not need to consider the submissions made under s41 of the FOI Act.
For the reasons given above, the decision under review is affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Ms U. Dahl (Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing   30 October 2000
Date of Decision  13 December 2000
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Ms N. Ware
Solicitor for the Respondent    AGS