Horne and Indigenous Business Australia

[2008] AATA 316

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 316

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/899

GENERAL ADMINISTRATIVE DIVISION		)
Re		PHILLIP VERNON HORNE

Applicant

And INDIGENOUS BUSINESS AUSTRALIA

Respondent

DECISION

Tribunal Dr K S Levy, RFD, Senior Member

Date17 April 2008

PlaceBrisbane

Decision

1.        The decision under review is affirmed.

2. The confidentiality orders under made under s 64(1) of the Freedom of Information Act 1982 and s 35(2)(c) of the Administrative Appeals Tribunal Act 1975 are to remain in place.

……………[Sgd]……………………….
  SENIOR MEMBER

CATCHWORDS

FREEDOM OF INFORMATION – Exempt Documents – whether four documents are exempt from release – personal information of third parties contained in documents – release of documents would be unreasonable – decision under review affirmed – confidentiality orders are to remain in place.

Freedom of Information Act 1982

Administrative Appeals Tribunal Act 1975

Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429

Re Collie and Deputy Commissioner of Taxation (1997) 45 ALD 556

Re Chandra v Minister for Immigration and Ethic Affairs (1984) 6 ALN N257

Re Anderson and the Australian Federal Police [1986] 11 ALD 355

REASONS FOR DECISION

17 April 2008 Dr K S Levy, Senior Member        

INTRODUCTION

1.      The applicant, Phillip V Horne, by application dated 7 December 2007, has sought access to documents now held by Indigenous Business Australia.  The application relates to former commercial dealings of the applicant with the respondent (and its predecessor organisation ATSIC).  A previous application to gain access to certain documents under the Freedom of Information Act 1982 (the Act) was rejected on initial application and also, on internal review under the Act.

2.      The applicant states that he seeks access to certain documents with a view to commencing legal proceedings. The purpose of any request does not affect any right to access under the Act (s 11 of the Act) but is to be subject to other provisions of the Act.  

QUESTION FOR THE TRIBUNAL

3.      The question for the Tribunal is whether the four documents previously rejected in whole or in part by the respondent, are exempt from release under the Act.  The respondent’s position asserts that s 41 of the Act provides a legal basis for the rejection of Mr Horne’s claim as their release would be unreasonable.  This claim is based on the reasoning that the personal information of third parties is involved. 

THE DOCUMENTS IN DISPUTE

4.      There are four documents which are the subject of this application:

AUTHOR	DATE	DESCRIPTION
Document 1	Officer of ATSIC	18 September 2001	File note regarding a conversation with third party
Document 2	Officer of ATSIC	8 October 2001	File note by officer of ATSIC documenting a phone call with third party
Document 3	Officer of ATSIC	10 October 2001	File note by officer of ATSIC documenting a phone call with third party
Document 4	R E Murphy, Chartered Accountant	29 November 2001	Report by R E Murphy to ATSIC regarding role as receiver and manager of Havencove P/L trading as Clancy’s Overflow Hotel

5.      In respect of Documents 1, 2 and 3, the whole of those documents is claimed to be exempt.  In respect of document number 4, a part only of that document is claimed as being exempt.

6.      In relation to Document 4, the Tribunal was informed that Document has already been released to the applicant, with the exception of two paragraphs on page 3 and one paragraph on page 4.  The Tribunal has examined all of the documents in question.  It was apparent that the documents (or parts of documents) claimed to be exempt, relate to previous business dealings of Mr Horne and were statements obtained in the course of official inquiries by either a government organisation (for Documents 1, 2 and 3) or legitimate or professional enquiries by the receiver and manager who was appointed to a company in liquidation, and which related to the applicant’s former business (for Document 4). 

7.      Having examined the documents, I was of the view that the respondent’s claims were, on their face, substantial claims.  Until such time as the legal merits of those claims and those of Mr Horne could be determined, I made certain orders for the production of those documents to the Tribunal and confidentiality orders over them, so that they could not be released to any person other than a Member or officer of the Tribunal requiring official access to them.

EVIDENCE AND SUBMISSIONS

8. This application was dealt with on the papers under s34J of the Administrative Appeals Tribunal Act 1975. Documentary material was provided in the form of the T documents and other correspondence.  I sought and was provided with clarification of some of the material submitted by the Respondent.

9.      Mr Horne’s application and submissions were to the effect that he sought access to documents as they may reveal a basis to sue certain people who once worked at his hotel.  He acknowledges that most of those people no longer work for the organisations which they did at the time periods relating to the documents involved in this application and he submits that because of this, there should be no difficulty in him accessing the documents sought.

10.     The respondent’s submission in resisting the application are based on statutory grounds provided for in the Act and which are:

(a)      that the information sought contains “personal information” of third parties;

(b)      that release of that “personal information” would be “unreasonable”;

(c)       that the “personal information” of the applicant cannot be disclosed without also revealing the “personal information” of third parties and

(d)      that the third parties either object to the release of the information; or they cannot be found and would be likely to object to its release.

CONSIDERATION

11.     I have taken into account all of the documentary evidence provided, and the statutory and case law as far as it is relevant to determine the issues before the Tribunal.  The Tribunal has been conscious in making a determination, that the issues are of sensitivity to the applicant, but also, that they would be likely to be sensitive to third parties who have not been able to be located.  It is this matter which predominately provides a ground which could, or would be likely to be, objectionable to those third parties, and therefore impinges upon the weight of evidence when considering the provisions of the Act.

12.     The Act was designed to give access to the public as far as possible, but this general right and the objective of the Act is to be subject to certain exemptions “…..for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected…..”[1]

[1] Section 3 of the Act.

13.     The relevant statutory provisions involved are:

·     The documents in dispute are clearly “documents” for the purposes of the Act (s 4(1)).

·     The main ground claimed for exemption is that contained in s 41 of the Act as follows:

“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). “ (my underlining)

14.     Having considered the material, the Tribunal makes the following findings of fact:

(i)The documents in the application were created by a government agency

(ii)The documents contained personal information of Mr Horne

(iii)The documents also contain personal information of third persons

(iv)All relevant information was collected in respect of official and important matters relating to the liquidity of Mr Horne’s business and default upon a loan advanced by a government agency

(v)There was no evidence of any unlawful gathering of information

(vi)The persons involved in relation to Documents 1, 2 and 3 (other than the applicant) cannot be found and would be likely to object to the release of the material

(vii)The liquidator has objected to the release of the part of the material withheld from Document 4

Would the release of the information sought be “unreasonable”?

15.     The primary statutory provision is s 41(1) which provides that if release of the information would be an unreasonable disclosure of personal information about any person, then that information is exempt.  The term “personal information” is defined in s 4 as meaning

“….information or an opinion (including information forming part of a database), whether true or not, or 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.”

16.     The information in the documents sought is clearly sensitive information.  In Colakovski v Australian Telecommunications Corporation[2], the court referred to the extent of “personal affairs” as it was then termed in the Act.  It said

“…a document may contain statements about a person’s private life in the sense of 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 the persons “personal affairs”.  Such a document would therefore prima-facie answer the description of one which relates to the “personal affairs” of a person within in s41(1)” [3]

[2] (1991) 29 FCR 429; [1991] FCA 512

[3] Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 per Lockhart J at 436.

17.     His Honour qualified that principle however by stating that it may be necessary to invoke exemptions where there are public interests considerations.  Specifically, he said that

“… it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents.  The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided the other conditions mentioned in s 41 and 43 are satisfied.  An examination of other provisions in Part IV of the Act concerning exempt documents confirms this approach”[4].

[4] Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 per Lockhart J at 438.

18.     It should be noted that while the principle of those authorities remain, the term “personal affairs” was replaced shortly afterwards in the 1991 amendment to the Act to refer to “personal information”.  It seems that this was intended as the primary focus of that section of the Act is to imply that the Act is concerned with government documents which may contain within them, references to individuals or “personal information”.  This is to differentiate the former term which seemed to suggest an objective or focus upon an individual rather than government documents.

19.     But resolution of the matter was submitted by the Australian Government Solicitor, on behalf of the respondent, as requiring a consideration of reciprocal “personal information”.  Specifically, it was submitted that while there is “personal information” of the applicant, there is also “personal information” of the third parties recorded in those documents. Those third parties provided relevant information to a government authority in the course of official inquiries.  The submissions on behalf of the respondent referred to a previous authority where that term is taken to mean that the content of the record is also “about” the third party.  This can be taken to mean “in connection with; touching; concerning; on the subject of; in relation to”[5].

[5] Re Collie and Deputy Commissioner of Taxation (1997) 45 ALD 556 per DP Forgie at [54]

20.     That submission has considerable force, as without recognition of that argument, the balancing of rights would be difficult and it might in the present circumstances render the term “unreasonable”, nugatory.  Such an outcome would be absurd as Parliament undoubtedly intended the term to have both meaning and application.

21.     But what is the meaning of “unreasonable” in practical terms?  That is to be assessed by reference to whether the public interest objective of the legislation would be properly upheld.  It is concerned with being held securely on behalf of the public, taking account of the rights of all members of the public.  In Colakovski (supra) it was said “…I do not think it is necessary in order to make out the s 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 to excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable”[6]. 

[6] (1991) 29 FCR 429 per Heerey J

22.     That statement of principle requires other factors to be considered in determining whether disclosure of information requested would be “unreasonable” include:

“........

·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

·Whether the information has any current relevance

·Whether it would enable an unreasonable invasion of privacy of third parties”.[7]

[7] Re Chandra v Minister for Immigration and Ethic Affairs  (1984) 6 ALN N257, per DP Hall

23.     The respondent further submitted that when the information requested contains information “about” the applicant and third parties, then it will depend whether the information about the third parties can be deleted without impairing the information released.  If so, it should be deleted and release of the remaining information would not then be unreasonable (re Anderson and the Australian Federal Police 1986 11 ALD 365 at paragraph 50).

24.     However, if that information cannot be deleted while still retaining the logical sense of the original document; or if the name deleted would be obvious to the applicant and perhaps either some violence, harassment or other unlawful act could be likely to result, then in my view, it would be “unreasonable” to release the information.  Similarly, if a third person named in the document either objects or be likely to object to its release, then depending on the circumstances and or any risks which may be involved, then release may be “unreasonable”[8].

[8] Re Anderson and the Australian Federal Police [1986] 11 ALD 355 at [50].

25.     Applying these considerations to the documents under review, I find in relation to Documents 1, 2 and 3 that the documents contain “personal information” of the applicant and would on that basis not be unreasonable to release.  Where there is also information and reference to third parties, deletion of names alone should not diminish the information value in terms of quality or completeness.  However, where there is other content information which is also “personal information” of third parties and mere deletion of a name of a third party would still make the person’s identity intuitively obvious to the applicant, or where the remaining information would be diminished in value, then disclosure of the information may be “unreasonable”.    Such would be the result here.  In any event, the persons concerned with these documents have not been able to be contacted but would be very likely to object to the release of those documents and that is an additional basis for finding that the release of the documents in question would be unreasonable.

26.     I note the circumstance in which the information was obtained was not only sensitive then but clearly remains so.  Also, it is information held on behalf of the public and was provided in the public interest.  Release of such information without the consent of the persons supplying that information to government officers or liquidators carrying out important professional roles, would be likely to undermine the confidence of those assisting authorities.  The veracity of any such statement would be for those officials to decide on the value of those assertions objectively, but it is apparent that without the assistance of such members of the public, the protection of public interest and the upholding of laws might otherwise be undermined.  Such information has demonstrable relevance to the affairs of government. While that is of relevance to the present grounds of exemption sought, it is apparent that there are other specific grounds which could show release of the documents sought would be unreasonable.

27.     In relation to Documents 1, 2 and 3 therefore, I find those documents are exempt under s 41 of the Act as release of those documents would be “unreasonable”.

28.     In relation to Document 4, the applicant has already had the document released to him, except for three paragraphs on pages 3 and 4 of that document.  Those paragraphs relate to the official inquiries of the receiver and manager, about his professional judgement, and his assessment of his legal obligations.  The release of that information has been objected to by Mr Murphy, Chartered Accountant.  For the reasons expressed above in exempting Documents 1, 2 and 3, I also find that the three paragraphs, for which exemption is claimed for Document 4, are also exempt.  To release that information contrary to the objection of the author who was the appointed receiver/manager would be “unreasonable”.

DECISION

29.     I therefore find that:

a.The decision under review is affirmed.

b.The confidentiality orders under made under s 64(1) of the Freedom of Information Act 1982 and s 35(2)(c) of the Administrative Appeals Tribunal Act 1975 are to remain in place.

30.     The relevant documents have been returned to the respondent.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy RFD Senior Member.

Signed:         .....................................................................................
  E. Young, Research Associate

Date of Hearing  19 March 2008  
Date of Decision   17 April 2008
The applicant was self-represented.
Solicitor for the Respondent      Australian Government Solicitor