JACOB SPLANN and CENTRELINK

[2009] AATA 320

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 320

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4255

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JACOB SPLANN

Applicant

And CENTRELINK

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date7 May 2009

PlaceHobart

Decision

1. That until further order pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975, the transcript of the parts of the hearing of this matter which took place in private and the exhibits tendered on 16 March 2009, identified as "confidential documents", not be disclosed to anyone other than members of the Tribunal and members of the staff of the Tribunal who need to have reference to the documents in the performance of their duties.

2.        The Tribunal varies the decision under review as follows:

i)         Document number 1 identified in the Schedule of Documents   is an exempt document under the FOI Act pursuant to sections 37(2)(b), 40(1)(a), 40(1)(d).

ii) That a copy of document number 2 identified in the Schedule of Documents be released to the applicant in the amended form as tendered at the hearing with deletions pursuant to section 22 of the FOI Act such that it not be an exempt document.

iii) That a copy of document number 3 identified in the Schedule of Documents be released to the applicant in the amended form tendered at the hearing with deletions pursuant to section 22 of the FOI Act such that it not be an exempt document.

iv) That a copy of document number 4 identified in the Schedule of Documents be released to the applicant in the amended form tendered at the hearing with deletions pursuant to section 22 of the FOI Act such that it not be an exempt document.

v) That a copy of document number 5 identified in the Schedule of Documents be released to the applicant in the amended form tendered at the hearing with deletions pursuant to section 22 of the FOI Act such that it not be an exempt document.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION - request for access - exempt documents - personal privacy of third party - potential prejudice to the effectiveness of lawful methods of detection and investigation - adverse effect on the conduct of an agency's operations - public interest - decision under review varied

Freedom of Information Act 1982, ss 11, 15, 22(1)(b), 37(2)(b), 40(1), 41(1)

Administrative Appeals Tribunal Act 1975, s 35

Lobo and SDEST [2007] AATA 1891

Bayliss and Health and Family Services [1997] AATA 360

Re Thies and Department of Aviation (1986) 9 ALD 454

ASIC & Australian Federal Police (1986) 11 ALN 184

Re The News Corporation and National Companies Securities Commission (1984) 5 FCR 88

Re Mann and ATO (1985) 7 ALD 698

REASONS FOR DECISION

7 May 2009   Ms A F Cunningham (Senior Member)   

1.      The applicant, Jacob Splann, had sought access under the Freedom of Information Act 1982 (the FOI Act) to documentation contained in his Centrelink file.  This is an application for review of Centrelink's decision.

Background

2.      Mr Splann had successfully appealed a decision of Centrelink to the Social Security Appeals Tribunal (SSAT) which set aside Centrelink's decision to cancel his Centrelink benefit on the basis that Mr Splann was in a marriage-like relationship. 

3.      This application for review was initiated on behalf of Jacob Splann by William Yabsley, who has been authorised to act for Mr Splann with respect to these proceedings and his on-going dispute with Centrelink. 

4.      On behalf of Mr Splann, Mr Yabsley requested the provision of all documentation that related to Centrelink's finding of a marriage-like relationship.  Mr Yabsley stated that unless the material categorically proves a marital relationship between Mr Splann and Ms Vanessa Adams, he would be advising Mr Splann to proceed with civil and criminal legal action against Centrelink and the two officers involved. 

5.      Mr Yabsley's request for access was in the following terms:

"I am hereby filing this application under the provisions of the FOI Act for all the relevant and non-relevant material evidence Centrelink states it has in relation to its decision/opinion stated in Para one of a letter dated 17 April signed by Mr R Cowen. That is all the information provided by Mr Splann and the third party parties identified and any and all other sources related to this matter".

6. The request for access was made pursuant to section 15 of the FOI Act.

7. A decision was made by a Freedom of Information officer on 26 May 2008 granting access in full to 154 documents, access in part to six documents and refusing access to 148 documents. The decision to refuse access to some documents was made pursuant to section 41(1) of the FOI Act on the basis that the documents contained personal information relating to another person who had not consented to release. 

8.      Mr Splann sought a review of this decision and on 11 September 2008, applied to the AAT for a review of the reviewable decision.

9. The third party, namely Vanessa Adams, subsequently provided her written consent for access to all documents or evidence regarding the dispute between Mr Splann and Centrelink which related to her. The Review Officer's decision was later amended authorising the release to Mr Splann of documents to which access had previously been refused on the basis that they affected the personal privacy of a third party, providing access to three documents with parts deleted and refusing access to the remaining three documents on the basis that they were exempt under sections 40(1) and 41(1) of the FOI Act.

10.     It is the FOI Review Officer's decision of 21 November 2008 that is the subject of this application for review.  In summary it was decided:

·To provide access in full to 302 documents contained in Mr Splann's investigation file and to the on-line document dated 17 April 2008;

·Provide access to three documents with some parts deleted pursuant to section 22 of the FOI Act being exempt from disclosure pursuant to section 41(1) of the FOI Act

·Refuse access to the remaining three documents pursuant to sub-sections 40(1) and 41(1) of the FOI Act. 

Copies of the documents not previously released were enclosed with the decision.  A schedule of exempt documents was attached to the decision and is as follows:

AAT Appeal 2008/4255	Schedule of Documents
Document No.	Date of document	Created	Description	Grounds for exemption	Part only	Copy of another document
1	None	Renata Cowens	Case complexity descriptor –  two pages - fol. 7 & 8	Section 37(2)(b) & 40(1)(a) & (d) –operations of agency, prejudice audits and law enforcement.	No	No
2	21 August 2007	Renata Cowens	Extended search list – one page - fol. 27	Section 41(1) – third party information.	Yes – lines 1 to 8	No
3	21 August 2007	Renata Cowens	Historical FA person details – one page -fol. 29	Section 41(1) – third party information	No	No
4	None	Not disclosed	Current land title search – one page – fol. 32	Section 41(1) – third party information	Yes – lines 1 & 2 and annotation	No
5	18 December 2007	Renata Cowens	Facsimile from Aurora Energy – one page - fol. 187	Section 41(1) – third party information	Yes – lines 1, 3 & 4	No

The Hearing

11.     Mr Splann did not attend and took no part in the hearing before the AAT.  He was represented by William Yabsley who attended and made oral and written submissions.

12.     The T Documents were tendered in evidence together with an affidavit from Peter Cotterill, the National Manager, Business Integrity Performance Branch, Business Integrity Division of Centrelink.  The Tribunal heard oral evidence from Sheree Cordie, Manager of the Compliance and Fraud Section of Centrelink.  Peter Cotterill is Ms Cordie's manager. 

13. An order was made pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) that the hearing with respect to Ms Cordie's evidence take place in private due to the confidential nature of the evidence. Further, it was ordered that the publication and/or disclosure of the oral evidence given and the documents received in evidence be restricted.

Legislation

14.     The Object of the FOI Act as stated in section 3 is so far as possible, to give members of the public the right of access to official documents of the Government of the Commonwealth and its agencies. This right is qualified under section 11 of the FOI Act to other than exempt documents.  Exempt documents fall for consideration under Part IV of the Act. 

15.     The respondent relies on the following sections of the FOI Act in defence of its decision to refuse access and/or provide restricted access to documents which are the subject of the applicant's request.

"37  Documents affecting enforcement of law and protection of public safety

...

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

...

(b)       disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or

40  Documents concerning certain operations of agencies

(1)       Subject to subsection (2), a document is an exempt document if its          disclosure under this Act would, or could reasonably be expected to:

(a)       prejudice the effectiveness of procedures or methods for the conduct        of tests, examinations or audits 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.

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)".

Exempt Documents

16.     Under section 22(1)(b) of the FOI Act, a copy of a requested document with such deletions to make the document not an exempt document under the FOI Act can be provided by the agency.  

17.     It was submitted by Mr Sparkes on behalf of the respondent that documents numbered 2, 3, 4 and 5 could be released following appropriate deletions undertaken pursuant to section 22(1)(b). Mr Sparkes advised that document number 5 had previously been released to the applicant in the amended form. Copies of the subject documents with the deletion of personal information regarding third parties other than Vanessa Adams, who had given her consent to release of documents which related to her, were tendered in evidence. Copies of the original documents without the deletions were also tendered. The documents were tendered during that part of the hearing that was subject to the confidentiality order made under section 35 of the AAT Act.

18.     Mr Yabsley's submissions with respect to the release of documents numbered 2, 3, 4 and 5, were based on the belief that these documents only contain  personal information relating to Vanessa Adams, who had given her consent to their release.  Mr Yabsley contended that the documents would not otherwise be relevant to Mr Splann's dispute to Centrelink.  Mr Yabsley maintained that they are required with respect to Mr Splann's potential civil action against Centrelink. 

19.     Following my view of these documents I informed Mr Yabsley that they did not only contain information relating to Vanessa Adams and/or Jacob Splann but other persons and could be released with the names of the other parties deleted.  Despite his earlier submissions that there was an overriding public interest element supporting the request for access, Mr Yabsley conceded in his final submissions that a public interest element may not be relevant with respect to documentation involving third party information. 

20.     The Tribunal is satisfied that tendered documents 2, 3, 4 and 5 all contain personal information about persons, other than Vanessa Adams.  I consider that it would not be reasonable to disclose this information, which could indicate to not only Mr Splann and Mr Yabsley, but potentially to other members of the public that the named persons have applied for or are recipients of Centrelink benefits.  It is  inappropriate that personal information relating to third parties be accessible to the applicant.  I am informed that the reason why the documents are currently contained on Mr Splann's file is that they include the name of Vanessa Adams.  They also however contain the names and personal details of other persons not associated with Mr Splann's dispute with Centrelink. 

21.     For these reasons I consider that documents identified in the Schedule of Documents numbered 1, 2, 3, 4 and 5 should be released with all references to the personal information of any persons other than the applicant, Jacob Splann or Vanessa Adams deleted.

Case Complexity Descriptor

22. The respondent relies on the provisions of sections 37(2)(b) and 40(1)(a) and (d) which have been set out above.

23.     It was the evidence of Peter Cotterill who manages the design and implementation of Business Integrity processes and tools that:

"disclosure of the case complexity descriptor would reasonably be expected to prejudice the effectiveness of methods and procedures used by Centrelink to prevent, detect, investigate and deal with matters arising out of breaches of the social security law".  

24.     In his proof of evidence Mr Cotterill stated that the case complexity descriptor is an internal working tool used to analyse a particular case and assess the extent to which resources would be devoted to the case, the type and extent of investigations to be undertaken, the seniority of staff to be allocated and the sensitivities of the case.  He maintained that disclosure of the case complexity descriptor:

"... would allow a person to deduce the type of investigatory techniques and methods, the extent that those techniques and methods that might be employed, if any, and those likely to be employed in the particular circumstances of a case, thus enabling them to respond accordingly".

Further, that a person would thereby obtain:

"... a fuller picture of the investigatory techniques and methods employed by Centrelink  to prevent, detect, investigate and deal with matters arising out of breaches of the Social Security Law, and therefore enable actions that could defeat their effectiveness and utility".

25. During the course of the hearing I considered that I needed further evidence from the respondent to support Mr Cotterill's contentions. In particular, clarification of the details of the subject Case Complexity Descriptor, a copy of which was tendered during that part of the hearing that was subject to the section 35 confidentiality order.

26. Sheree Cordie gave oral evidence by telephone which evidence was subject to the section 35 confidentiality order. Ms Cordie managed the development of the "tool" known as the Case Complexity Descriptor and was therefore able to give a detailed description and explanation of its contents.

27. Under section 40(1)(a) a document is an exempt document if it could reasonably be expected to prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency.

28.     "Agency" is defined in section 4 as "a department, a prescribed authority or an eligible case manager".  Centrelink was created by the Commonwealth Service Delivery Agency 1997 (CSDA Act).   Section 6 creates the CSD Agency and provides that it may also be known as Centrelink. 

29.     The term "audit" is not defined in the FOI Act but is defined by the Macquarie Concise Dictionary as "to officially examine and verify accounts and records".  The respondent contends that Centrelink examines the accuracy and integrity of a customer's records when payments are being examined for correctness.

30.     The Tribunal considered the requirement that disclosure would or could reasonably be expected to prejudice audits of the agency in Lobo and SDEST [2007] AATA 1891 and said:

"A reasonable expectation of prejudice is to be decided in the circumstances of each case. In Cockcroft the words could reasonably be expected to prejudice were discussed. At 190 Bowen and Beaumont JJ stated:

...they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, [to expect the particular conclusion to follow].

32.  The word prejudice in s 40(1)(a) and s 37(2)(b) does not impose quite as high or strict a standard as substantially adversely effect (Re James and Australian National University (1984) 6 ALD 687).

31. I am satisfied that disclosure of the Case Complexity Descriptor could reasonably be expected to disclose Centrelink's processes for detecting, investigating or dealing with prospective breaches of the law. I accept the evidence of the witnesses for the respondent that disclosure of this document to Mr Splann, which is potentially "disclosure to the public at large" would reveal the investigative issues prioritised by Centrelink and potentially prejudice the effectiveness of their methods or procedures. Whilst I am not able to provide detailed reasons for my conclusions because of the section 35 confidentiality order, I am satisfied that disclosure of this document would provide useful information to customers and potentially the public at large, as to how they may thwart Centrelink's investigative processes.

32.     It was submitted by Mr Sparkes that whilst the general public may already be aware of some of the investigative techniques, it is the form in which the issues are brought together in this document that could disclose information which would enable people to modify their behaviour and lessen the prospect of detention.

33. Having so found, I am satisfied that the subject Case Complexity Descriptor document falls within the provisions of section 37(2)(b) to be classified as an exempt document.

34. For the purposes of section 40(1)(a) I am satisfied that Centrelink constitutes an "agency" and that it undertakes "audits". Consistent with my findings in paragraph ....... above, for the same reasons, I am satisfied that the subject Case Complexity Descriptor satisfies the provisions of section 40(1)(a).

35. It is further contended that release of the document satisfies the provisions of section 40(1)(d) in that "it would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency". The term "substantial adverse effect" in this context has been considered by the Tribunal on a number of occasions. In Lobo and SDEST the Tribunal said:

"In Re Thies and Department of Aviation (1986) 9 ALD 454 at 463 the Tribunal held that a substantial adverse effect in s 40(1)(d)

...connotes an adverse effect which is sufficiently serious or significant to cause concern to a properly informed reasonable person.

In Ascic v Australian Federal Police (1986) 11 ALN N184 Muirhead J stated that substantial adverse effect includes loss or damage that is in the circumstances, real or of substance and not insubstantial or nominal. In applying these principles the Tribunal finds that disclosure of the material would have a substantial adverse effect on the proper and efficient conduct of DEST’s operations and is exempt from disclosure (s 40(1)(d))"

36.     In Bayliss and Health and Family Services [1997] AATA 360, Deputy President Forgie said at paragraph 47:

"What is required by the exemption in paragraph 40(1)(d) is made out is an adverse effect that is real or of substance and not that which is insubstantial or nominal.  That is consistent with the judgements of Federal Court in Ascic and in Tillmans Butcheries by both of which I am bound".

37.     It was submitted by Mr Sparkes that the Case Complexity Descriptor is part of a set of investigative procedures and methods determining a person's entitlement to social security and family assistance payments.  The investigations can be criminal and administrative in nature.  These procedures and methods inform decisions regarding the conduct of investigations into suspected overpayments of social security benefits.  This is a critical function of Centrelink and results in substantial savings and debt recovery as well as criminal prosecution.  It is contended that release of this document could have a substantial adverse effect, that is real or of substance on the conduct of the operations of Centrelink. 

38.     I have accepted that disclosure of this document could reasonably be expected to prejudice of the effectiveness of Centrelink's procedures and investigative methods for preventing and detecting Centrelink overpayments and/or fraud.  The question remains as to whether release would result in a substantial adverse effect as contemplated by section 40(1)(d). As the Tribunal held in Re Thies and Department of Aviation (1986) 9 ALD 454 at 463, a substantial adverse effect:

"... connotes an adverse effect which is sufficiently serious or significant to cause concern to a properly informed reasonable person".

In ASIC & Australian Federal Police (1986) 11 ALN 184, Muirhead J stated that substantial adverse effect includes loss or damage that is in the circumstances, real or of substance and not insubstantial or nominal. 

39.     In the Full Court decision Re The News Corporation and National Companies Securities Commission (1984) 5 FCR 88, Woodward J said at pages 101-102:

"I think that the words "would" or "could reasonably be expected to ... prejudice" mean more than "would or might prejudice".  A reasonable expectation of an event requires more than the possibility, risk or chance of the event occurring.  On the other hand, if the legislature had required a probability of prejudice it could easily have said so.  In my view it is reasonable to expect an event to occur if there is about an even chance of its happening, without attempting to suggest words alternative to those chosen by the draftsmen, it is in that general sense that the phrase should be read...

The AAT held that it was sufficient to show prejudice to the conduct, in the sense of the carrying on, of an investigation; it was not necessary to show that the outcome of the investigation would be prejudiced.  On this basis it found that the conduct if the investigation would be prejudiced if the investigator were deprived of one of his techniques - in effect the putting of questions to persons who are not thoroughly prepared for them ..."

40.     I am satisfied on the evidence before me that release of the subject document would pose more than a mere risk or possibility of a substantial adverse effect because it is likely that if persons who are the subject of investigations became  aware of the contents of this document, they would be forewarned about the investigative processes, the issues prioritised by Centrelink and thereby able to thwart the effectiveness of the investigative operation.  I accordingly accept that it is reasonable to expect that the release of the Case Complexity Descriptor and the material it contains, has a real potential to adversely affect Centrelink's processes of investigating suspected overpayments and its debt recovery and savings processes. 

Public Interest

41. Sub-section 40(2) affords an overriding consideration in that the exemption provision of sub-section 40(1) does not apply where disclosure of a matter in the document "would, on balance, be in the public interest".

42.     It is generally accepted that whilst the onus remains with the person claiming an exemption, the public interest provisions in the FOI Act create a rebuttable presumption that disclosure is contrary to the public interest.  As the Tribunal said in Re Mann and ATO (1985) 7 ALD 698:

"The effect of the terms of ss 33A(5), 39(2) and 40(2) is to allow this prima facie conclusion to be displaced.  While not overlooking the onus imposed on the respondent agency by s61, the terms in which the sub-sections are couched will require an applicant in some circumstances to raise matters which, being relevant to the public interest, weigh in favour of disclosure in which the nature of the exemption in section 40(1) is of such a nature that satisfaction of them would make disclosure prima facie contrary to public interest.  The effect here is, it is contended, that the Applicant is required to raise matters that would weigh in favour of disclosure".

43.     Mr Yabsley was unable to persuade the Tribunal that disclosure of this document would be on balance, in the public interest.  I was authorised by the respondent to advise Mr Yabsley that the contents of the Case Complexity Descriptor would be of little assistance to Mr Splann in that the indicators are particularly low and the document would be of little if any relevance to any  contemplated criminal proceedings.  Mr Yabsley accordingly did not pursue the issue of public interest.  I am satisfied on the basis of the submissions made by Mr Sparkes that there is no public interest in the disclosure of this document.  It is arguable that disclosure would be against the public interest in that it may thwart the procedures used by Centrelink to recover monies owed to the public purse and avoid overpayments of Centrelink benefits. 

Conclusion

44. For the reasons outlined above I am satisfied that document number 1 identified as the Case Complexity Descriptor - 2 pages - folios 7 and 8 is exempt from disclosure under the provisions of sections 37(2)(b), 40(1)(a) and (d) of the FOI Act. 

45.     As discussed above I accept that documents numbers 2, 3, 4 and 5 can be released subject to deletions of all personal information relating to persons other than the applicant and Vanessa Adams. 

46.     The Tribunal accordingly makes the following orders:

1. That until further order pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975 the transcript of the parts of the hearing of this matter which took place in private and the exhibits tendered on 16 March 2009, identified as "confidential documents", not be disclosed to anyone other than members of the Tribunal and members of the staff of the Tribunal who need to have reference to the documents in the performance of their duties.

2.        The Tribunal varies the decision under review as follows:

i)         Document number 1 identified in the Schedule of Documents is an exempt document under the FOI Act pursuant to sections 37(2)(b), 40(1)(a), 40(1)(d).

ii) That a copy of document number 2 identified in the Schedule of Documents be released to the applicant in the amended form as tendered at the hearing with deletions pursuant to section 22 of the FOI Act such that it         not be an exempt document.

iii) That a copy of document number 3 identified in the Schedule of Documents be released to the applicant in the amended form tendered at the hearing with deletions pursuant to section 22 of the FOI Act such that it not       be an exempt document.

iv) That a copy of document number 4 identified in the Schedule of Documents be released to the applicant in the amended form tendered at the hearing with deletions pursuant to section 22 of the FOI Act such that it not       be an exempt document.

v) That a copy of document number 5 identified n the Schedule of Documents be released to the applicant in the amended form tendered at the hearing with deletions pursuant to section 22 of the FOI Act such that it not       be an exempt document.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed:  ..[R Hunt]..........................
               R Hunt (Administrative Assistant)

Date/s of Hearing  16 & 23 March 2009
Date of Decision  7 May 2009
Representative for the Applicant    Mr W Yabsley
Solicitor for the Respondent          Mr B Sparkes, Centrelink Legal Services

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