Jones and Commissioner of Taxation

[2008] AATA 834

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 834

ADMINISTRATIVE APPEALS TRIBUNAL      )   

)    No: 2007/5336

GENERAL ADMINISTRATIVE DIVISION        )   

ReCAROLINE FRANCES JONES

Applicant

And    COMMISSIONER OF TAXATION

Respondent

DECISION

TribunalSenior Member M D Allen,

Date18 September 2008

PlaceSydney

DecisionThe decision under review is set aside and this matter remitted to the Respondent for re-determination in accordance with these reasons for decision.

....................[sgd].......................

M D Allen
  Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – Reverse FoI – Whether documents intended to be released contained personal information about a person – would disclosure of that information be unreasonable.

RELEVANT ACT/S:

Freedom of Information Act 1982: ss 4 , 11, 41, 45

Taxation Administration Act1953: ss 357-90

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CITATIONS

Jorgensen v Australian Securities and Investments Commission (2004) 208 ALR 73

Re Williams and Registrar, Federal Court of Australia (1985) 8 ALD 219

Ward v Centrelink (2005) 84 ALD 231

Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429

Kristoffersen v Department of Employment & Workplace Relations & Small Business [2002] FCA 55

Wiseman v Commonwealth (unreported: Federal Court Full Court, No G167 of 1989; 24 October 1989)

Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN, N257

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REASONS FOR DECISION

18 September 2008	Mr M D Allen, Senior Member
Summary

1.      By application made 2 November 2007, the Applicant sought review of a decision by the Respondent to release, pursuant to the Freedom of Information Act 1982 (the FoI Act), documents pertaining to a private ruling sought by the Applicant as a co-executor of her late father’s estate.

2.      The documents which the Respondent intended to release can be described as:

(a)Documents 10-13 relating to a private ruling number 69383, issued on 14 December 2006, namely an application, notification that the application was invalid, a subsequent application and the private ruling itself;

(b)Document 14 comprising internal file notes relating to the processing of the applications for the private ruling.

3. The Applicant’s objection was made in reliance upon s 41 of the FoI Act, which states inter alia:

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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).

(2)…

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“Personal information” is defined in s 4 of the FoI Act as follows:

…

"personal information" means 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.

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4. Before discussing what is personal information and the circumstances in which it might be released, the general parameters of the legislative scheme established by the FoI Act must be stated.

5. Section 11 of the FoI Act states:

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Right of access

(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; or

(b)an official document of a Minister, other than an exempt document.

(2)Subject to this Act, a person's right of access is not affected by:

(a)any reasons the person gives for seeking access; or

(b)the agency's or Minister's belief as to what are his or her reasons for seeking access.

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6. The effect of s 11 was explained by Weinberg J (as he then was) in Jorgensen v Australian Securities and Investments Commission (2004) 208 ALR 73 at para 86:

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Section 11(1) of the FoI Act creates a legally enforceable right of access to documents, other than exempt documents. The purpose for which a person wishes to obtain access to a document is of no relevance to that person’s right of access, and need not be disclosed as a basis for seeking such access: Johnson Tiles Pty Ltd v Esso Australia Ltd (No 3) [2000] FCA 495; 98 FCR 311 at [26].

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7. A further factor to the kept in mind is that disclosure under the FoI Act is disclosure to the public at large and there can be no constraints upon the disclosed material, unlike material obtained by discovery in civil litigation: cf Re Williams and Registrar, Federal Court of Australia (1985) 8 ALD 219.

8. As to what is personal information, the definition in s 4 of the FoI Act was discussed by Mansfield J in Ward v Centrelink (2005) 84 ALD 231. His Honour referred to the earlier Full Court decision in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 and after noting that that decision pre-dated amendments to ss 4 and 41 of the FoI Act by the Freedom of Information Amendment Act 1991 stated (at paras 27-29):

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In summation, Lockhart J (with whom Jenkinson and Heerey JJ agreed) stated at 438:

This is not an appropriate case in which to examine definitively the circumstances that may constitute the unreasonable disclosure of information relating to a person’s personal affairs because the argument before us proceeded on the limited basis outlined previously.  It is sufficient for present purposes to say that every person has a legally enforceable right to obtain access to documents under the FOI Act: s 11. There is no requirement that the person seeking access have a proprietary or any other interest in documents or the information contained in them. The object of the Act, as expressed by s 3, is to give the Australian community the right of access to information in the possession of the Australian Government.  What is unreasonable disclosure of information for purposes of s 41(1) must have as its core public interest considerations. The exemptions necessary for the protection of personal affairs (s 41) and business or professional affairs (s 43) are themselves, in my opinion, public interest considerations. That is to say, 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 sections 41 and 43 are satisfied. An examination of the other provisions of Part IV of the Act concerning exempt documents confirms this approach.

Heerey J, at 441, added the following comments with respect to the issue of unreasonableness:

Turning to the criterion of unreasonableness prescribed by the s 41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. 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 excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.

In Kristoffersen v Department of Employment Workplace Relations and Small Business [2002] FCA 55 (Kristoffersen), Kiefel J, after discussing the Full Court’s decision in Colakovski stated at [28]:

Section 41(1) cannot in my view simply be waived by the person to whom the information or opinion relates, in particular because it extends to opinions expressed about that person. Whether disclosure is to take place depends then upon whether it is regarded as unreasonable. In that connexion the Tribunal applied the reasoning of Heerey J in Colakovski (at 440-441), holding that the documents containing the opinions were supplied on the basis that they remain confidential and their disclosure would cause embarrassment or distress to them. It may be that the Tribunal has understated the potential effects upon the authors if disclosure were to occur, but no legal error is disclosed in its reasoning on this point.

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9.      In Wiseman v Commonwealth (unreported: Federal Court Full Court No G167 of 1989; 24 October 1989), Sheppard, Beaumont and Pincus JJ held that the AAT had made no error in applying Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN, N257 at N259 in particular the passage:

…  Whether a disclosure is unreasonable requires … a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.

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10.     And added at page 4 of the unreported judgment:

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The second limb of s 41(1) requires the making of a judgment as to whether the disclosure would be unreasonable.  Again, no real question of principle arises here.  Whether or not disclosure would be unreasonable is a question of fact and degree which calls for a balancing of all the legitimate interest involved.

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11.     When considering whether it is reasonable or not to disclose personal information, I regard the fact that the information may be available from other sources as merely a matter to be taken into account.  For example that the will of the Applicant’s deceased father was admitted to probate and hence might be the subject of a search at the Supreme Court registry does not of itself make the release of that document reasonable in these proceedings.

12.     A confounding issue in this matter has been that the attitude of officers of the Australian Tax Office (ATO) as to the private ruling, has not been consistent.  On 2 July 2007, a Deputy Commissioner of Taxation wrote to the Applicant stating inter alia:

…  Because the answers to the questions posed were considered by the Tax Office from the point of view of the executor, and not you personally, the Commissioner considers that the ruling is in fact invalid and cannot be relied upon.

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13.     In these proceedings the Commissioner of Taxation has maintained that the ruling is valid.  This is prima facie correct in as much as s 357-90 of the Taxation Administration Act 1953 (the TAA) states that the validity of a ruling is not affected merely because a provision of Part V-5 of the TAA relating to the form of the ruling or the procedure for making it has not been complied with.

14.     Document 10 in the schedule of documents provided to the Tribunal is a request for a private ruling.  In that letter the Applicant sets out the basis upon which the ruling is required.  The document sets out material, which is personal information about the Applicant.  In particular, I regard the reasons the Applicant stated as to why the ruling was required and her motivation for obtaining the said ruling, constitutes personal information about her.

15. Having regard to the personal information in the document and the reasons why a private ruling was required, I find it would not be reasonable to disclose the contents of the document, in particular I find that the information was provided on the basis it would remain confidential (ie, as a private ruling) and disclosure would cause embarrassment and distress to the Applicant. Thus document 10 is exempt from disclosure pursuant to s 41 of the FoI Act.

16.     Document 11 contains the Applicant’s tax file number and this is personal information and exempt from disclosure.  The rest of the document is however unremarkable and the decision to disclose this document with the Applicant’s tax file number deleted is affirmed.

17.     Document 12 is a request for a private ruling in proper form.  For the reasons referred in relation to document 10, I find that paragraphs 7, 8 and 9 of that document are exempt from disclosure in addition to the material already withheld.

18.     Document 13 includes the notification of the making of the private ruling.  The decision to release this document with the Applicant’s tax file number deleted is affirmed.  As however disclosure is to disclosure to the public at large, the decision is varied in that the tax file number of the estate is to be deleted.

19.     The second part of document 13 is the private ruling itself, together with an edited version of that ruling, which appears on the Respondent's website.

20.     Under the heading “The scheme that is the subject of the ruling”, the ruling sets out information as to the beneficiaries under the will of the Applicant's deceased father and reasons for the application for the private ruling.  These matters are clearly information about the Applicant, in particular her relevant state of mind motivation for seeking the ruling together with, of course, what her benefits were under the will of the deceased.  As with document 10 and part of document 12, I find that this is personal information about the Applicant and it would be unreasonable to disclose that information.  That part of document 13 that is contained under the heading “The scheme that is the subject of the ruling” is therefore exempt from disclosure.

21.     Document 14 consists of file notes made in the ATO.  The decision regarding release of parts of this document as indicated in the schedule of documents is affirmed.

22.     The decision not to release documents 15 and 16 is affirmed.  They clearly contain personal information respecting the Applicant and I find that any disclosure of this information would not be reasonable.

23. In passing I considered whether s 45 of the FoI Act had any relevance in these proceedings although it was not raised by either party. For the reasons stated by Weinberg J in Jorgensen (supra) I do not regard s 45 as having any application. In Jorgensen (supra) at paragraphs 77 and 79, Weinberg J said:

…  It is now tolerably clear that, in its present form, s 45 requires a finding that disclosure would give rise to an action for breach of confidence.  …

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An action for breach of confidence, in equity, requires proof of a number of elements. It is based upon the failure of a confidant to preserve the confidential character which has been communicated in circumstances giving rise to an obligation of confidence: ….  The information must be of a confidential nature, in the sense that it is not something which is public knowledge: … (authorities omitted).

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24.     The decision under review is set aside and remitted to the Respondent to be re-determined in accordance with these reasons for decision.

I certify that the 24 preceding paragraphs are a   true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:   .....[sgd]......................................................................
               Associate

Date of Hearing:  4 September 2008
Date of Decision:  18 September 2008
Appearance for the Applicant:           Dr G Donovan
Solicitor for the Respondent:             Australian Government Solicitor
Counsel for the Respondent:           Ms J Needham SC