Kapeen-Gangitano and Secretary, Department of Family and Communit Y Services

[2003] AATA 1163

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1163

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1122

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RHONDA KAPEEN - GANGITANO

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Professor Tania Sourdin, Member

Date2 June 2003

PlaceSydney

Decision The Tribunal affirms the decision under review.

………………………………………

Professor T Sourdin

Member

The Tribunal notes:

1.That following the application made by the applicant to the AAT additional material was produced by the Respondent to the Applicant. In addition, the Tribunal notes that the Applicant made the application to the AAT after her original request for review was mislaid by the Respondent. The Tribunal notes, with concern, that as a result of the actions of the Respondent, the Applicant was required to make application to the Tribunal and that almost 12 months elapsed between the date of the original application for information being made by the Applicant and the provision of part of the information requested by the Applicant.

FREEDOM OF INFORMATION – request for access to documents which are unable to be found – all reasonable searches have been conducted – medical documents – documents containing personal information about another - decision affirmed

Freedom of Information Act 1981 sections 24A, 41(1), 41(3)

Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138

Re Beesley and Federal Commissioner of Taxation [2001] AATA 476

Zacek and Australian Postal Commission [2002] AATA 473

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

In Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111

REASONS FOR DECISION

2 June 2003  Professor T Sourdin

1.      This matter relates to an application made by Ms Rhonda Kappen-Gangitano (“the Applicant”) on 28 February 2002 (to Centrelink) for access to Centrelink files. Ms Kappen-Gangitano indicated in her application that she was concerned that documents may be on her Centrelink file that were misleading and needed to be inspected.  Ms Kapeen-Gangitano sought a number of documents from Centrelink pursuant to the Freedom of Information Act 1982 (“the FOI Act”).

2.      On 19 March 2002 a Centrelink Freedom of Information Officer wrote to Mrs Kapeen-Gangitano requesting proof of executor status or permission from the executor in relation to records of other persons mentioned in her Freedom of Information request made on 28 February 2002. 

3. On the 2 April 2002 a Freedom of Information Officer made a decision to grant the Applicant access to 179 folios from the Applicant's Centrelink file. Access to parts of certain folios was withheld on the basis that they contained personal information in relation to people other than the Applicant. The Freedom of Information Officer decided that the undisclosed parts of folios 162 were exempt from disclosure under subsection 41(1) of the FOI Act. On 21 May 2002 a request was made by the Applicant to review the Freedom of Information decision. It would seem that no action was taken in relation to this request.

4. On 11 September 2002 the Applicant lodged request for review of the decision with the Administrative Appeals Tribunal. On 5 December 2002 Centrelink finally completed a review of the original decision. It would appear that at that time, an additional file was located and was released in part to Ms Kapeen-Gangitano. Mrs Kapeen - Gangitano was denied access to certain folios under section 41(3) of the FOI Act. The Review Officer advised that the details would be released to the Applicant’s nominated doctor. On 21 December 2002 the Applicant provided her doctor’s contact details and requested further information in relation to ABSTUDY.

5. On 3 February 2003 the Review Officer forwarded certain pages to the Applicant’s nominated doctor. The Review Officer also released other documents to Ms Kapeen-Gangitano (folios 349 – 455), which consisted of archived computer records relating to the applicants ABSTUDY payments. The Respondent indicated that some documents could not be released; the Applicant’s 1997 and 1998 ABSTUDY application could not be located and access to them was denied under section 24(A) of the FOI Act.

6. On 2 June 2003 I heard this matter and delivered an oral decision and indicated to the Applicant that if she wished to apply for written reasons she could do so. The formal decision was sent to Ms Rhonda Kapeen-Gangitano on 2 June 2003 together with a letter advising her of his right to apply under section 43(2A) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) for written reasons for the decision. On 4 September 2003, the Respondent wrote to the Tribunal and requested written reasons. The application for written reasons was outside the 28-day period specified in section 43(2A) of the AAT Act, however, I considered that it was appropriate on this occasion to provide written reasons.

7.      These are my written reasons for the decision delivered on 2 June 2003.

8. At the hearing on 2 June 2003 Ms Rhonda Kappen-Gangitano appeared and gave evidence. Ms Hannah Schuster, an advocate with the Department of Family and Community Services, appeared for the Respondent. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the AAT Act and the exhibits tendered during the hearing.

9.      The exhibits tendered during the hearing were:

EXHIBIT	ITEM	DATE
TD1	T-Documents, T1-T8, pp1-67
A1	Fax from Applicant to Tribunal	28 January 2003
A2	Fax from Applicant to Tribunal	28 January 2003
A3	Copy of name change and birth certificates
A4	Fax of Applicant to Tribunal	31 January 2003
A5	Fax – additional information of tax dealings from Applicant to AAT	5 February 2003
A6	Fax from Applicant to Tribunal	3 February 2003
A7	Fax from Applicant to Tribunal	7 February 2003
A8	Fax from Applicant to Tribunal, including correspondence between Applicant and Centrelink	17 February 2003
A9	Bundle of documents from Applicant to Tribunal including hospital medical records of the Applicant	21 February 2003
R1	Respondent’s Statement of Facts and Contentions	26 May 2003
R2	Statement of Ms Julie Gustafson	26 May 2003
R3	Affidavit of Ms Christina Hartup	27 May 2003
R4	Supplementary affidavit of Ms Christina Hartup	27 May 2003
R5	Documents related to Records Disposal Authority	9 February 2003
R6	Respondent’s Statement of Information	18 December 2002
R7	Letter from Respondent to Tribunal	9 February 2003

Issues

10.     There are three issues that arise in relation to this application to the Tribunal that are noted in the Secretary’s Statement of Facts and Contentions dated 26 May 2003 (R1) and also in the correspondence sent to Rhonda Kapeen-Gangitano on 18 December 2002 (R6). Those issues are:

(a)Whether folios 162 and 176 are partially exempt under section 41(1) of the FOI Act because the documents contained personal information about another person and were not used to make a decision affecting Ms Kapeen-Gangitano.

(b)Whether folios 320 and 321 are exempt under section 41(3) of the FOI Act until they were released through a doctor nominated by Ms Kapeen-Gangitano.

(c)Whether access to other documents was properly refused pursuant to section 24A of the FOI Act on the basis that they could not be located.

11.     This matter is somewhat complex as it involves a long history of the Applicant is dealing with Centrelink in respect of her FOI application.

Legislation and reasons

12. The relevant legislation in this matter is contained in the Freedom of Information Act 1982 and is as follows:

“24A   An agency or Minister may refuse a request for access to a document if:

(a)       all reasonable steps have been taken to find the document; and

(b)       the agency or Minister is satisfied that the document:

(i)is in the agency's or Minister's possession but cannot be found; or

(ii)       does not exist.”

13. Section 24A of the FOI Act was relied upon by the Secretary to refuse access to the Applicant’s 1997 and 1998 ABSTUDY application on the grounds that after reasonable searches had been conducted they could not be located. An affidavit of Ms Christina Hartup sworn on 27 of May 2003 (R4) indicated that ABSTUDY documents prior to 1997 had been destroyed in accordance with Centrelink's Records Disposal Authority 1335. The affidavit also reveals that searches for ABSTUDY documents were undertaken at the Victorian records management unit, the Dapto student assistant storage facility and the Sydney ABSTUDY office.

14.     In Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138, the Tribunal considered the Macquarie Dictionary definition of the word “reasonable” and approved the following meaning:

“…4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate…5. Of such an amount, size, number, etc, as is judged to be appropriate or suitable to the circumstances or purpose…Of a fair, average, or considerable amount, size, etc…” 

See also Re Beesley and Federal Commissioner of Taxation [2001] AATA 476 at para 49ff..

15.     In relation to this category of documents, I am satisfied on the affidavit evidence before me that all reasonable steps have been taken to find the documents to which Mrs Kapeen-Gangitano has sought access and that they cannot be found.  I am satisfied on the balance of probabilities that the documents do not exist.

16. The second legislative provision that is relevant is Section 41(1) of the FOI Act that relates to disclosure of information that would involve the unreasonable disclosure of personal information about person other than the applicant. Section 41(1) of the FOI Act is as follows:

“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).”

17. There are a number of cases that have dealt with the meaning and application of Section 41(1). Recently Senior Member Dwyer considered the nature of section 41(1) in some detail in Zacek and Australian Postal Commission [2002] AATA 473. In that matter, Member Dwyer referred to the fact that the exemption in section 41 is no longer confined to the “private affairs” of a person, but relates to all information about an individual whose identity is apparent or reasonably ascertained from the document, where disclosure of that information would be unreasonable. As to whether or not disclosure would be unreasonable, Member Dwyer referred submissions and to the test set out in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALD N257 at p N259 where the Tribunal said at paragraphs 51 and 52:

“51     … [I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. Whether a disclosure is ‘unreasonable’ requires, in my view, 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.

52       However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.”

18.     Also. in Re Williams (1985) 8 ALD 219, Senior Member McMahon, as he then was, added a further discussion of the concept of unreasonableness, saying at p 224:

“I would consider it highly likely that the authors of all the 26 documents concerned would not wish their contents to be disclosed. If their documents became public and their identity was consequently disclosed, their present employment could be destabilized. If there were any applicants outside the public service and it became known to their employer that they were considering moving to another position, this could have adverse effects on their present employment and their prospects for promotion. Even in the case of applicants within the public service, an application of this nature, if widely known, could indicate some dissatisfaction or restlessness which could have an effect on the applicant’s career. These considerations are of special force in the case of those two persons who withdrew their applications.

It would therefore be unreasonable to disclose this information. In considering the test of reasonableness one must not think only of disclosure of the documents to this particular applicant. The identity of the applicant is irrelevant. Reasonableness must be considered as if disclosure was to the world at large. Section 11 gives a general right of access to “every person”.. Section 3 talks of a “right of the Australian community to access”. One must ask oneself ‑ is it reasonable to trumpet to X’s friends, employers, rivals, associates, family, or enemies that X is applying for a new job? It certainly cannot be said that such disclosure would be in the public interest. How then can it be said to be reasonable when there is no countervailing consideration to the privacy to which one would normally expect to be entitled?”

19.     In Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111, Heerey J, at p123, stated that it was not necessary in order to make out the section 41(1) exclusion that there be some "particular unfairness, embarrassment or hardship which would ensure to a person by reason of the disclosure".  He acknowledged that such matters would weigh in favour of exclusion but he added:

“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.”

20. Although all those decisions relate to section 41(1) when it referred to information relating to the “personal affairs” of a person, rather than to “personal information”, as it now does, they are still the leading cases on the application of section 41 of the FOI Act.

21.     It is well established that question whether disclosure is unreasonable, must be considered as if disclosure is to the world at large and not to a particular applicant (see Re Williams (supra) at p224). The specific information sought by this application was information obtained relating to a rental review of premises which Ms Kapeen-Gangitano shared with other persons. The information relates to persons who once shared premises with Ms Kappen-Gangitano and who may have had access to government benefits. In the Tribunals view it is not appropriate to release this specific information. The Tribunal has also perused the information and is satisfied that this information is irrelevant to any decision made about the Applicant.

22. The third legislative provision that is relevant is Section 41 (3) of the FOI Act.

“(3)     Where:

(a)a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person; and

(b)it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant's physical or mental health, or well-being;

the principal officer or Minister may, if access to the document would otherwise be given to the applicant, direct that access to the document, so far as it contains that information, is not to be given to the applicant but is to be given instead to a qualified person who: …”

23.     The Tribunal notes that Ms Kappen-Gangitano has now provided her Doctor’s contact details and that she indicated at the hearing that she had discussed the subject documents with her doctor who had been provided with a copy of the documents. The documents related to material prepared by a psychologist and on balance, it appears to the Tribunal that the receipt of such documents had the capacity to cause Ms Kapeen-Gangitano stress and could impact upon her physical and mental health in circumstances as suggested in the statute.

24.     The Tribunal has now dealt with each of the matters that are the subject of the review application and affirms the decisions made in respect of the FOI application. It should also be noted that at the hearing Ms Kapeen-Gangitano was keen to  address issues where, in her view,  misleading and incorrect information had been placed her Departmental file. At the hearing of this matter, Ms Kapeen-Gangitano was informed that these matters were not the subject of this review application which was dealing with the FOI application only.

25.     Another matter that is relevant relates to the processing of the application made by Ms Kapeen - Gangitano. The Tribunal is concerned about the way in which the material was produced by the Respondent to the Applicant. Apart from misplacing the Applicant’s review application, it would seem that many months passed before the Applicant was provided with material that she was entitled to. In addition, it is clear that some material only came to light after the Applicant pursued the matter further with the Respondent. This matter was raised at the hearing of this matter and the Respondent agreed that the Department’s response was tardy under the circumstances.

26.     The decision under review is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Professor Tania Sourdin, Member

Signed:         L Bonouvrie
  Associate

Date/s of Hearing  2 June 2003
Date of Decision  2 June 2003
Representative for the Applicant:              Self-represented
Advocate for the Respondent:                   Ms Hannah Schuster