Knight and Commonwealth Ombudsman (Freedom of information)
[2021] AATA 2504
•26 July 2021
Knight and Commonwealth Ombudsman (Freedom of information) [2021] AATA 2504 (26 July 2021)
Division:FREEDOM OF INFORMATION DIVISION
File Numbers: 2017/5456
2017/6279
Re:Julian Knight
APPLICANT
AndCommonwealth Ombudsman
RESPONDENT
Appeal from: Julian Knight and Attorney-General’s Department (Freedom of Information) [2017] AICmr 79 and Julian Knight and Attorney-General’s Department (Freedom of Information) [2017] AlCmr 94
DECISION
Tribunal:Deputy President Britten-Jones
Date:26 July 2021
Place:Melbourne
The Tribunal affirms the decisions under review.
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Deputy President Britten-Jones
Catchwords
FREEDOM OF INFORMATION — review of decisions of Australian Information Commissioner that parts of documents are exempt — documents conditionally exempt under section 47F and section 47E(d) of the Freedom of Information Act 1982 — access would involve unreasonable disclosure of personal information — No obligation under section 27A to consult with persons concerned when access denied — public interest met by current extent of disclosure — decisions under review affirmed
Legislation
Freedom of Information Act 1982 (Cth)
Privacy Act 1988 (Cth)
REASONS FOR DECISION
Deputy President Britten-Jones
26 July 2021
This is an application for review of a decision made by the Australian Information Commissioner to refuse access to certain parts of documents under s 55K of the Freedom of Information Act 1982 (Cth).[1] The respondent has provided parts of the documents requested to the applicant. There remains a dispute with respect to the redacted parts of those documents.
[1] All references to legislation are to the Freedom of Information Act 1982 (Cth) unless otherwise stated.
The documents relate to the Defence Abuse Response Taskforce (DART) which was an administrative body established in November 2012 by the Australian government and administered by the Attorney-General’s Department. The DART’s primary role was to assess and respond to complainants with respect to individual cases of sexual abuse which occurred in the Australian Defence Force before 11 April 2011. From 1 December 2016, the Defence Force Ombudsman, forming part of the Office of the Commonwealth Ombudsman, assumed responsibilities for the functions of the former DART.
In 1982, at 14 years of age, the applicant enlisted in the Australian Army Cadet Corps and served as a cadet until he finished high school in 1985. In 1987, he served in the Australian Army as a staff cadet at the Royal Military College, Duntroon. He was discharged from the Army on 24 July 1987. On 9 August 1987, he was arrested after he committed a mass shooting in Melbourne known as the ‘Hoddle Street Massacre’. He has been incarcerated ever since.
Whilst at the Royal Military College, Duntroon, the applicant claims that he and others were physically abused and bullied. On 26 November 2013, the applicant applied for a reparation payment and submitted a personal account of his physical abuse, harassment and bullying at Duntroon. In 2016, the application was refused because he had been convicted of a serious crime. As part of that process, the DART prepared a recommendation dated 19 May 2016 relating to the applicant’s eligibility for a reparation payment, together with the following documents:
(a)the applicant’s application for reparation payment form;
(b)the DART’s Assessment Note for the applicant dated 20 May 2016; and
(c)a letter from the DART to the applicant dated 20 May 2016 advising him that he was not eligible for a reparation payment.
Collectively, these documents are referred to as the May 2016 Documents.
The documents in application 5456 of 2017
The May 2016 Documents form the first document in issue in application 2017/5456 (5456).[2]
[2] T6 exhibit 1.
The second document in issue is the same Assessment Note that forms part of the May 2016 Documents.[3]
[3] T7 exhibit 1.
The third document is a series of spreadsheets in landscape form with columns including the name and other details of each complainant, the nature of the incident and its date.[4]
[4] T8 exhibit 1.
I note that these three documents are very minimally redacted.
The DART report dated 19 May 2016, a single page document which includes a recommendation as to the applicant’s eligibility for a reparation payment, is fully disclosed except for the name of the author which the applicant no longer seeks. The accompanying Assessment Note and decision letter to the applicant dated 20 May 2016, of some 10 pages of text, redacts only the name and file number of two complainants. Otherwise, the first and second documents in 5456 have been disclosed.
In the third document, the name of each complainant in the first column is redacted, together with the ‘year of intake’ for that complainant. The ‘year of abuse’ is also redacted. The column dealing with the nature of the case is not redacted. An example of a description in this column is ‘Sexual abuse, physical abuse and bullying and harassment’. In the column dealing with the ‘Incident/s’, dates and names have been redacted together with some, but not all, of the details of the allegations. There is no redaction of the statistics setting out the number of each category of abuse for each complainant. The column dealing with the impact on the complainant has very minor redactions.
It is apparent from my review of the spreadsheets comprising the third document in 5456 that the purpose of the redactions is to prevent the disclosure of any information that might identify the complainant. In addition to the redaction of the name of the complainant, there are dates and some specifics of allegations and impacts which are redacted. In my view those redactions do not go beyond information that could potentially identify the complainants.
The documents in application 6279 of 2017
The following four documents are at issue in 2017/6279 (6279):
(a)Letter from Slater & Gordon dated 1 November 2013 with an attached DART Personal Account form and instructions, statutory declaration and submissions dated 25 August 2013 (T6);
(b)DART Personal Account form and instructions, consent form, and statutory declaration (T7);
(c)DART Assessment Note dated 22 March 2014 (T8); and
(d)DART Assessment Note dated 28 January 2014 (T9).
The first document in 6279 is a letter from Slater & Gordon to DART submitting a ‘Personal Account form’ of a complainant which comprises a statutory declaration, including standard questions, a ‘consent form – use and disclosure of personal information’ and submissions. The letter redacts the name, phone number and email address of the solicitor, as well as the name of the complainant and the nature of the instructions. The name of the complainant is redacted from the consent form. All the answers given to the standard form questions in the statutory declaration are redacted. These answers include the personal and employment details of the complainant, the details of the persons who carried out the incidents or who may have witnessed them, the description of the incidents and their impact. The submissions prepared by the solicitor for the complainant are also redacted.
The second document in 6279 relates to a second complainant who applied to DART for a reparation payment. It includes a Personal Account form, a consent form and a statutory declaration with supporting documents including numerous character references. Further, there are letters from the complainant’s solicitor and documentation relating to the complainant’s requests under the Freedom of Information Act. As in the first document in 6279, the name of the complainant is redacted from the consent form and all the answers given to the standard form questions in the statutory declaration are redacted. The supporting documents and the documents relating to the requests under the Freedom of Information Act are also redacted.
The third document in 6279 is an Assessment Note from DART relating to the complainant named in the first document. It is fully redacted except for the date and the standard form part of the document.
The fourth document in 6279 is an Assessment Note from DART relating to the complainant named in the second document. It is fully redacted except for the date and the standard form part of the document.
Evidence and Contentions
The applicant relied upon his affidavit dated 12 March 2018, his further unsworn affidavit dated 9 April 2021, an affidavit of former Army officer staff cadet, Steven Ridd, dated 26 March 2021, and a statement from Associate Professor Ben Wadham dated 23 March 2021. The applicant and Mr Ridd also gave oral evidence. Associate Professor Wadham was to give oral evidence, but the day before the hearing he advised the Tribunal that he would not participate ‘due to employment conflicts of interest’. Consequently, his statement was admitted into evidence, but he was not available for cross examination. The Respondent contended that in these circumstances I should give very little weight to his evidence.
The respondent relies upon an affidavit dated 11 December 2019 of Louise Elizabeth Macleod from the Office of the Commonwealth Ombudsman.
The respondent contends that the information sought is conditionally exempt under ss 47F and/or 47E(d) and that disclosure would be contrary to the public interest.
The applicant says in his statement of facts, issues and contentions:
78. It is a fact that of the 27 junior cadets in Kokoda Company in the first half of 1987, one complained of bastardization whilst at the College, three subsequently made complaints to the DART (myself and the two authors of the documents in question), and two published comments on bastardization at Duntroon on the Internet (Mr Ridd and the unidentified contributor to the Wikipedia entry on me).
79. It is a fact that bastardization at Duntroon has been a reoccurring problem, and that Duntroon was one of the most complained about institutions to the DART (and the second most complained about officer training institution after ADFA).
80. It is a fact that the issue of bastardization at Duntroon in general, and the Applicant's case in particular, have been the subject of extensive official reports and public comment.
81. It is contended that it is in the public interest for information about bastardization at Duntroon to be released into the public domain, to "the world at large", so that it may be evaluated and discussed with a view to elimination such behaviour.
82. It is further contended that it is in the public interest for such information to be released so that it may be provided to academics for research purposes.
83. It is further contended that it is in the public interest for such information to be released so that it may support a formal complaint to the Defence Force Ombudsman and in support of intended civil litigation.
84. It is not contended that the identity of the authors of the documents in question should be released against the wishes of those persons.
85. It is contended, however, that it was dependent on the decision maker/Respondent to obtain the views of the authors of the documents in question as to disclosure (I will give evidence that if I was the author in question, I would assent to disclosure of my Personal Account to "the world at large").
86. It is alternatively contended that even if the authors of the documents did not agree to disclosure, the public interest dictates that the documents should have been released with identifying information redacted. The release of the documents would promote the object of the FOI Act, and would inform debate on a matter of public importance.
There was a significant amount of evidence before the Tribunal from the applicant and Mr Ridd about events including ‘bastardisation’ that occurred at Duntroon. The respondent did not take issue with respect to this evidence and it was not the subject of cross examination. Mr Ridd and the applicant both gave evidence to the same effect that if they were the authors of the DART personal accounts, they would give permission to release them.
At the hearing, the applicant said that he wants access to the undisclosed material to support a further claim for reparation that he intended to make. He wants access to the name of a solicitor at Slater & Gordon who acted for other complainants so he can ask the solicitor to seek the view of their clients as to whether they would consent to the release of their personal information. He wants the information relating to complainants because their incidents are similar to his, which would support his intended further claim. He says that the complainants should be contacted and asked if they would release their personal information. He said that the complainants may consent to the release of their personal information if asked, but no one has asked them.
The applicant referred to s 27A which provides for an obligation to consult the person concerned before deciding to give access to a document. He says that s 27A supports his contention that the complainants should be consulted to determine if they consent to disclosure of their personal information.
The applicant no longer pursues any personal information relating to former DART staff members, but he does pursue personal information relating to third party individuals including DART complainants, individuals who are the subjects of abuse allegations, and witnesses.
Unreasonable disclosure of personal information – s 47F
The first claim of the respondent is that the documents in question are conditionally exempt under s 47F.
Section 47F provides that a document is conditionally exempt if its disclosure would involve the unreasonable disclosure of personal information about any person. For the purposes of the Freedom of Information Act, ‘personal information’ has the same meaning as given in the Privacy Act 1988 (Cth). The Privacy Act defines personal information as meaning information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether or not the information is true or recorded in a material form.
Subsection 47F(2) provides that regard must be had to the following matters in determining whether the disclosure of a document would involve an ’unreasonable’ disclosure of personal information:
(a)the extent to which the information is well known;
(b)whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c)the availability of the information from publicly accessible sources; and
(d)any other relevant matters.
The Freedom of Information Guidelines (the Guidelines) at 6.138 say that the personal privacy exemption is designed to prevent the unreasonable invasion of third parties’ privacy. The Guidelines at 6.142 say that the key factors for determining whether disclosure is unreasonable include:
(a)the author of the document is identifiable;
(b)the documents contain third party personal information;
(c)release of the documents would cause stress on the third party; and
(d)no public purpose would be achieved through release.
The personal information relating to the two complainants, the subject of application 6279, was communicated to the DART in confidence. The consent form says that:
Personal information of people who contact the Taskforce is treated as confidential and is managed in accordance with the Privacy Act 1988 (Cth).
The affidavit of Louise Elizabeth Macleod provides details of the regime by which individuals provide information to the Commonwealth Ombudsman on the understanding that their information will be treated as confidential. In addition, she deposes to the confidentiality of information relating to alleged abusers and other third parties, as well as the confidentiality of the personal details of staff who receive and deal with information.
There is no doubt that the information to which the applicant seeks access is personal information and that it is not well known or publicly available. It is also very relevant that the complainants disclosed the information to DART on the express basis that it would be kept confidential. The confidentiality of the personal information has been maintained under the regime deposed to by Ms Macleod. The information includes personal information about the complainants and about third parties, such as alleged perpetrators and witnesses of abuse. The information includes details of alleged abuse.
In the circumstances where the information is highly sensitive and has been disclosed on a confidential basis, it would be unreasonable to disclose that information to the applicant.
With respect to documents one and two in 5456 that relate to the applicant’s own application for a reparation repayment, I note that they have been fully disclosed except for the name of the author of the DART report (which is no longer sought) and the names of two other complainants. I consider that disclosure of the names of the two other complainants would be unreasonable because the complainants disclosed their names on a confidential basis. Further, the information itself is highly sensitive and likely to cause stress if it is released.
The disclosure of the personal information of the solicitor of the complainants would also be unreasonable because the document identifying the solicitor was covered by the same regime of confidentiality.
The applicant says that disclosure of the names of the complainants is reasonable because it would enable the complainants to be contacted and asked if they consent to the disclosure of their personal information. The applicant contends that the respondent cannot decide whether to disclose the information until the complainants are asked whether they would consent. He says that whether they object to disclosure is not known because they have not been asked. I reject that argument because the information was provided on the basis that it would be kept confidential and it has not been disclosed to the public by the complainants or anyone else. There was no evidence that suggested that any of the complainants had disclosed publicly any of the subject information or that they consented to its disclosure.
The applicant also says that disclosure of information about bastardisation at Duntroon would enable the issue to be discussed and evaluated with a view to elimination of such behaviour. This is a public interest argument. The Guidelines say at 6.138 that the test of unreasonableness implies a need to balance the public interest in disclosure of government-held information and the private interest in the privacy of individuals.
There is already significant disclosure of information relating to allegations of bastardisation at Duntroon. The final report from DART dated March 2016 recorded the assessments of complaints and the payment of reparation. I consider that the extent of the current disclosure is sufficient to allow further discussion and investigation for the meritorious purposes outlined by the applicant. However, if personal details of complainants were disclosed then the privacy of these third parties would be breached and there would be a risk that other complainants in similar circumstances would not come forward. Hence, it would have the opposite effect to that which the applicant contends. If the personal details of complainants are disclosed, there would be a real risk of causing stress to those third party complainants. Unless and until those complainants, who provided sensitive and personal information on a confidential basis, indicate that their personal information can be disclosed, it should remain confidential. The applicant has no authority to speak on their behalf. Indeed, the applicant accepts that the identity of the authors of the documents in question should not be released against their wishes.[5] The applicant suggests that the complainants should be asked if they consent but an approach of that nature may of itself cause stress. If the names of the complainants were released to the applicant then that would itself be a breach of their privacy.
[5] Applicant’s SOFIC at [84].
I reject the applicant’s contention that his request for access to the complainants’ documents gives rise to an implied obligation upon the respondent to consult with the complainants as to whether they consent to disclosure. The applicant relies upon s 27A which provides a mechanism to protect the privacy of third parties. It requires consultation if an agency proposes to grant access to a document. It has no application in this case where the agency did not recommend granting access in the first place.
Adverse effect of disclosure for operations of an agency – s 47E(d)
Section 47E(d) provides that a document is conditionally exempt if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency. The respondent contends that the disclosure sought by the applicant would have a substantial adverse effect on the operations of the respondent. Particularly, it would have a negative impact on the administration of the Defence Force Ombudsman’s functions in relation to the defence abuse response program.
I consider that the ongoing maintenance of confidentiality is critical to the effective management of the defence abuse response program. Individuals may be discouraged from participating in meaningful engagement with the respondent if the documents sought were disclosed. A failure to protect confidentiality would undermine the reputation of, and the trust in, the respondent. The operations of the respondent would be compromised.
I accept the contentions of the respondent and find that disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of the respondent.
Public interest test
Section 11A(5) provides that access to a conditionally exempt document must be granted unless access to the document would, on balance, be contrary to the public interest.
The applicant contends that the public interest weighs in favour of disclosure because it would promote the objects of the Freedom of Information Act and would inform debate, as well as benefit academic research in a matter of public importance. Additionally, the applicant says that disclosure would support both a further claim for reparation and a civil claim that he intends to make.
In my opinion, the factors in favour of disclosure are outweighed by the public interest factors against disclosure as follows.
The information sought by the applicant is the subject of an express obligation of confidentiality and the nature of the information is highly sensitive. It would likely cause great stress to the complainants involved if it were disclosed. If the obligation of confidentiality were breached, then that would undermine the ability of the respondent to obtain similar information or other confidential information in the future.
I do not accept that debate and academic research would be stifled in circumstances where there has already been considerable disclosure of information relating to abuse of defence personnel and more particularly abuse at Duntroon. I note, but place little weight on, the written evidence of Associate Professor Ben Wadham, a former soldier and academic at Flinders University, who was not available for cross examination. His evidence was to the effect that transparency through the Freedom of Information process is important to his academic research on the ongoing effects of defence abuse on the lives of victims.
Further, I reject the applicant’s particular contention that he needs the subject information to make further claims. Any such claims would be determined on their merits by a consideration of conduct particular to the applicant himself. Regardless, there is ample evidence of abuse at a more general level which the applicant can rely upon without invading the privacy of complainants who provided their information on a confidential basis.
Conclusion
The Tribunal finds that the information sought by the applicant is conditionally exempt under ss 47E(d) and 47F and that its disclosure would be contrary to the public interest. The decision under review is affirmed.
49. I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
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Associate
Dated: 26 July 2021
Dates of hearing: 13 May 2021 Representative for the Applicant: Self-represented Advocate for the Respondent: C. Graves Solicitors for the Respondent: MinterEllison
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