Kristoffersen and Centrelink
[2004] AATA 689
•30 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 689
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/112
GENERAL ADMINISTRATIVE DIVISION ) Re KURT KRISTOFFERSEN Applicant
And
CENTRELINK
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date30 June 2004
PlaceBrisbane
Decision The Tribunal varies the decision under review by releasing to the applicant folio 431 of Newstart Volume 2 with the exception of material exempted pursuant to section 41(1) of the Act. In all other respects, the decision under review is affirmed.
...................[Sgd]......................
J Cowdroy
Member
CATCHWORDS
FREEDOM OF INFORMATION – access to documents – exemptions – claimed exemptions in relation to documents affecting enforcement of law and protection of public safety, certain operations of agencies, personal privacy and documents which do not exist - whether exemptions properly claimed – decision varied
Freedom of Information Act 1982 ss 22(1), 24A, 37, 40, 41
Re Colakovski and Australian Telecommunications Corporation (1990) 100 ALR 111
REASONS FOR DECISION
30 June 2004 Ms J Cowdroy, Member 1. This decision relates to review of a decision of an officer of the Freedom of Information & Privacy Unit of Centrelink dated 20 November 2002 and affirmed on review. The decision refused Mr Kristoffersen access to documents or provided some documents with exemptions pursuant to the Freedom of Information Act 1982 (“the Act”).
2. A hearing in respect to a number of matters was conducted on 12 November 2003 and 22 March 2004 in Maroochydore. Mr Kristoffersen appeared and gave evidence. Ms Wallis-Dunn appeared for the respondent. Before the Tribunal were the T-documents, lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and other documents, relevant to this application and the applicant’s other application (Q2003/80), were taken into evidence as follows:
Exhibit 1T documents for Q2003/80
Exhibit 2T documents for Q2003/112
Exhibit 3 Copy of bank statement
Exhibit 4Letter to Ms Bernadette Grills dated 1 October 2002
Exhibit 5 Letter from Mr Gibbons dated 11 December 2002
Exhibit 6Letter from Mr Gilfeder dated 3 October 2002
Exhibit 7 Letter from Mr Kristoffersen to Centrelink dated 4 December 2002
Exhibit 8Documents provided by applicant headed, “The Alleged Debt of $366.20”
Exhibit 9Documents provided by applicant in relation to “The Cancellation of Rent Assistance”
Exhibit 10 Document provided by respondent in relation to Rent Assistance
3. The background to the matter may be summarized as follows. The applicant, in a letter dated 10 October 2002, sought access
“to all documents held by your department, in regard to myself and any correspondence and authorizations made by Centrelink on or because of my behalf and situations. This includes the whole file and all other documents that have been sent to all other government departments and agencies, of, private companies, not for profit organizations, private individuals, educational institutions and all correspondence from such departments and agencies of, private companies, private individuals, educational institutions and not for profit organizations.”
4. Subsequently the applicant sought access to documents relating to an investigation carried out by Mr Don Ross, as well as the ability to hear all audible recorded information. He also sought documents authored by Beth Price and Ronald Morton forwarded to the Department of Employment, Workplace Relations and Small Business (“DEWSRB”), Employment National and BAVE (an employment provider). He sought the documents in relation to a claim for breach of confidentiality.
5. Mr Kristoffersen received copies of some information with deletions. In relation to other documents sought, the respondent contended that they were exempt documents or he was refused access on the basis that the documents sought could not be identified, could not be located or no longer exist.
The Legislation
6. Section 22(1) relates to deletion of exempt matter or irrelevant material. It states:
“Where:
(a) an agency or Minister decides:
(i) not to grant a request for access to a document on the ground that it is an exempt document; or
(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i) would not be an exempt document; and
(ii) would not disclose such information; and
(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.”
7. Access to a document may be refused under section 24A of the Act if all reasonable steps have been taken to find the document and the agency or Minister is satisfied that the document is in the agency’s or Minister’s possession but cannot be found or does not exist.
8. In determining documents to be exempt documents, the respondent relied on the following subsections:
“Documents affecting enforcement of law and protection of public safety
37(1)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) …
(b)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; or
(c) endanger the life or physical safety of any person.
…
Documents concerning certain operations of agencies
40(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;
(b)prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;
(c)have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;
(d)have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or
(e)have a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations
(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.
…
Documents affecting personal privacy
41(1)A document is not an exempt document if its disclosure under this act would involve the unreasonable disclosure of personal information about any person (including a deceased person).”
Evidence
9. Mr Lesley Donald Ferguson, FOI & Privacy Officer with Centrelink, called by the respondent, was responsible for processing the FOI request. He arranged for searches at various Centrelink locations, including the Business Integrity Section and the Service Recovery Section.
10. The respondent submitted that it had taken all reasonable steps to locate documents falling within the scope of the applicant’s request. It was contended that information not disclosed pursuant to section 41(1) of the Act was “personal information” about Ms Grills and other individuals.
11. In relation to the decision to classify some documents as exempt pursuant to sections 37(1)(c) and 40(1) of the Act, Mr Ferguson relied on information that there had been a history of threats and abuse by the applicant to Centrelink staff. He could not recall whether the information about this aspect was in verbal or oral form. He recalled seeing some written information in relation to a ban on the applicant visiting Centrelink offices. Neither Ron Morton nor Beth Pride were involved in conducting searches for the documents sought by the applicant.
12. The applicant’s case is that the search which was conducted was inadequate and that insufficient explanation had been given in relation to documents which were not able to be located. He submitted that documents had been deliberately removed by Centrelink officers, who had conducted a personal vendetta against him and his family for many years, affecting his family relationships and his livelihood.
13. The exemptions made under section 37(1) and 40(1) were inappropriate. The applicant was offended at the suggestion that he had made threats and sought the production of evidence to support this contention. He considered that Mr Ferguson had unduly relied on the personal views of Centrelink officers in classifying some of the documents as exempt.
Findings and Consideration
14. The exemption to disclosure of documents under section 41(1) relates to the “unreasonable disclosure of personal information about any person”. The term “personal information” is defined in section 4 of the Act.
15. In the matter of Re Colakovski and Australian Telecommunications Corporation (1990) 100 ALR 111, the Tribunal determined that the name and telephone number of a person was “information relating to the personal affairs” of that person.
16. The Tribunal examined each of the documents in respect of which either exemption was claimed or deletions were made. It notes that many of the exempt documents relate to Centrelink dealings with, or in connection with, Ms Grills affairs with that agency. Other exemptions and deletions related to information such as names and addresses of individuals which is appropriately classified as “personal information” pursuant to section 41(1) of the Act. The respondent has an obligation to protect the confidentiality of personal information held about individuals and the Tribunal is satisfied that such exemptions and deletions were properly made.
17. In respect to the deletions claimed under section 40(1), these relate to information about the identity and contact details of officers of Centrelink and other administrative agencies in administering social security law. Some of the exempt material relates to the names of Centrelink officers who accessed the applicant’s computer records. The release of such information would impact on the efficient conduct of that agency and the Tribunal was satisfied that there was no public interest in releasing such information to the applicant.
18. In any event, the Tribunal notes that in many cases, the surnames and direct telephone numbers of agency staff have been deleted whereas the Christian names remain. Quite apart from the respondent’s concerns about the applicant’s reaction to the release of such names, it seems that the applicant would have little interest in being provided with such information, given that much of it dates back many years.
19. In relation to the material which the applicant claims exists but which has been mislaid, lost or deliberately withheld, this Tribunal had no evidence before it that documents which the applicant seeks ever existed. It has been acknowledged that a number of investigations folders, identified as Folders A, B, C, E, F, G, M, N, R, S and V had existed, however it was thought that much of the material contained in those folders was placed in the applicant’s Newstart Allowance files. The applicant’s belief that other material exists in the Federal Court of Australia files is not material which the agency has in its possession. The Tribunal is satisfied that all reasonable steps have been taken to comply with the applicant’s request and that he has been given access to all the documents which relate to his request.
20. The only document which the Tribunal considered should be released to the applicant in altered form is folio 431 of Newstart Volume 2. That document was released to the applicant with deletions pursuant to sections 37(1)(c) and 40(1). The Tribunal did not consider that the requirements of section 40(1) were met in that the exempt portions of that document could not reasonably be expected to adversely substantially affect the proper and efficient conduct of the operations of Centrelink. Neither was it persuaded that the disclosure of information in that document would endanger the life or physical safety of any person. It does consider, however, that the personal information under the words “Inspector Eyrie” is exempt under section 41(1) of the Act.
21. In respect to the request for access to documents relating to the investigation by Mr Don Ross, Business Manager, Area Brisbane, Centrelink, the Tribunal is satisfied that no documents exist in relation to any investigation by Mr Ross. The request arose because of certain comments made by Mr Ross in a letter addressed to Mr Kristoffersen dated 26 June 2002. In that letter Mr Ross replied to concerns raised by the applicant in relation to possible breaches of privacy/confidentiality and misconduct by Centrelink staff. He stated relevantly:
“This matter has been fully investigated. I have found no evidence that any unauthorized access to your record or any unauthorized release of your details has taken place by Centrelink staff.”
22. The applicant inferred from the words “fully investigated” and “I have found no evidence” that Mr Ross had carried out an independent investigation into his complaint. It appears that such was not the case and while he apparently reviewed the evidence, he did not make any notation as to his findings. Such a situation does not instill public confidence in the review process. However, the Tribunal is satisfied that no documents exist in relation to this part of the applicant’s request.
Decision
23. Accordingly, the Tribunal varies the decision under review by releasing to the applicant folio 431 of Newstart Volume 2 with the exception of material exempted pursuant to section 41(1). In all other respects, the decision under review is affirmed.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: Sarah Oliver
AssociateDates of Hearing 12 November 2003 and 22 March 2004
Date of Decision 30 June 2004
The Applicant appeared in person
For the Respondent Ms Wallis-Dunn, Departmental Advocate
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