Kristoffersen and Department of Employment, Workplace Relations and Small Business

[2001] AATA 414

DECISION AND REASONS FOR DECISION [2001] AATA 414

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/912 

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      KURT KRISTOFFERSEN
  Applicant
           And    DEPARTMENT OF EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS  
  Respondent

DECISION

Tribunal        Mr K L Beddoe (Senior Member)           

Date17 May 2001

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution decides that: (a) the decision to refuse access to documents folios 35 (32), 38 (35), 39 (36), and (67) is affirmed, (b) documents folio 40 (37/72) be released to the applicant after personal information identifying contributors be deleted under section 22(1) of the Act, and (c) document folio 34 be released to the applicant after deleting in accordance with section 22(1) of the Act all material other than the heading, Summary of Activities twice appearing and the material included under the heading "Summary of Activities".      
   (Sgd)  KL Beddoe
  Senior Member

CATCHWORDS
FREEDOM OF INFORMATION – Documents containing materials obtained in confidence – Documents relating to applicant's application for New Enterprise Incentive Scheme – whether documents exempt under sections 41 and 45

Freedom of Information Act 1982 – s 4, 18(2), 41, 45, 63
Administrative Appeals Tribunal Act 1975 – s 29(1), 35(2)
Employment Services Act 1994 - s 4, 49, 58

Colakovski and Australian Telecommunications Corporation (1991) 100 ALR 111
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Re Pfizer Pty Ltd and Another and Department of Health, Housing and Community Services (1993) 30 ALD 647
"Waj" v Commonwealth Ombudsman and Grace Rosemary Brown (AAT 13004, 22 June 1998)

REASONS FOR DECISION

17 May 2001

Mr K L Beddoe (Senior Member)

1. On 23 December 1999, the respondent, the Department of Employment, Workplace Relations and Small Business ("DEWSRB") refused the applicant access to documents under the Freedom of Information Act 1982 ("the Act").  On the 23 August 2000 that decision was upheld on internal review.  The applicant sought a review of the decision to refuse access.

1. The primary issue is whether the documents, to which the applicant sought access, are exempt under sections 41 or 45 of the Act. The respondent did not proceed with an earlier reliance on section 43 of the Act.

1. Section 41(1) provides that a document is an exempt document if its disclosure under the Act would involve the unreasonable disclosure of personal information about any person (including a deceased person). Section 41(2) makes it clear that the former provision is not invoked merely because of the inclusion in the document of matter relating to that person.

1. Section 4 of the Act states that "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;

1. Section 45(1) provides that a document is an exempt document if its disclosure under the Act would found an action, by a person other than the Commonwealth, for breach of confidence.

1. Section 22(1)(b) allows information to be deleted from a copy of an otherwise exempt document so that the copy is not an exempt document and so that it does not disclose irrelevant information.

1. At the hearing the applicant represented himself. Miss Campbell appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") were before the Tribunal. Documents T8 to T15 of these T documents were subject to a confidentiality order under section 35(2) of the Administrative Appeals Tribunal Act 1975 ("AAT Act"). The applicant gave oral evidence. Affidavits by the respondent's officers - Richard Sara (marked Exhibits 1-3) and Pat Faget (marked Exhibits 4 and 5) and an affidavit, the subject of an order under section 35 of the AAT Act (marked Exhibit 6) were also before the Tribunal.

1. The applicant applied for a grant under the New Enterprise Incentive Scheme ("NEIS") on 16 August1998 but was unsuccessful.  NEIS is a service established by the respondent to help unemployed people establish and run viable new small businesses.  These private sector bodies or Job Network ("JN") bodies contract with the respondent to select and train those job seekers with the most viable business ideas. 

1. The JN bodies hold information provided by the applicant or signed by them and that information is available to the job seeker on request. Any sensitive medical information not provided by the job seeker or documents containing third party information cannot be provided by the JN body, but is forwarded to the respondent so that the information can be dealt with under the provisions of the Act.

10. The applicant applied to the employment provider BAVE Pty Ltd ("BAVE") for a position on this program.  BAVE has since gone into liquidation.  Some of its surviving records are now held by the respondent.

11. On 28 July 1999, the applicant applied to the respondent under the Act for all information held regarding him and his NEIS preliminary training application. His freedom of information application became valid on 30 August 1999, when the relevant fees were paid. Documents within the scope of the request as defined at a telephone directions hearing on 21 November 2000, were provided to the applicant except those for which exemptions were sought. The scope included all documents regarding the applicant's NEIS application and all documents referencing the applicant. The relevant documents are listed in Attachment A to document T31. That document is headed "Internal Review of Schedule of Documents".

12. The following documents are the subject of the application for review:

(a)      File No. RQ99/00627
 Number        Date    Description     Exemption/s Claimed

1. created 16/4/99 folio 34 - statement made by a third party s 41(1); s 45(1)

2. created 14/4/99 folio 35 - statement made by a third party s 41(1); s 45(1)

3. created 14/4/99 folio 38 - statement made by a third party s 41(1); s 45(1)

4. undated folio 39 - statement made by a third party s 41(1); s 45(1)

5. undated folio 40 - details of activities undertaken by CBC NEIC Training Centre – Maroochydore Partial release – exemptions s 41(1); s 45(1)

Access to certain other documents was refused on the grounds that they were outside the scope of the request.

(b)      Manila folder – BAVE file- K. Kristoffersen – NEIS
 Number        Date    Description     Exemption/s Claimed

1. created 26/8/98 Folio 15 – third party information s 41(1)

2. created 16/4/99 folio 30 - statement made by a third party s 41(1); s 45(1)

3. created 14/4/99 folio 32 - statement made by a third party s 41(1); s 45(1)

4. created 14/4/99 folio 35 - statement made by a third party s 41(1); s 45(1)

5. undated folio 36 - statement made by a third party s 41(1); s 45(1)

6. undated folio 37 - details of activities undertaken by CBC NEIC Training Centre – Maroochydore Partial release – exemptions s 41(1); s 5(1)

7. 4/6/99 folio 43 - File note re K Kristoffersen s 41(1); s 45(1)

8. 4/6/99 folio 67 – statement made by a third party s 41(1); s 45(1)

9. Undated folio 72 - details of activities undertaken by CBC NEIC Training Centre – Maroochydore Partial release – exemptions s 41(1); s 45(1)

10. 18/8/98 folio 77 – document by R Richards Partial release – exemptions s 41(1); s 45(1)

Access to certain other documents was refused on the grounds that they were outside the scope of the request.

1. Documents referenced folios 34, 35, 38, 39 and 40 on File No. RQ99/00627 are the same documents referenced as folios 30, 32, 35, 36, and 37 under the heading 'Manila folder – BAVE file – K Kristoffersen – NEIS'.   Folio 72 of the latter documents appears to be the same as document folio 37 in that same list as well as the same as document listed as folio 40 from File No. RQ99/00627.
   The Applicant's Submissions

2. The applicant advised that his first application for a preliminary training course with BAVE was not included in the section 37 documents. He also stated that he should be provided with the service agreement between BAVE and DEWSRB. As it was common knowledge that BAVE was the contract holder at the time, it was submitted that this request was not unreasonable.

1. Further, he stated that any documents relating to notes on, or proof of, an investigation by Mr Bob Bunnett, Manager of the Customer Service Line (complaints section) of DEWRSB of a complaint made by the applicant against certain DEWRSB staff be provided to him.  He also sought access to a letter written by Mr Bunnett which was not identified by date.

1. In support of his argument, the applicant submitted that Tony Hobson (former BAVE General Manager), in a letter dated 29 November 1999 to the applicant, advised him that he would receive the information as requested.

1. As he already knew the identities of several of the authors of documents, the applicant argued that not revealing their identities was irrelevant.  Further, as BAVE no longer existed, the former employees would have difficulty in feeling harassed in their workplace.

1. The applicant submitted that the term "personal information" was, with regard to this matter, used out of context.  The applicant argued that personal information is not information generated for the purpose of assessing an application for educational training.

1. Further, he argued that BAVE was an "eligible case manager" within the meaning of s 4 of the Act and thus s 41(1) of the Act was not applicable. On this basis it would be sections 41(2) and 41(3) which applied to deny the exemptions claimed. In support of this proposition, he maintained that the authors of the exempt documents were professional government employees acting within their chosen professions. In this case, it was submitted, section 8, requiring information regarding an agency to be published and section 9 of the Act, allowing procedural documents of an agency to be available for inspection and purchase would also operate to deny the claimed exemptions.

1. The applicant further argued against the application of section 45(1). He submitted that section 45(2), which did not exempt documents prepared by a Minister, a member of a Minister's staff or an officer or employee of an agency in the course of his duties, made application of section 45(1) not applicable.

the respondent's submissions

1. The respondent advised that NEIS employment service providers are private sector bodies that have a contract with the respondent to offer this service.  The respondent submitted that these bodies are not "eligible case managers" as defined in the Act at section 4 and therefore are not subject to the Act.

1. Mr Sara stated (Exhibit 3, paragraph 11) that the respondent does not hold files on NEIS applicants until they are approved by a NEIS provider and finally endorsed by the respondent.   In this case, the employment provider, BAVE, had not accepted the applicant to participate in the NEIS program.  Hence, the applicant had no file with the respondent with respect to his application.  However, the respondent held BAVE documents relating to the applicant after BAVE went into liquidation on 6 July 2000.

1. Mr Richard Sara, called by the respondent, stated in his affidavit (Exhibit 2, paragraph 2) that he commenced processing the FOI request on 30 August 1999 after receipt of the application fee.  Searches were made by the respondent's staff and all relevant documents referring to the applicant, except those for which exemptions were claimed, were provided to the applicant.

1. The respondent submitted that it had taken all reasonable steps to find documents falling within the scope of the Applicant's request. It was argued that the information withheld from disclosure was exempt under subsection 41(1) because the documents for which the exemption was claimed contained personal information about both the applicant and the authors of the statements. The respondent submitted that the information contained in the statements was "personal information" within the meaning of the Act.

1. The respondent argued that in some instances this personal information was inextricably inter-woven and it would not be possible to separate the information about the applicant from that of the author.  It was submitted that if this information was released, the applicant would be able to identify the author of the statement, particularly where circumstances are described where both the applicant and author are present.

1. The respondent referred to Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257.  The respondent submitted that although public interest considerations lie at the core of the expression "unreasonable", that case determined that all the circumstances of the situation be considered to determine what was reasonable.  The right of the applicant to have access to information about himself should be balanced against the rights of individuals whose privacy would be unreasonably interfered with if disclosure were to occur. 

1. In support of this contention, the respondent submitted that the information contained in the exempt documents comprised information that would identify the authors.  The information was obtained as a result of a complaint made by the applicant to the respondent concerning the conduct of various employees of BAVE.  The persons concerned have objected to disclosure and have given good reason for their concern that the applicant not discover their identities. 

1. It was submitted that the knowledge of the identities of the persons who made the statements about him has no current relevance to any application that the applicant might wish to make to the respondent to further his claim for an allowance under the NEIS.  The respondent submitted that there should be no disclosure of an individual's personal information without their consent or implied consent.

1. Finally, it was submitted that should the applicant discover the identities of the authors, there was a real likelihood that they would be harassed by the applicant.  His knowledge of their identities could not assist him in any way in his applications before the respondent or any other government agency.  For these reasons, it was submitted that the public interest in this matter would be best served by non-disclosure.

reasons for decision

1. Section 4 of the Act defines an "eligible case manager" to be an entity (within the meaning of the Employment Services Act 1994. I do not have enough information to decide whether BAVE was or was not an "eligible case manager".  However, as the decision in this matter does not turn on that point I will not deal with it further.

1. The exemption to disclosure of documents, under s 41(1), relates to the "unreasonable disclosure of personal information about any person".

1. Section 4 provides the definition of "personal information" for the purposes of the Act. This term has been discussed in several cases in the Tribunal and in the Federal Court including Cook and Comcare (1996) 23 AAR 19, Re Pfizer Pty Ltd and Another and Department of Health, Housing and Community Services (1993) 30 ALD 647 and Colakovsi and Australian Telecommunications Corporation (1990) 100 ALR 111 (a case dealing with section 41 as previously enacted).

1. In Colakovski, the Tribunal considered whether the name and telephone number of a person were "information relating to the personal affairs" of that person (under the pre 1991 amended s 41(1)) and found it to be so. In Re Pfizer, it was decided that "personal information" was a wider concept than "information relating to the personal affairs" (at 663). However, both decisions regarded identity as falling within the scope of section 41. (Re Pfizer at page 663, Colakovski at page 119).

1. In this case the exemptions are claimed on the basis that information regarding the identity of persons other than the applicant is apparent or reasonably ascertainable from the information or opinion included in the document and the disclosure of that information would be unreasonable.

1. It is clear that the information contained in the documents referred to as folios 34 (30), 35 (32), 38 (35), 39 (36), 40 (37/72) and (67) contain information or opinion about the applicant and information about the authors.  Such information would not only reveal the identity of the authors, but also identify others, as well as reveal the personal reasons for creation of the documents.  As such, it is "personal information".

1. "Unreasonable disclosure" of such information is gauged from the circumstances and against considerations of public interest (Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at p N259 per Deputy President Hall).  Circumstances include the nature of the information, the issue of consent and the current relevance of the material.  Public policy considerations include consideration of the personal privacy of third parties.

1. In Colakovski (at page 123, line 30), Heerey J stated:

"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 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 enure 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."

1. In this matter, all documents were made available on the explicit understanding that they would remain a confidential document, used only within and by BAVE or the respondent depending on who requested it.  The Tribunal accepts that 'disclosure would be likely to cause embarrassment or distress to the persons referred to therein' ("Waj" v Commonwealth Ombudsman and Grace Rosemary Brown (AAT 13004, 22 June 1998) at para 52).

1. Here the Tribunal finds that the public interest in maintaining the personal privacy of the individuals referred to in the documents referred to as folios 34 (30), 35 (32), 38 (35), 39 (36) and 40 (37/72) outweighs any public interest in disclosure.   However, folio 40 (37) also contains a general chronology of events headed "Summary of Activities" and "In Conclusion" relating to the applicant's application for the NEIS. This information includes personal information with respect to the applicant and should be released to him. The balance of the document is exempt under section 41 and/or section 45.

1. I have considered the exemptions claimed under s 45(1) of the Act. As submitted by the respondent, the criteria to be considered in deciding whether the disclosure of a document would found an action for breach of confidence (by a person other than the Commonwealth) is as explained by Gummow J. in Corrs Pavey Whiting and Byrne and Collector of Customs (1987) 13 ALD 254. This criteria was accepted by the Tribunal in Kamminga and ANU (1992) 26 ALD 585 at 592-4. The criteria and the Tribunal's consideration of these criteria with regard to this matter are as follows:

(a)      Could the applicant, identify with specificity the information in question?

The Tribunal has sighted all documents in question.  The Tribunal notes that the information is specific and identifies occasions on which the allegedly confidential matter was discussed.

(b)      Does the information have the necessary quality of confidentiality?

The contents of all but document folio 34 are not known to anyone other than the authors and the respondent. Document folio 34 has not been released to the applicant. However, it relates details of and is a record of events in which the applicant participated. In my opinion such a document in so far as it records a telephone conversation between the applicant and another person is not exempt within the terms of section 45. In so far as it records another conversation which does have the quality of confidentiality it is exempt as to that part.

(c)Was the information received by the respondent in such circumstances as to import an obligation of confidence?

Here each author provided information after receiving confirmation by BAVE or DEWRSB officers that the information would be treated as confidential.  In addition, the authors have indicated in the documents that the information would not have been supplied otherwise.  Although BAVE does not now exist, the documents and people involved remain, as does the obligation of confidentiality.  That the respondent has acknowledged its obligation to maintain that obligation is evidenced by its approaches to the people concerned, seeking permission to publish the information.  Exemptions are claimed for the documents where permission has been refused.

(d)      Is there actual or threatened misuse of the information?

In Re Kamminga (at 593) it was held that '[t]he disclosure of the reports subject to an obligation of confidentiality would itself be misuse.'.  The Tribunal accepts that this is applicable to the current matter.

(e)Would there be a detriment to the people concerned if the documents were disclosed?

This element was considered in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 48. The Tribunal does decide whether or not this is a requirement in this matter except in relation to that portion of document 34 which does not have the necessary quality of confidentiality. That part of document 34 is a report of a telephone conversation between the applicant and a NEIS Business Consultant. I can see nothing in the material before me which may result in a detriment to the author by the release of the relevant part of document 34. I am satisfied that detriment may result if the balance of document 34 or any of the other documents were released but I am unable to say on the material whether a detriment would result.

decision

1. I am satisfied that sections 41(1) and/or 45(1) applies to documents folios 34 (in part), (30), 35 (32), 38 (35), 39 (36) and (67). I am also satisfied that section 41(1) applies in part to document folio 40 (37). Therefore, the Tribunal sets aside the decision under review and in substitution decides that;

(a)the decision to refuse access to documents folios, 35 (32), 38 (35), 39 (36), and (67) is affirmed, 

(b)documents folio 40 (37/72) be released to the applicant after personal information identifying contributors be deleted under section 22(1) of the Act, and

(c)document folio 34 be released t the applicant after deleting in accordance with section 22(1) of the Act all material other than the heading, Summary of Activities twice appearing and the material included under the heading "Summary of Activities".

1. The Tribunal is not satisfied that document folio 34 (30) is exempt under section 45(1) but as the Tribunal has decided it is an exempt document under section 41(1), that does not affect the decision to refuse access to that document.

   I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

   Signed:         Teri Shea
     Associate

   Date/s of Hearing  12 February 2001
   Date of Decision  17 May 2001      
   For the Applicant  In Person
   Counsel for the Respondent    Miss Campbell
   Solicitor for the Respondent    Ms McNeilly