Lever and Australian Federal Police (Freedom of information)

[2017] AATA 1407

Lever and Australian Federal Police (Freedom of information) [2017] AATA 1407 (22 August 2017)

Division:FREEDOM OF INFORMATION 

File Number(s):      2015/2510

Re:Ron Lever 

APPLICANT

Australian Federal PoliceAnd  

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment  

Date:22 August 2017  

Place:Sydney

The Tribunal decides:

(a) In relation to Folio 6, the decision is set aside and substituted with a decision that the Folio is not an exempt document under s 47F of the Freedom of Information         Act 1982, to the extent of the material in yellow on the confidential copy of the          Folio.

(b)       In all other respects, the decision is affirmed.

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

Deputy President B W Rayment

Catchwords

FREEDOM OF INFORMATION — request for access to documents — scope of documents sought under freedom of information request — ‘personal information’ — whether disclosure would involve the unreasonable disclosure of personal information — whether disclosure would be contrary to the public interest — whether disclosure would disclose information irrelevant to request — whether all reasonable steps taken to find documents — decision varied

Legislation

Freedom of Information Act 1982, ss 3, 11, 15, 24, 24AA, 24AB, 47F, 54W, 61, 93A

Privacy Act 1988, s 4(1)

Cases

Chu v Telstra Corporation Limited [2005] FCA 1730

Secondary Materials

Guidelines issued by the Information Commissioner under s 93A of the Freedom of Information Act 1982

REASONS FOR DECISION

Deputy President B W Rayment

22 August 2017

BACKGROUND

1. On 4 June 2011 the applicant made a request under the Freedom of Information Act 1982 (Cth) (the FOI Act) in the following terms:

   I wish to make a follow up request for documents that pertain to the AFP protection incident report 20 October 2004.

   1Agreements between ANSTO and Australian Federal Police Protective Services re the protection of ANSTO and production/reporting of Protection Incidents.

   2All formatted procedures and guidelines re the production and recording of Protection Incident Reports and their associated documents. Including but not limited to

   (a)How are they recorded (internally what documents are created aside from the PI reports)

   (b)Where are these documents recorded/registered/stored

   3How are these documents stored, including but not limited to

   (a)What records are kept

   (b)Who keeps the records (at the various points in time)

   (c)What documents are archived

   (d)When are the documents archived

   (e)When are they destroyed (procedure)

   4Formal Methods of Communication between AFFPS and ANSTO including but not limited to

   (a)What document types are emailed

   (b)What document types are hand delivered

   (c)What other methods of document exchange/delivery are there?

   (d)What records are kept about how a document was delivered

   (e)Records of who the document was delivered to?

   (f)Common file storage areas (electronic File server, or paper documents)

   (g)What records are kept re the exchange of documents

   (h)Are the PI reports signed for?

   (i)How is this process audited?

   5Does the records department hold any occurrence sheets (written or type) for a period prior and or subsequent to 18-30 October 2004?

   I have recently discovered that aside from Mr Dyer and Mr Cartwright an Ms Aroha Charwick was also involved in my matters.

   6I would like copies of all correspondence involving Ms Chadwick re the Protection Incident report, ANSTO and my matters generally. I understand there are correspondence/documents exchanged between Ms Chadwick and the Australian Government Solicitor (AGS).

   7 Professional Standards investigation report CRAM: 1841 PROMIS PRS 48292.

   SCOPE

2. One issue which arises in these proceedings is the proper scope of documents sought under that request.   The parties are in dispute about that matter in that the respondent took a more restricted view of the scope of the request and the applicant asserts a view which, if correct, would require the decisions made by the respondent to be set aside.

3. Mr Lever submits that the sentence “I wish to make a follow up request for documents that pertain to the AFP protection incident report 20 October 2004” involves or amounts to a repetition of his earlier request under the FOI Act and also involves that his written request extends to all documents relevant to each of the numbered items in the request of 4 June 2011, or perhaps such of them as do not involve questions.

4. The respondent submits that the sentence referred to is properly to be construed as an introductory remark, not as a request for any document, and not as a repetition of the earlier request, and that the scope of the request is not to be understood as if the words “all documents relevant to …” appeared before any of the numbered items.

5. The earlier freedom of information (FOI) request made by Mr Lever to which the subject request was a “follow-up” was dated 1 February 2011.  It annexed a Summons to Produce Documents dated 12 May 2006 and is addressed to the Proper Officer, Australian Federal Police, for the production of the following books, documents or things:

   1All Documents relating to Protection Incident Report (Incident No 58/04,O/E Reference 184/04, Location ANSTO) (“the Report”) including, but not limited to; the original Report; any contemporaneous or other notes or documents from which the Report was prepared; any records of communications, whether verbal or in writing, at any time with ANSTO or its officers, including but not limited to Mr Eric Ryan, in relation to the Report; correspondence, file notes, memoranda, records of telephone conversations, and any other documents in relation to the Report.

   2All Documents relating to or showing communications between any officers of the AFP any officers of ANSTO, including but not limited to Mr Eric Ryan, in relation to any site or building access restrictions imposed upon the ANSTO employees [Ms J] and/or Ronald Lever over the period 14 September 2004 to 6 January 2005 inclusive.

   Definitions

   “Documents” includes all documents, whether in paper or electronic format and     includes emails, letters, faxes, file notes and memoranda.

6. The request of 1 February 2004 was in the following terms:

   To whom it may concern,

   I would like to make a freedom of Information request for certain Australian Federal Police Protective Service (AFPPS) documents.

   These documents were summoned to be produced in proceedings in 2006, these documents were not produced and nor did the AFPPS claim privilege on any of these documents (listed below).

   I was aware documents of this nature must exist given the AFPPS processes.

   I have made a formal complaint to AFP Professional standards re the AFPPS failure to properly produce. A copy of the summons to produce is attached.

   The documents I am seeking are described in the summons to produce. At a minimum I would like a copy of

   1AFP Protective service ANSTO station occurrence sheet for the period 18-31 October 2004.

   A copy of this document is currently held by AFP professional standards contact details are Jason Constable FEDERAL AGENT PROFESSIONAL STANDARDS … I understand this is a typed copy of the original document which is hand written.

   I would like a copy of the original hand written copy of this document. Given the age of the document I believe the handwritten copy would be held by your records department.

   As these documents are records of incidents there may be sensitive data contained in these documents; I am happy for the sensitive information to be blacked out. However I still need to see in general terms what the recorded incidents are about.

   2Log Book specifically the pages that relate to the period 18-31 October 2004.

   3Email communications between AFPPS officers and ANSTO specifically the ANSTO Security Adviser (ASA) Mr Ryan and or Mr Davies ANSTO Industrial Adviser (AIA) for the period 18-31 October 2004.

   4Email communications between AFPPS officers and ANSTO specifically the ANSTO Security Adviser (ASA) Mr Ryan and or Mr Davies ANSTO Industrial Adviser (AIA) at any time up to November 2009 re the alleged AFPPS Protection Incident Report dated the 20 October 2004.

7. The AFP responded to the request of 1 February 2011 on 2 March 2011 by a decision dealing only with the numbered paragraphs of the request, and treating it as if it did not ask for the documents described in the notice to produce.  Mr Lever was provided with an edited copy, modified by deletions, of four pages of documents. Those documents are part of Exhibit A4 in these proceedings.  The decision of 2 March 2011 is not within this review.  I would not have read the decision on the first request as dealing adequately with the first request.  In particular, the decision does not suggest that the request for “documents described in the summons to produce” was attended to.

8. Section 15 of the FOI Act requires that the request must be in writing. A request may be revised under s 24AB, but only by written notice: see s 24AB(6). As happened in this case, persons searching, reviewers or decision makers might need to construe the request and would be expected to turn to its written form to determine its scope. It should not be construed narrowly or pedantically, but what falls for construction is the writing which constitutes the request.

9. The request having been made in writing as required by the statute, and never having been modified by written notice, it seems to me that evidence given by the applicant in Exhibit A5 (which he verified on 13 July 2014, and upon which he was not cross-examined) as to what an AFP officer “knew” or “was aware of” about the purport of his request of 4 June 2011 cannot assist in a determination of the scope of the request. Mr Lever said that Ms Dana Nikodijevic (with whom he dealt in relation to the first and second FOI requests) “knew I was making an FOI request for all documents in relation to the AFP PRS investigation file and that investigation centered on PIR 58/04”. He also said: “I note, I did not add the words “including but not limited to” prior to my numbered points, however I say, at all times Dana was fully aware of my intent of “including but not limited to”. The procedure referred to in ss 24, 24AA and 24AB of the FOI Act was not invoked by the respondent in relation to the request of 4 June 2011 and the request was not modified under s 24AB(6)(b) of the Act. In any event, the appreciation of the applicant as to the state of mind of Ms Nikodijevic concerning the meaning or intent of the request cannot assist with the construction of the written request.

10. It seems to me that the sentence “I wish to make a follow up request for documents that pertain to the AFP protection incident report 20 October 2004” does not operate as a repetition of the request of 1 February 2011. It is not in itself a request for documents. Nor does it have the effect that any of the numbered items in the request should be read as if they were introduced by the words “any documents relating to”.  It seems to me to set context for the various items or paragraphs which follow it, and to list particular documents that “pertain to the AFP protection incident report 20 October 2004” to which access is sought, at least as to those items or numbered paragraphs which describe documents.  (Some of those items or paragraphs are in the form of questions rather than identification of documents.)

11. It seems to me that the function of the sentence to which Mr Lever refers is similar to the function of the sentence preceding item 6 of the request, which is by way of introduction to item 6. 

12. Mr Lever informed the Tribunal that he was dissatisfied with the response to the first request and instead of seeking a review of that response, chose to make a further request.  The introductory sentence may be consistent with dissatisfaction with the response to the earlier request, but does not indicate or express dissatisfaction with that response, or state that the request was being made instead of challenging the response to the first request.  Even if it had, it is difficult to see how that would have expanded the enumeration contained in the second request.

13. The applicant’s main submission about scope in relation to the numbered items in the request related to item 7, and his submission was that it (and other items in the request) should be read as if it began with the words “any document relating to”.  I can see no basis for such a reading of the request for documents.

14. The wording of item 7 is not entirely clear. “CRAMS” is an acronym for the AFP’s Complaints Reporting and Management System, which is an online system for recording and managing complaints.  “PRS PROMIS” is the acronym for another online system, the Professional Standards instance of the AFP’s Police Realtime Online Management Information System: paragraph 17 of Mr Nathan Scudder’s affidavit sworn on 9 June 2017. The reference to the two databases in item 7 may give rise to some uncertainty as to what the request seeks.

15. Mr Lever had made a complaint to the Professional Standards unit of the AFP concerning both the terms of the protection incident report of 2004, which he alleged to be false and concocted and to the paucity of documents produced by the AFP in response to the Summons to Produce Documents of 2006 (see paragraph 5 above).  That complaint was investigated by the Professional Standards section of the AFP and resulted in a report. Mr Lever was sent information about the result of the investigation, which mentioned CRAMS 1841 and PRS PROMIS 48292. He said that he did not know what those two acronyms referred to when he made the subject request.

16. Mr Scudder, who is now the Coordinator of the Freedom of Information and Information Law section of the AFP, gave evidence that if he had been the maker of the first decision he would have understood item 7 as calling for the investigation report of the Professional Standards section of the AFP which resolved or finalised Mr Lever’s complaint. However he gathered that those decision makers who had preceded him in dealing with the request of Mr Lever prior to 2015 (when he commenced in the AFP’s legal branch) had apparently taken a wider view of item 7 and treated it as calling for any documents relating to the Professional Standards report contained in databases CRAM 1841 and PRS PROMIS 48292, including the report itself. For consistency in revising the earlier decisions he treated item 7 as having the same scope as he assumed his predecessors had done.

17. I will proceed in the same way as Mr Scudder did, since the applicant has received a broader category of documents on that basis. What I have rejected in Mr Lever’s submissions on this matter is that item 7 calls for any document in the possession of the respondent (whether or not within either of the identified databases) which relates to the report of the Professional Standards unit. Mr Scudder stated the opinion that if a request had been made in those terms, a search of thousands of documents would potentially have been necessary and a practical refusal reason for the purposes of s 24 of the FOI Act would have existed. That is, the work involved in processing the request would substantially and unreasonably have diverted the resources of the agency from its other operations.

18. Thus as between the approach to construction suggested by Mr Scudder and that suggested by Mr Lever, I adopt that of Mr Scudder, which also was what he and his predecessors had adopted in directing searches for documents called for by the request.

    SEARCHES

19. The next issue arising on this review relates to the steps taken by the respondent to find the documents referred to in the applicant’s request. The respondent bears the onus under s 61 of the FOI Act of establishing not only that its decisions were justified but also that the Tribunal should give a decision adverse to the applicant. If the Tribunal is not satisfied that all reasonable steps have been taken to find the documents the subject of the request, then the respondent’s onus will not have been discharged. The statutory obligation for the respondent to take all reasonable steps to find the documents identified in the request was discussed by Finn J in Chu v Telstra Corporation Limited [2005] FCA 1730, especially at [34]. Decision makers are given some guidance about how to comply with that duty by guidelines issued by the Information Commissioner under s 93A of the FOI Act.

20. The first decision was dated 2 December 2011 and was notified to the applicant by a letter of that date signed by Ms Jackie Matan, who described herself as Team Leader, Information Access (Freedom of Information), Government Relations. She caused searches to be conducted and identified 212 relevant documents, and decided that some of them were wholly or partially exempt under various sections of the FOI Act.

21. By an application to the Office of the Information Commissioner, Mr Lever sought a review of the first decision on 1 February 2012 and in the course of participating in that process Ms Anne Hazell, Coordinator, Information Access (Freedom of Information) undertook a review of the first decision and decided to release further information on 9 October 2012 (the second decision). That decision involved revisions to the exemptions claimed in the first decision but did not involve any further searches. In some cases documents which had been the subject of exemptions claimed in the first decision were released in full.

22. On 16 November 2012 Mr Lever sought review of the second decision by the Office of the Information Commissioner. That review was ultimately the subject of a decision by the Information Commissioner on 28 April 2015 under s 54W of the FOI Act that the interests of the administration of the Act made it desirable that the decision be reviewed by this Tribunal. On 27 May 2015 the present application for review was made to the Tribunal by Mr Lever.

23. In the meantime Mr Scudder had commenced with the AFP Legal Branch and he has since been the main officer directly concerned with Mr Lever’s request dated 4 June 2011. After Mr Scudder attended on behalf of the respondent a conciliation conference by telephone on 16 July 2015 he requested further searches to be made within PRS PROMIS by AFP Professional Standards, providing them with a list of numbers missing sequentially, which Mr Lever himself provided to Mr Scudder. As a result, additional documents were identified and on 15 October 2015, Ms Jacqueline Ellery (formerly Matan) wrote to Mr Lever advising that she had made a new decision (the third decision) releasing a further 128 documents to him, subject to various deletions claimed.  Mr Scudder explained in evidence that he undertook work connected with the third decision and Ms Ellery signed the third decision rather than him because he was probably on leave at the time.   Mr Scudder explained in his affidavit sworn on 9 June 2017 that in order to locate the 128 extra documents released under the third decision, particular log entries supplied by Mr Lever were utilized by those searching rather than the use of a Case Report produced by using a search tool which, by default, would not otherwise have identified those documents.  That search tool had apparently been utilized by those conducting the search made prior to the first decision.

24. On 8 April 2016 the Tribunal remitted the respondent’s decision of 15 October 2015 to the respondent for reconsideration and on 12 April 2016 Mr Scudder made the fourth decision by which he revised the claims for exemption, releasing some documents in full and revising other claimed exemptions. He did not make any further searches for the purposes of the fourth decision.

1. On 29 November 2016 a summons for the production of documents caused to be issued by Mr Lever was set aside and in place of it a direction was made by Deputy President Constance dated 9 December 2016, varied on 19 December 2016, which required production of certain documents.

2. On 7 March 2017, a consent order was made by the parties to this review, and under the consent orders, following consultations by an officer of the respondent with two AFP officers, further documents were released to Mr Lever relating to those officers with some exemptions. Some were released in part.

3. On various dates from 2015 to date Mr Scudder and Mr Lever have communicated by email and in person, as a result of which, Mr Scudder has clarified acronyms, provided clearer copies of documents released, and suggested other FOI requests which Mr Lever might wish to make to obtain documents which he seeks.  Several other FOI requests have been made by Mr Lever as a result and documents have been provided to him which are not involved in this review.

4. Whether all reasonable steps were taken by the respondent to find documents arises in relation to the searches made for the purposes of the first and third decisions. Mr Lever has also asserted that there has not been compliance with the direction of 19 December 2016.

5. The AFP has a special section at its national headquarters in Canberra known today as the Freedom of Information and Information Law section.  Mr Scudder has been its coordinator since 2015.  The same section I gather was known as Information Access (Freedom of Information) at the time of the first decision and by various other names in the interim.  Upon receipt of the FOI request in this case, that section’s staff made requests to various other sections of the AFP, selected according to whether Mr Scudder or Ms Ellery expected relevant records to be located. 

6. That procedure seems to me to be apt to enable the respondent to take all reasonable steps to locate relevant documents.  Mr Scudder or Ms Ellery could not be expected to carry out searches personally, and persons from the relevant section could be expected to carry out the actual search function efficiently.

7. In the case of item 7, for example, the section chosen was the Professional Standards section which maintained the CRAMS and PRS PROMIS databases.

8. For items 1-4 the search was directed to several line areas: AFP, ANSTO, the AFP Protection outpost at the Australian Nuclear Science and Technology Organisation and AFP Policy and Governance, and for items 2-4 the request for search was also addressed to AFP Protection.  For the purpose of the third decision, a further search request was directed again to the Professional Standards section.

9. In general the success of the searches conducted would depend on the requests for search being directed to the right sections and on the work done by the searchers involved.

10. Mr Scudder explained in paragraph 9 of his affidavit of 9 June 2017 the basis on which the various sections to which requests for searches were directed had been chosen, and it appears from the information in that affidavit that the search requests were well directed. 

11. He also gave some generalized evidence at paragraph 35 of his affidavit to the effect that he does not believe that the AFP holds any documents within the scope of the applicant’s FOI request, which have not already been provided to him.  His lengthy cross-examination did not reveal any error by the respondent in discharging its search obligations. He also expressed his belief in re-examination after the searches directed by him for the purposes of the third decision had been carried out that there was nothing in the PRS PROMIS database within the scope of item 7 that had not now been provided to Mr Lever.  He impressed me as a reliable witness and as a person well placed to express that view and the generalized view which he set out in paragraph 35 of his affidavit.

12. One subject of the cross-examination of Mr Scudder by the applicant was about what Mr Lever referred to as the “integrity” of the PRS PROMIS database.  If documents should have been uploaded into the PROMIS database which were not uploaded into it that will not mean that a proper interrogation of the PRS PROMIS database was incomplete on that account.  On its proper construction the scope of the FOI request was limited to what was within the PRS PROMIS database.

13. The production of documents for the purpose of the third decision demonstrated a different problem with the first search conducted of the CRAMS and PRS PROMIS databases. Apparently because of a deficiency in the search tool utilized for the purposes of the first decision, a different and more painstaking method of searching was required to produce the documents released under the third decision.  That problem having been identified by Mr Lever to Mr Scudder, Mr Scudder gave instructions for the taking of appropriate steps to overcome it before the third decision was made and further documents were released to Mr Lever.

14. The occasion for the search conducted for the purposes of the third decision was information discovered by Mr Lever himself, based upon his examination of numbers appearing on the documents released by the respondent under the first decision. Those circumstances do not inspire confidence in the searches which were conducted by Protective Services in 2011 into the CRAMS and PRS PROMIS databases for the purpose of the first decision, and indeed they show that if no further searches had been made for the purposes of the third decision, the AFP would have failed to discharge its onus of showing that all reasonable steps to find relevant documents had been taken.  As at the present time, however, it appears that all reasonable steps have been taken to locate relevant documents.

15. The view which I have taken about scope significantly affects the relevance of much that Mr Lever wished to elicit in cross-examination, as well as his final submissions, and the application which he made during the hearing for an adjournment to call some 24 witnesses in his case, which is further dealt with below.  As I have said, if Mr Lever’s submission about the scope of his FOI request had been correct, it is clear that the respondent did not do searches on that basis, and its decisions would need to be set aside.  This matter was taken up with Mr Lever in the course of cross-examination on the morning of the second day of the hearing, and I expected that he would conduct himself accordingly.  Nevertheless in written submissions filed after the oral hearing concluded he has made a considerable number of submissions about search which can only arise if the view of scope for which he contended were correct.

16. One example may suffice.  As to item 1 of his FOI request which relates to “Agreements between ANSTO and Australian Federal Police Protective Services re the protection of ANSTO and production/reporting of Protection incidents”, the applicant submitted that the underlining of the words in paragraph 6.3 of the document at Folio 360 of Exhibit R2 “to appropriate areas of the AFP in accordance with normal AFP operating procedures” appear to be a hyperlink to another document, which ought to have been searched and produced to him. I am very doubtful that the underlining indicates a hyperlink.  In any event, as I have construed the scope of the FOI request, AFP normal operating procedures do not fall within the scope of the FOI request, and the searches conducted by the respondent did not need to extend to documents recording normal operating procedures.

17. The respondent submits that rather than being a hyperlink, it was a tracked change to the document, indicated by the vertical black line to the left of the paragraph number.  That submission appears to have more merit than Mr Lever’s hyperlink submission, and Mr Lever ventured a submission that it may be both a hyperlink and a tracked change, which seems to me to involve a very unlikely coincidence.  He then put forward the further submission that if it is a tracked change, a further document must exist in which the change is accepted and he asks rhetorically, where is that document?  In other words, Mr Lever seeks to show that a proper search has not been conducted by suggesting that another document must exist in the AFP’s system which has not been produced, so the search has not involved the taking of all reasonable steps.

18. There is another possibility, that the person who made the tracked change did not take the next step of accepting the changes and printing a final document, but instead printed the document without accepting the changes.  I am prepared to accept that scenario as more probable than not, because the document with the tracked change has been printed in that form, and because the AFP has in fact found the document with underlining and not the document which Mr Lever submits must exist.

19. Among the various other submissions about search made by Mr Lever in writing after the hearing concluded, very few seem to me to arise if the scope of the FOI request is as I have found. 

20. At page 6 of the closing written submissions of Mr Lever reference is made to an email dated 3 June 2010 sent by him to the Tribunal on 14 July 2017, which is submitted to confirm that there were “other communications” from Ms Chadwick some time on or after 29 May 2006.  This is said by Mr Lever to indicate that the searches conducted under item 6 of the FOI request were incomplete, because no such email from Ms Chadwick was given to the applicant. The email of 3 June refers to contact between Ms Chadwick and Mr Cartwright but does not suggest that the contact was by email. Indeed the terms of the third paragraph of Mr Cartwright’s email suggest telephone contact to me. I am not satisfied that any emails were not produced within item 6 of the FOI request.   I am also satisfied that all reasonable steps were taken to locate emails sent by Ms Chadwick.

21. As to the directions of 19 December 2016, I have taken note of the AGS correspondence directed to the Tribunal of 12 January 2017 and its correction of 9 June 2017. That correspondence satisfactorily explains the response to the directions in my opinion.

22. During the hearing Mr Lever made an application to call some 24 new witnesses in his own case. It seemed to me that such a request was made too late. If witnesses had been intended to be called by him, they ought to have been summoned already and served. The hearing was fixed for four days and that period of time would plainly have been insufficient for such a large number of new witnesses.  If granted, Mr Lever’s application would have caused the hearing to be adjourned.  The hearing date had already been long delayed.  Some of the witnesses involved no longer work for the AFP and their whereabouts was unknown not only to the respondent but also to Mr Lever.  They were to be asked about events of long ago and their recollection may well not have been useful in any event. I rejected the application. Later in the hearing Mr Lever informed me that their evidence arose in the context of the view of scope of the FOI request which I have rejected.

23. In the result I am satisfied on the balance of probabilities that all reasonable steps to find the documents called for in the FOI request have been taken by the respondent.

    EXEMPTIONS

24. The final issue to be dealt with relates to exemption claims.  These issues were somewhat narrowed during final address by concession of the respondent.  I have been provided by the respondent with un-redacted copies of the following Folios of Exhibit R2 (the various documents as provided to Mr Lever):

    ·6;

    ·42;

    ·148;

    ·159;

    ·293; and

    ·316.

25. The exemptions claimed by the respondent in relation to Folio 316 are no longer in issue between the parties.

26. All exemptions are claimed under s 47F of the FOI Act, which involves the question whether disclosure of the parts for which exemption is claimed would involve the unreasonable disclosure of “personal information” about any person. Personal information has the same meaning as in the Privacy Act1988: s 4(1) of the FOI Act.

27. The Privacy Act defines that term to mean information or an opinion about an identified individual, or an individual who is reasonably identifiable:

    (a)whether the information or opinion is true or not; and

    (b)whether the information or opinion is recorded in a material form or not.

28. I have consulted the documents and am satisfied that the exempted information involves personal information about persons in all the documents.  The information contained in some of the documents is however less sensitive than in others.

29. In the case of Folio 6, the material exempted identifies those who were on duty at ANSTO, other than the officer whose identity is already known to the applicant, on 20 October 2004, and those who were on duty on the following day. The respondent accepts that public interest factors favouring disclosure exist (in particular, issues arising under ss 3 and 11 of the FOI Act). It also submits that public interest factors favouring exemption exist, particularly those favouring an individual’s right to privacy, and submits that the zeal with which the applicant has pursued his present application indicates that he may press the individuals in question for information about the events of October 2004, which is not likely to be recollected by them in any event. As to the intentions of Mr Lever if he obtains the names in question, his statement of facts, issues and contentions dated 23 May 2017 indicates at paragraph 181 that he desires to obtain from them information about the “processes and documentation used at the time” and refers at paragraph 190 to an intention to have them give evidence. I doubt that this consideration is one available to the respondent to justify an exemption because section 11(2) of the FOI Act provides that:

    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. 

30. The only information about persons named in Folio 6 is their name, and the fact that they were on duty in a certain place on 20 and 21 October 2004, more than 12 years ago. The respondent relies upon what is contained in paragraph 6.156 of guidelines published by the Information Commissioner under s 93A of the FOI Act. The Commissioner there says that “where an individual has a propensity to pursue matters obsessively and there is no need for them to contact a particular public servant in the future, disclosure of the public servant’s name may be unreasonable”.

31. The guidelines are not binding on the Tribunal, since s 93A provides that they are not legislative instruments. They are matters to which regard must be had, and in this Tribunal matter to which consideration will ordinarily be given. Paragraph 6.156 may need further consideration in an appropriate case as to its consistency with s 11(2) of the Act. However, in this case, I am neither satisfied that the Commissioner has established that Mr Lever has a tendency to pursue matters obsessively nor that he has established that there is no need for him to contact the persons in question in the future. This hearing has paid close attention to an investigation of the FOI decisions, and the factual background to the FOI request from Mr Lever’s point of view has not been investigated. He has certainly pursued his request with unusual vigour. Whether that was obsessive must depend on underlying facts relating to his dismissal and his complaint which are not within the scope of this review. Similarly, whether there is any “need” for him to contact the persons in question depends on the same questions as well as factual matter as to his future intentions as to other litigation, which it would be speculative to consider on the evidence led before me.

    CONCLUSION

32. In my opinion the information on the confidential copy of Folio 6 has not been shown to be so sensitive as to outweigh the factors favouring access to the document, and I would treat the release of the information as the correct or preferable decision. That finding extends to the material in yellow on the confidential copy of Folio 6.

33. The information exempted from the confidential copies of Folios 42,148,159 and 293 falls into a different category. That information is both sensitive and unrelated to the applicant in any way and I would treat the general public interest factors favouring disclosure (that is those arising under ss 3 and 11 of the FOI Act) as outweighed by the privacy interests of the officers concerned.

34. In the result, save as to what I have found in relation to the confidential copy of Folio 6, I would affirm the exemption decisions under review, and I would otherwise affirm the decisions under review.

35. In conclusion, the Tribunal decides:

    (a)In relation to Folio 6, the decision is set aside and substituted with a decision that the Folio is not an exempt document under s 47F of the Freedom of Information          Act 1982, to the extent of the material in yellow on the confidential copy of the           Folio.

    (b)In all other respects, the decision is affirmed.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

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

Associate

Dated: 22 August 2017

Date(s) of hearing:	7,  12 & 13 July 2017
Final submissions received:	21 July 2017
Applicant:	In person
Counsel for the Respondent:	Mr J Davidson
Solicitors for the Respondent:	Australian Government Solicitor