Maskell and Chief Executive Officer, Centrelink
[2004] AATA 522
•24 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 522
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/429
GENERAL ADMINISTRATIVE DIVISION ) Re GRAEHAME MASKELL Applicant
And
CHIEF EXECUTIVE OFFICER, CENTRELINK
Respondent
DECISION
Tribunal Mr M Allen Date24 May 2004
PlacePerth
Decision The decision made on 20 October 2003 by a delegate of the respondent is affirmed.
…............(sgd M Allen)....................
Member
CATCHWORDS
FREEDOM OF INFORMATION – anonymous information provided – information recorded in a Centrelink computer database – whether respondent entitled to rely on exemption under s 37(1)(b) – information provided was a confidential source of information – information relates to enforcement or administration of the law – release of the information could reasonably be expected to enable the applicant to ascertain the identity of the confidential source – decision to refuse access affirmed.
Freedom of Information Act 1982 s 37
Administrative Appeals Tribunal Act 1975 s 35, 37
Social Security (Administration) Act 1991 s 7, 8
McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645
Re Department of Health, McKay and Jephcott (1985) 8 FCR 85
Hays v Secretary, Department of Social Security [1996] FCA 1078
REASONS FOR DECISION
24 May 2004 Mr M Allen 1. On 20 October 2003 a delegate of the respondent made a decision to refuse the applicant access to the information provided to Centrelink by an anonymous source. The applicant has applied for review of that decision.
2. The background to the matter is that on 11 August 2003 an unknown person telephoned Centrelink and provided information to Centrelink’s Tip-off Unit. The Centrelink officer who took the call recorded on a computer database known as the Tip-off Recording System (TORS) the information that was provided. A printout of the information recorded in the TORS system is Exhibit R1 in the proceedings. At the hearing I made an order pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) that access to that document be restricted to the respondent and its representatives and Members and staff of the Tribunal. In a schedule of documents claimed to be exempt filed by the respondent in the proceedings the document was described as “a two-paged document headed “Tip-off Recording System” recording an allegation from a member of the public in relation to [the applicant]”.
3. The applicant represented himself and the respondent was represented by Mr Holt, an officer of Centrelink. The Tribunal received into evidence the documents filed under s 37 of the AAT Act as well as Exhibit R1 referred to above. Oral evidence was given by the applicant and, on behalf of the respondent, by Mr Mark Walsh, Mr Colin Oakley and Ms Justine Fantasia, all of whom are Centrelink officers. I made orders at the hearing that the evidence of Mr Walsh and Ms Fantasia, and some of the submissions made on behalf of the respondent be taken and made in the absence of the applicant.
4. On 19 August 2003 an investigation into the allegations about Mr Maskell as recorded in the TORS system was commenced by Centrelink. On 23 September 2003 the applicant made a request for access to the record of the telephone call and by letter dated 30 September 2003 (T9) the applicant was informed of a decision not to grant access to the document. The applicant sought internal review of that decision and on 20 October 2003 a review officer informed the applicant by letter of that date (T2) that access would be refused. Both the original decision maker and the review officer identified s 37(1)(b) of the Freedom of Information Act 1982 (the Act) as the ground of exemption from disclosure. That subsection relevantly provides that a document is an exempt document “if its disclosure … would, or could reasonably be expected to …(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information … in relation to the enforcement or administration of the law.” Subsection 37(3) of the Act defines “law” to mean “law of the Commonwealth or of a state or territory.”
5. In a statement of facts and contentions filed in the proceedings by the respondent two additional grounds of exemptions were identified and the case proceeded on the basis that the refusal to grant the applicant access to the document was also justified by those two additional grounds. The first of these additional grounds was pursuant to s 37(1)(a) of the Act, which relevantly provides that a document is an exempt document “…if its disclosure would, or could reasonably be expected to (a) prejudice the conduct of an investigation of a breach, or possible breach, of the law … or prejudice the enforcement or proper administration of the law in a particular instance.”
The second additional ground of exemption was pursuant to s 37(2)(b) of the Act which relevantly provides that a document is an exempt document “…if its disclosure would, or could reasonably be expected to … (b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures.”
Consideration
6. Because it was the ground relied on by the original decision maker and the review officer, it is convenient that I address first the possible ground of exemption under s 37(1)(b) of the Act. In McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645 at [17], Muirhead J stated that the essential questions to be answered by the Tribunal when considering this ground of exemption are:
“(a) Was the [document] in question a confidential source of information?
(b)If so, was it properly classified as relating to the enforcement or administration of the law?
(c)Would its release in toto disclose the identity of the confidential source or in the alternative could it reasonably be expected to do so?”
7. The test of what is a confidential source of information for the purposes of s 37(1)(b) of the Act has been taken to mean a person who has supplied information on the understanding, express or implied, that his or her identity will remain confidential (Re Department of Health, McKay andJephcott 8 FCR 85 per Keely J at [4]). Whether or not those circumstances exist is a question of fact and the onus of establishing it is on the agency claiming it. As Mansfield J observed in Hays v Secretary, Department of Social Security [1996] FCA 1078 a conclusion to that effect will not be routine and is to be decided in all the circumstances of the particular case.
8. Mr Walsh gave evidence that he took the telephone call made to Centrelink on 11 August 2003. Although Mr Walsh’s evidence was given in the absence of the applicant, it is appropriate to refer to some aspects of the evidence given by him. Mr Walsh described the training that he had received in order to carry out his duties of taking tip-off calls and in relation to Centrelink’s policies concerning confidentiality and the advice to be given to callers.
9. Mr Walsh said that he could not recall the specific telephone call because he takes on average 20 such calls each day. However, he could tell from the logon details recorded in Exhibit R1 that he was the officer who took the call. He described the process of explaining to the callers that the information they provide might be released to other government agencies and that it might be released pursuant to freedom of information legislation or in the appeals process in relation to Centrelink decisions. Callers are informed, however, that it is Centrelink’s policy to receive and deal with the information provided in a confidential way.
10. Mr Walsh explained that some things in the TORS database are automatically completed (such as a tip-off registration number that appears once the other information is entered into the system, and the date of the call). Other information is entered by the officer taking the call (such as whether the call is received by telephone or some other means). Other fields are only completed if the caller supplies relevant information for them. One such field involves recording whether the caller believes that any of the information supplied by him or her will enable the caller to be identified. The fact that that field does not appear in Exhibit R1 allowed Mr Walsh to conclude that the caller must have said that the information could not identify the person and that he would, therefore, have left the relevant field blank.
11. Oral evidence was given in Mr Maskell’s presence by Mr Colin Oakley. Mr Oakley has been a Centrelink officer for many years and he is an FOI review officer. He made the decision on 20 October 2003 to deny access to the applicant.
12. Mr Oakley said that officers in his position are conscious that even if information is provided on an anonymous basis it can still be possible for the supplier of the information to be identified because of the nature of the information provided. It is Centrelink policy to advise people that information may be released under FOI legislation and part of his job is to consider, and make a judgement about, whether the information provided could enable the identification of the supplier. He takes the view that information that refers to particular activities or particular people may allow the identification of the supplier. He always considers whether documents can be provided with some information deleted but to do so often makes what is left misleading. In this particular case he had concluded that the information that was contained in the TORS system was sufficiently specific in relation to the applicant that it may well have allowed the identification of the supplier. He was influenced in reaching that conclusion by the fact that the applicant lives in a small country town. Mr Oakley said that he was aware that the TORS system contains a field that allows the supplier of information to say whether the information supplied could enable his or her identification, and that the fact that it was blank in this case meant that the supplier must have said that the information would not enable his or her identification. Nevertheless, he was conscious of the fact that even though the informant might not think the information would allow identification what was recorded might allow the person to be identified – because of reference to specific words or activities or places.
13. On the evidence before me I am satisfied that Mr Walsh would have explained to the caller that, although the information supplied might be passed to other government agencies and might be released pursuant to FOI legislation or Centrelink appeals processes, Centrelink would endeavour to maintain the confidentiality of the identity of the supplier. The fact that the caller chose to provide the information anonymously and did not provide any contact details that would allow Centrelink to contact the person at a later date suggests to me, and I so find, that the caller provided the information on a confidential basis even though the caller may have believed that nothing in the information would allow the applicant to identify him or her. In the circumstances I am satisfied that the first of the 3 questions identified in McKenzie is satisfied.
14. The second question identified in McKenzie relates to whether the information concerns the enforcement or administration of the law. Section 7 of the Social Security (Administration) Act 1991 confers on the respondent the general power of administration of the social security law and s 8 of that Act requires the respondent, in administering the social security law, to have regard to the desirability of achieving a number of specified results - one of which is “the establishment of procedures to ensure that abuses of the social security system are minimised.” The respondent has established procedures for the assessment and investigation of information provided by members of the public about possible cases of benefits being paid to persons who are not entitled to receive them and the tip-off procedure and referral to investigation terms is part of that process. It is of no consequence that the information provided by members of the public turns out to be true or false. The information that is given is information that relates to the enforcement or administration of the law and I am satisfied that the second of the 3 questions identified in McKenzie is made out.
15. The final question to be identified in relation to s 137(1)(b) concerns whether release of the information in toto would disclose the identity of the source or be reasonably expected to do so. It is not necessary that the risk of identification actually occurring be a substantial risk: see Jephcott per Forster J at [13] and [14] and per Keely J at [2].
16. In the present case an examination of Exhibit R1 reveals that the caller provided quite explicit information concerning the applicant and another person. Just how many people would have access to such specific information it is not possible to say, but I agree with Mr Oakley’s comment that the fact that the applicant lives in a relatively small rural community is relevant and may well mean that the information could enable the applicant to identify the informant. In the circumstances I am satisfied on the balance of probabilities that disclosure of the information provided could reasonably be expected to enable the applicant to ascertain the identity of the source of information. I am also satisfied that it would not be possible to edit the document by deleting some parts of it without making the document meaningless.
17. I am therefore satisfied that all three of the questions identified in McKenzie as relevant to the s 137(1)(b) exemption are made out and I find that the document is an exempt document under that ground. Having arrived at that conclusion it is unnecessary for me to consider whether the document would also be exempt pursuant to the other grounds of exemption claimed by the respondent. Ms Fantasia’s evidence related mainly to the other grounds of exemption and it is not necessary to set out that evidence.
18. My decision is that the decision made by a delegate of the respondent on 20 October 2003 to refuse the applicant access to the record of the telephone call is affirmed.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member
Signed: ...........(sgd V Wong)....................................
AssociateDate/s of Hearing 5 March 2004
Date of Decision 24 May 2004
Counsel for the Applicant In person
Counsel for the Respondent Mr A Holt
Solicitor for the Respondent Service Recovery Team, Centrelink
3
3
0