Miller and Secretary, Department of Agriculture, Fisheries and Forestry

[2007] AATA 1635

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1635

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  W 2006/95

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Paul Leslie Miller

Applicant

And Secretary, Department of Agriculture, Fisheries and Forestry

Respondent

DECISION

Tribunal  Senior Member B J McCabe

Date 6 August 2007

Place Perth

Decision  The decision under review is affirmed.

............(Sgd. B J McCabe).................

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – Exempt Documents – grounds contended were breach of confidence, unreasonable disclosure of personal information, business affairs – onus not met beyond measures already taken – decision under review affirmed

Johnson Tiles Pty Ltd v Esso Australia Ltd (No 3) (2000) 174 ALR 701

Corrs Pavey Whiting and Byrne v Collector of Customs (1987) 13 ALD 254

Freedom of Information Act 1982 ss 27, 40, 41, 43, 45, 59, 61

Australian Meat and Livestock Industry Act 1997

REASONS FOR DECISION

6 August 2007 Senior Member Bernard J McCabe         

1.      Dr Paul Miller wants the Veterinary Practitioners’ Registration Board of Victoria (the Board) to be prevented from accessing two documents held by the Department of Agriculture, Fisheries and Forestry. The Board asked for the documents under the Freedom of Information Act1982 (the Act). The Department listened to Dr Miller’s objections but decided to release the documents with parts of the text deleted. Dr Miller has asked the Tribunal to prevent the Board from accessing the documents. He is the applicant in these proceedings pursuant to s 59 of the Act.

2.      Dr Miller’s objections to the Department’s decision were set out in a document sent to the Department on 20 October 2006. That document was treated as the applicant’s statement of facts, issues and contentions for the purposes of these proceedings. Dr Miller said he was happy for the Tribunal to deal with the matter having regard to the material without a hearing.

3.      The applicant has raised a number of objections to the release of the documents. The objections, set out in the letter of 20 October 2006, do not expressly refer to exemptions available under the Act. It is necessary for me to consider the objections and determine whether any of the exemptions are properly available. For the purposes of conducting the review, I required the respondent to provide me with an unexpurgated copy of the documents in question.

the factual background to the dispute

4.      The applicant is a veterinary surgeon. He is involved with a company called Sampak Pty Ltd. Sampak held an export licence under the Australian Meat and Livestock Industry Act 1997. The export licence was cancelled at the behest of the Australian Quarantine and Inspection Service (AQIS) following an incident in Portland, Victoria. Before the cancellation decision was made, Sampak was issued with a notice requiring it to show cause why its export licence should not be cancelled. Sampak provided at least two responses: a letter dated 18 October 2002 and a fax of 30 October 2002. The Board wants to see those letters. I assume it believes there is material that relates to the applicant that may be relevant to the discharge of its functions. The Board has made an application under the Act to this end. The Department contacted Dr Miller when the application was lodged and invited him to make submissions. It did so because s 27 of the Act requires that the decision-maker contact a person when a request is made for documents containing information about that person’s business or personal affairs. Dr Miller, for his part, says the material should not be released.

dr miller’s objections to releasing the documents

5.      Dr Miller’s letter of 20 October 2006 sets out several objections to the release of the documents. Those objections can be summarised as follows:

(a)The documents were presented voluntarily on the understanding they would not be released;

(b)The documents include personal information;

(c)The Board already has the gist of the information contained in the documents. Any additional details are unlikely to assist but will be interpreted “in such a way as to continue the victimisation” the applicant has experienced. He goes onto say he anticipates the details will be used to excite further damaging public scrutiny of his affairs and conduct, and points out the Board has already had plenty of time to complete any inquiries; and

(d)The documents contain commercially sensitive material.

6.      I can say at once that I do not regard the matters referred to in (iii) above as falling within any category of exemption available under the Act. Section 11 confers a general right of access to documents, subject to the other provisions of the Act. The motivation of the party seeking access to documents is irrelevant to the decision-making process: Johnson Tiles Pty Ltd v Esso Australia Ltd(No 3) (2000) 174 ALR 701 at 707-708 per Merkel J.

7. I will therefore attempt to identify provisions in Part IV of the Act upon which the applicant might rely. I note that Dr Miller bears the onus of proving that the Board is not entitled to access the documents: s 61(2).

8. The objection in (a) is reminiscent of s 45. Section 45 creates an exemption in respect of documents containing material that – if the material were disclosed - might found an action against the agency for breach of confidence. The Department did not rely on s 45 when making its decision, and was not required to elicit the views of Dr Miller on whether that exemption is available because the obligation to consult under s 27 only relates to material that might attract the exemption contained in s 43: see Corrs Pavey Whiting and Byrne v Collector of Customs (1987) 13 ALD 254 at 257 per Jenkinson J. The Department did not refer me to any evidence that indicates the exemption should be invoked.

9. The objection in paragraph (b) is effectively a claim for exemption under s 41. Section 41 deals with documents that contain personal information. It creates an exemption for those documents if disclosure would be unreasonable. The Department concluded it was appropriate to invoke the exemption in relation to one of the documents in question because it identified sources of information that were important to the Department in carrying out its statutory function. The decision-maker reasoned it would be unreasonable to disclose that information because doing so would make those individuals (and perhaps others) reluctant to provide information in the future. The decision-maker was right, and I am satisfied the exemption was properly invoked. The decision-maker also pointed out in his reasons that the expression personal information did not extend to information about a company. Companies are not individuals, and information about them is not capable of being regarded as personal information. I note the decision-maker has added it was not necessary to suppress the whole document. The document included information about corporate officers whose roles and activities were already a matter of public record. It was decided the document could be released with the exempt material deleted pursuant to s 22. I accept that was the right course.

10. The other exemption referred to by the applicant – the sole ground on which it was entitled to make submissions pursuant to s 27 – is the ‘business affairs’ exemption in s 43. The decision-maker concluded it was appropriate to claim the exemption in relation to a number of pages of a letter dated 18 October 2002 responding to a show cause notice issued by the Department. The deletions include information that may be of commercial value. The Department relied on s 43(1)(b) to delete information about losses suffered by a company involved in an incident. It also relied on subparas (i) and (ii) of s 43(1)(c) to suppress information supplied by or about third parties where those parties were no directly involved in the incident in question. I agree with the respondent’s decision in this regard. But the balance of the document merely contains material that is already on the public record. In any event, the decision-maker said it was unclear whether that information held any commercial value that might justify its suppression in accordance with the section. I agree.

11. I note the Department also relied on the exemption in s 40 to justify deleting passages from some documents. Section 40(1)(d) refers to documents containing information that would, if disclosed, have a substantial adverse impact on the operations of the agency. The Department said the deleted portions of the documents in question contained a number of full and frank remarks by third parties that might give rise to actions for defamation. The decision-maker concluded it was not in the public interest that the flow of information to it be interrupted by the threat of litigation. I accept the decision-maker’s conclusions in this regard.

conclusion

12. The applicant has not identified any basis for me to change the decision of the Department and limit access to the documents in question. He has not discharged his burden of proof under s 61. The decision under review is affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         ...................(Sgd. S O’Grady)............................
  Associate:     Stephen O’Grady

Heard on the papers
Date of Decision  6 August 2007
Representative of the applicant:     Self-represented

Solicitors for the respondent:         Blake Dawson Waldron.