Miniter and Chief Executive Officer, Centrelink

[2004] AATA 601

Administrative

Appeals

Tribunal

 

`

DECISION AND REASONS FOR DECISION [2004] AATA 601

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2003/241

GENERAL ADMINISTRATIVE DIVISION		)
Re		HILMA MINITER (previously WOODS)

Applicant

And CHIEF EXECUTIVE OFFICER, CENTRELINK

Respondent

DECISION

Tribunal Mr M Allen, Member

Date11 June 2004

PlacePerth

Decision The decision made by a delegate of the respondent on 23 April 2003 is affirmed.

…............(sgd M Allen)........................

Member

CATCHWORDS

Freedom of information – anonymous information provided – information recorded by Centrelink – whether respondent entitled to rely on exemption under s 37(1)(b) – letter sent to Centrelink was a confidential source of information – letter relates to enforcement and administration of the law – release of the letter could reasonably be expected to enable the applicant to ascertain the identity of the confidential source of information – decision to refuse access affirmed.

Freedom of Information Act, 1982 s 37(1)(b)

Social Security (Administration) Act, 1991 ss 7, 8

McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645

Department of Health v Jephcott (1985) 9 ALD 35

Hayes v Secretary, Department of Social Security [1996] 1078 FCA 1, (1995) 43 ALD 783

Re Venzin and Centrelink [2002] AATA 602

Re Power and Secretary, Department of Family and Community Services [2002] AATA 1302

REASONS FOR DECISION

11 June 2004 Mr M Allen, Member           

1.      On 23 April 2003 a delegate of the respondent made a decision not to grant the applicant access to a copy of a document that had been received by Centrelink on 30 December 2002.  The applicant has now applied for review of that decision.

2. At the hearing of the matter the applicant represented herself, appearing by telephone. The respondent was represented by Ms Bradley, a Centrelink officer. The Tribunal received into evidence documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T7) and Exhibits R1 and R2, tendered by the respondent. At the conclusion of the hearing I granted leave to the respondent to adduce further evidence by way of affidavit concerning promotional material published by Centrelink, with the applicant being granted leave to file further material in response thereto. An affidavit sworn by a Centrelink officer, Mr Aaron Holt, on 21 May 2004 was subsequently filed and I will refer at para 17  below to the contents thereof. No additional material was received subsequently from the applicant. Mr Holt’s affidavit and its annexures will be referred to as exhibit R3.

3.      Oral evidence was given by the applicant and by Ms Rashmi Vij, who is a Freedom of Information (‘FOI’) officer in Centrelink.

4.      The background to the matter is that on 7 March 2003 the applicant applied for access to documents described in the request as “documents of information Centrelink received (report), living arrangement, payments etc 602 880 067B/  QSS32 /AIV /CGS / compliance” (T3).

5. By letter dated 17 March 2003 (T4) Ms Vij informed the applicant that she had decided not to grant access to a document that had been identified as coming within the scope of the request because the document was exempt from disclosure pursuant to s 37(1)(b) of the Freedom of Information Act 1982 (the Act).

6. In April 2003 the applicant sought review of that decision and by letter dated 23 April 2003 (T7) a review officer within Centrelink informed the applicant that he had made a fresh decision to refuse access to the document in question because it was exempt from disclosure under s 37(1)(b) of the Act.

7.      The document in question was identified in the Schedule of Exempt Documents filed by the respondent as having been received on 30 December 2002, that it was anonymous and that it was “a 1 page hand written document containing alleged personal and income details in relation to the applicant”.

8.      Section 37(1)(b) of the Act 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 … 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 other State or Territory”.

9. In the respondent’s Statement of Facts and Contentions filed in the proceedings two other grounds of exemption were identified as relevant, but at the hearing Ms Bradley abandoned those two grounds and relied only on s 37(1)(b).

10. The document that was received by Centrelink on 30 December 2002 was Exhibit R2 in the proceedings. I made an order pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 that access to that document be restricted to the respondent and the respondent’s representatives, and to members and staff of the Tribunal.

11.     In her oral evidence the applicant said that she was not really interested in knowing the identity of the person who provided the information to Centrelink but she did want to know what information had been supplied. She contended that if the information related to her income and personal affairs then that would not enable the identification of any person.

12.     In her oral evidence Ms Vij verified an affidavit sworn by her on 5 May 2004 and filed in the proceedings (R1).  She said that she had been a Centrelink officer since 1991 and an FOI officer since January 2001.  She described the process by which she deals with requests for access to documents.  In cases where a “tip off” has been received by Centrelink the standard procedure is for the FOI officer to not refer to the actual document received, but rather to access a computer data base known as the “Tip Off Recording System” or TORS.  In the present case she had accessed the information held within TORS concerning the applicant and had made a judgement that the information had been given to, and received by, Centrelink in circumstances of confidence, and that the information was sufficiently specific in relation to the applicant that disclosure of it would enable the identification of the person who had supplied the information, even though it had been supplied anonymously.

13.     Ms Vij said that she was aware of a very clear policy within Centrelink that all information received from a member of the public was to be treated as confidential and that any person who approached Centrelink for the purpose of providing information would be told that the information would be treated as confidential.  For example, if a person telephoned Centrelink or went to a Centrelink office to enquire about providing information he or she would be informed of that.  In addition, Ms Vij said that she was aware of advertising campaigns that Centrelink had undertaken that encouraged people to provide information to Centrelink and emphasised that the information so given would be treated in confidence.  She said that she was also aware that the Centrelink website contained statements to that effect and that information could be provided via the website by members of the public.

14.     In answer to questions I posed to Ms Vij, she said that she had never examined the original document received by Centrelink and had never compared its contents with the contents of the various fields in the TORS data base.  She was not therefore able to say whether the information in the TORS data base was a complete reflection of what was in the original document.  She also said that she was unaware of what the circumstances were in relation to the giving of the information by the unnamed person to Centrelink, but it was her judgement that the person would have wished to keep his or her identify, and the information provided, confidential.

15. In matters involving the operation of s 37(1)(b) of the Act reference is frequently made to the decision of Muirhead J in McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645 at [17] wherein His Honour said that the essential questions to be determined by the Tribunal 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 identify of the confidential source or in the alternative, could it reasonably be expected to do so?”

16.     In relation to the first of those three requirements, the test to be applied is whether the information was provided under an express or implied pledge of confidentiality: Department of Health v Jephcott (1985) 9 ALD 35 per Forster J at [11].  A conclusion to that effect will not be routine and is a question of fact to be decided in all the circumstances of the particular case, with the onus of establishing the matter resting upon the agency claiming it: Hayes v Secretary, Department of Social Security [1996] 1078 FCA 1, (1995) 43 ALD 783  per Mansfield J.

17.     Exhibit R3 includes considerable material taken from Centrelink’s website in relation to the giving of information to Centrelink and how that information will be dealt with. In a number of different ways and contexts the material sets out that Centrelink will only use the information for the purpose for which it is provided; that providers can, but need not, provide information regarding their identity; that Centrelink will not disclose information without the provider’s consent (where possible); but that Centrelink may be required to disclose information under Freedom of Information legislation or Centrelink’s appeals processes. Exhibit R3 also contains examples of promotional material that encourages welfare recipients voluntarily to keep Centrelink informed of information relevant to their benefits.

18.     In the present case the document sent to Centrelink did not contain the name, address or other contact details of the person providing the information.  The policy of Centrelink to treat all information received as confidential is not conclusive of the matter, but is relevant.  Nothing is known about the extent of knowledge of the person who provided the information about Centrelink’s promotional material regarding confidentiality or that person’s motivation. However, because of the kinds of publicity campaigns undertaken by Centrelink and its promotional material, I am inclined to agree with the comment of Member McCabe in Re Venzin and Centrelink [2002] AATA 602 at [12] that it is “arguably public knowledge that information about suspected fraud can be given to Centrelink in confidence”.  On the balance of probabilities I consider that the information was given to Centrelink on an implied undertaking that the identity of the supplier of the information would be treated as confidential by Centrelink.

19.     Accordingly, I find that the first requirement identified by Muirhead J in McKenzie is satisfied.

20.     The second requirement in McKenzie relates to whether or not the information provided can be properly classified as relating to the enforcement of administration of the law. Under s 7 of the Social Security (Administration) Act 1999 the respondent has the general power of administration of the social security law and under s 8 of that Act the respondent is to have regard, in the administration of the social security law, 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”.  I am satisfied on the evidence of Ms Vij that Centrelink does have administrative procedures for dealing with information provided by members of the public, including the examination or investigation of such information.  The respondent has those procedures so that possible abuses of the system can be identified and investigated and informed decisions made about the entitlements of persons to benefits under the legislation.  I am satisfied that the information provided to Centrelink relates to enforcement and administration of the law: see Re Power and Secretary, Department of Family and Community Services [2002] AATA 1302 at [18]  per Senior Member Lindsay.

21.     The third of the McKenzie requirements is whether release of the information in toto would disclose the identity of a confidential source or could reasonably be expected to do so.  It is not necessary that the risk of that occurring be characterised as a “substantial risk”: see Jephcott per Davies J at [1] and McKenzie at [20] and [21]. Exhibit R2 is hand written and contains quite specific and particularised information about the applicant.  Although the risk of identifying the provider from the handwriting can be avoided by providing a typed copy of the document, in my opinion the degree of specificity is such that the information is unlikely to be known to a large number of people.  In my opinion the provision of the information in the document to the applicant could reasonably be expected to enable the applicant to ascertain the identity of the provider of the information.  In this respect I consider it to be important that the applicant lives in a small regional town – so that the possible “pool” of potential informants would be relatively small. I also consider that it would not be possible to edit the document by deleting certain parts without making it meaningless.

22.      I am satisfied that all three of the requirements identified in McKenzie are made out and I find that the document is an exempt document pursuant to s 37(1)(b) of the Act. Accordingly, I affirm the decision made on 23 April 2003 to refuse the applicant access to the document.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member

Signed:         .............(sgd V Wong)........................................
  Associate

Date/s of Hearing  12 May 2004
Date of Decision  11 June 2004
Counsel for the Applicant         In person   
Counsel for the Respondent     Rhonda Bradley
Solicitor for the Respondent     Service Recovery Team, Centrelink