Mitchell and Secretary, Department of Defence (Freedom of information)

[2018] AATA 158

Mitchell and Secretary, Department of Defence (Freedom of information) [2018] AATA 158 (7 February 2018)

Division:FREEDOM OF INFORMATION DIVISION

File Number(s):      2017/2070

Re:Albertus Mitchell

APPLICANT

Secretary, Department of DefenceAnd  

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:7 February 2018

Place:Sydney

The application that the Tribunal recommend to the Attorney-General that the Commonwealth pay the costs of Mr Mitchell in relation to these proceedings is refused.

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J W Constance
Deputy President

CATCHWORDS

FREEDOM OF INFORMATION – costs – discretion of Tribunal to recommend payment of applicant’s costs by Commonwealth – whether applicant successful, or substantially successful, in application for review – lack of information as to the matters to which the Tribunal would have been required to have regard had the discretion been enlivened – application refused 

LEGISLATION

Freedom of Information Act 1982 (Cth) s 66

CASES

Re Lianos and Secretary, Department of Social Security (No 2) (1985) 9 ALD 43

Re Paterson and Department of Arts, Heritage and Environment (No 2) (1985) 8 ALD 227

“WAJ” and Commonwealth Ombudsman [1999] AATA 13

REASONS FOR DECISION

Deputy President J W Constance

7 February 2018

INTRODUCTION

1. In April 2017 Mr Mitchell applied to the Tribunal to review a decision of the Australian Information Commissioner.  In his decision the Commissioner affirmed a decision of the Secretary, Department of Defence, refusing Mr Mitchell’s request for access to specified documents in accordance with the Freedom of Information Act 1982 (Cth).

2. The application was listed for hearing on 9 November 2017.  At the commencement of the hearing the parties announced that they had agreed that the Secretary would make several documents available with less redactions than those supplied previously.  I made orders permitting the reviewable decision to be altered in accordance with the agreement reached.

3. Mr Mitchell then requested that I recommend to the Attorney-General that his costs in relation to the proceedings be paid by the Commonwealth.

4. I have decided not to make the recommendation sought.  My reasons for this decision follow.

   LEGISLATION

5. Section 66 of the Act provides, in part:

   (1)Where:

   (a)a person applies, under section 57A, to the Tribunal for review of a decision of the Information Commissioner on an IC review; and

   (b)the person is successful, or substantially successful, in his or her application for review;

   the Tribunal may, in its discretion, recommend to the responsible Minister that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.

   (2)Without limiting the generality of the matters to which the Tribunal may have regard in deciding whether to make a recommendation under subsection (1), the Tribunal shall have regard to:

   (a)the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant;

   (b)the question whether the decision of the Tribunal on review will be of benefit to the general public;

   (c)the question whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal; and

   (d)the reasonableness of the decision reviewed by the Tribunal.

   MR MITCHELL’S ARGUMENT

6. Mr Mitchell was an employee of the Department who suffered a psychological injury during the time of his employment.  Subsequent to the injury the Secretary withdrew Mr Mitchell’s security clearance.  Mr Mitchell suspects that this action was taken as a result of the circumstances leading up to his injury.  He wishes to seek re-instatement of his security clearance and needs further information as to the circumstances which led to its withdrawal so he can properly address that issue.

7. In May 2016 Mr Mitchell applied under the Act for access to “all third party reports made about myself, held by AGSVA”.[1]  In response to this request the Secretary released three documents, some with redactions.

   [1] “AGSVA” refers to the Australian Government Security Vetting Agency.

8. In June 2016 Mr Mitchell requested an internal review of the Secretary’s decision.  In July 2016 further documents were released to Mr Mitchell; access was denied to other documents.

9. In October 2016 Mr Mitchell applied to the Australian Information Commissioner for review of the Secretary’s decision to deny him access to the remaining documents sought by him.

10. In April 2017 the Commissioner decided that the Secretary’s decision that certain documents and parts of documents were exempt from production was correct.  Mr Mitchell then applied to the Tribunal to review the Secretary’s decision.

11. Counsel for Mr Mitchell argued that the delay in making available the final batch of documents until the date of the hearing had caused unnecessary financial hardship to Mr Mitchell who needed the information to endeavour to secure employment.

    CONSIDERATION

    The applicable principles

12. The approach which should be taken to considering an application under section 66 of the Act is set out in detail in the Tribunal’s decision in “WAJ” and Commonwealth Ombudsman.[2]I respectfully adopt the reasoning of former Deputy President, Associate Professor Hotop, in that decision.

    [2] [1999] AATA 13.

    There is no presumptive entitlement to costs in the Freedom of Information jurisdiction

13. In Re Paterson and Department of Arts, Heritage and Environment (No 2)[3] Deputy President Hall referred to the discretionary power given by section 66 as follows:

    The nature of the discretion conferred upon the Tribunal is quite inconsistent, in my view, with any notion of a presumptive entitlement to costs in every case of success. Parliament clearly intended that the Tribunal should weigh the circumstances of each case, in the light of the specified and any other relevant considerations, in order to decide whether or not a recommendation should be made.

    Was Mr Mitchell “successful, or substantially successful, in his application for review”?

    [3] (1985) 8 ALD 227 at 234.

14. In accordance with section 66 an applicant must show success or substantial success in an application before the discretion to make a recommendation in relation to costs arises. The success or otherwise of an application may be assessed qualitatively, as well as quantitatively.

15. In Re Lianos and Secretary, Department of Social Security (No 2) Deputy President Hall said, in part:

    The applicant’s success in this regard is not necessarily measured by the number of documents or the number of pages or words released. Information varies in quality from the most mundane and inconsequential at one extreme to information of considerable commercial value or of great benefit to the general public at the other. In my view, therefore, there is both a quantitative and qualitative element in evaluating the extent to which the applicant has “succeeded” in his application for review.[4]

    [4] (1985) 9 ALD 43 at 46.

16. Prior to his initial application for access to the documents Mr Mitchell suspected that they would relate to an incident which gave rise to his injury at work.  The documents which were provided prior to his application to the Tribunal were considerably redacted and provided very little information to enable Mr Mitchell to determine the facts which gave rise to the withdrawal of his security clearance.

17. The two documents which were provided at the commencement of the hearing were copies of documents previously provided but with less redactions.  Nevertheless, the significant parts of both documents, under the headings “Details / Action taken” remained redacted.

18. The additional words disclosed were as follows:

    ·“Person of Interest” following the words “Occurrence Type”;

    ·“Initial information of [words redacted] was passed to Australian Federal Police Communications Centre (AOCC) by AFP Duty Operations Manager. Subsequent communications about the matter were established between AOCC and [words redacted]. Proposed response from AFP personnel at Defence Headquarters is to respond to reports of [the Applicant] at Defence Establishments” under the heading “Details / Action taken”;

    ·“Respond to reports of [the Applicant] at Defence Establishments” following the words “Result / Outcome”;

    ·Under the heading “Details / Action taken”: “[words redacted] then brought the matter to the attention of the local security officers.

    ·After this [words redacted] then chose to notify AFP at Defence Headquarters.

    ·[words redacted] recommended to [words redacted] that the USO or Manager for [the Applicant] be notified of the circumstances of the encounter for internal action as a first step to any remedial or other action deemed appropriate”;

    ·“Report drafted of known POI encounter with Defence employee compiled in DSA report format for information only” following the words “Result / Outcome”.

19. I accept that the additional material provided confirmed Mr Mitchell’s suspicion as to the reason his security clearance was withdrawn.  Considering the information released at the last minute it is difficult to understand why it was not released at a much earlier time.  Nevertheless the Secretary maintained the exemption over most of the substantive entries as to the details and action taken.  On this basis I am not satisfied that Mr Mitchell has been either “successful, or substantially successful” in his application.  It follows that the discretion to make a recommendation as to costs is not enlivened.

    Lack of information as to the matters to which the Tribunal would have been required to have regard had the discretion been enlivened

20. Subsection 66(2) requires the Tribunal to have regard to certain matters in exercising its discretion, although the list is not exhaustive.

21. An applicant asking the Tribunal to exercise the discretion given by section 66 should provide evidence to enable the Tribunal to properly consider the questions raised by the subsection. This is particularly so in relation to the questions of any financial hardship and/or commercial benefit to the applicant.

22. In this matter, should I have been required to exercise the discretion I would have had insufficient information to reach a conclusion favourable to Mr Mitchell.

    CONCLUSION

23. The application that the Tribunal recommend to the Attorney-General that the Commonwealth pay the costs of Mr Mitchell in relation to these proceedings will be refused.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate

Dated: 7 February 2018

Date(s) of hearing:	9 November 2017
Solicitors for the Applicant:	Ian Collins Solicitor
Solicitors for the Respondent:	Australian Government Solicitor