O'Brien and Comcare

[2005] AATA 517

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 517

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1682

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL O'BRIEN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member M D Allen

Date3 June 2005

PlaceSydney

Decision The decision under review is affirmed.

........(Sgd)...M D ALLEN.................

Senior Member

CATCHWORDS

Freedom of Information -  Application for release of documents containing statements about the applicant on the file of a fellow employee– exemptions claimed on the grounds of legal professional privilege, personal privacy and that the documents are internal working documents – exemptions upheld.

Safety, Rehabilitation and Compensation Act 1988 s 4, 14, 52. 68, 69 and 74

Freedom of Information Act 1982 s 4, 36, 4, 42 and 45

Evidence Act 1995 (Cth) sections 117 to 126
Freedom of Information Amendment Act 1991

Re Dwyer and Department of Finance and Ors (1985) 8 ALD 474

Re Windsor and Australian Postal Corporation (1991) 22 ALD 401

Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49
Vance v Air Marshall McCormack and Anor [2004] ACTSC 78
Re McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365
Australian Hospital Care (Pindara) Pty Ltd  v Duggan [1999] VSC 131
Colakovski v Australian Telecommunications Corporation (1991) 23 ALD 1
Ward v Centrelink [2005] FCA 73
Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCA 55
Re Shewcroft and Australian Broadcasting Corporation (1985) 2 AAR 496
Re Williams and Registrar Federal Court of Australia (1985) 8 ALD 219
Wiseman v The Commonwealth of Australia (unreported Full Federal Court) G167 of 1989, 24 October 1989
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Re Subramanian and Refugee Review Tribunal (1997) 44 ALD 435

REASONS FOR DECISION

3 June 2005   Senior Member M D Allen   

1. The Respondent is a body corporate established pursuant to sections 68 and 74 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) and pursuant to section 69 of that Act, one of its functions is to “make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act”, in other words its duties include the making of decisions with regard to claims for compensation by Commonwealth employees in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment (s14 SRC Act).

2.      By application made the 23^rd day of December 2004, the Applicant sought review of a decision by the Respondent to deny access to certain documents held by it. The withheld documents are documents containing statements about the Applicant which documents are held in a file pertaining to a claim pursuant to the SRC Act by a Julie Ann White also known as Julie Ann Mallens.

3.      The original request  was phrased thus:

“…I request a copy of all documentation Comcare holds that contains statements about myself from both my workers compensation file and the file for Julie Ann White/Mallens…”

4.      The Applicant has been provided with copies of all documents contained in his own compensation file but the Respondent has held documents in Ms White/Mallens file are exempt from disclosure.

5.      Ms White/Mallens made a claim for compensation on 23 July 2001.  That claim was based upon an allegation of sexual harassment by the Applicant alleged to have occurred on 7 May 2001.

6.      The actual allegations by Ms White/Mallens are contained in an incident report prepared by her and lodged with the Respondent which report is dated the 30 July 2001.

7.      Confidential Exhibit 1 in these proceedings contains the documents in dispute and I have perused those documents. Also within confidential Exhibit 1 is a schedule of documents and the grounds upon which exemption is sought.

8.      Broadly speaking the documents can be said to fall within four broad classes, namely:

i.communications by Ms White/Mallens or her solicitors to the Respondent;

ii.medical reports relating to Ms White/Mallens;

iii.legal advice sought by the Respondent regarding Ms White/Mallens’ claim;

iv.internal working documents regarding the claim.

9.      The Respondent bases its claim for exemption upon the following provisions of the Freedom of Information Act 1982 (“FOI Act”) namely sections 36, 41 and 42. Those sections so far as is relevant read:

“SECT 36

Internal working documents

(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:

(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and

(b)  would be contrary to the public interest.

…

SECT 41

Documents affecting personal privacy

(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person…

SECT 42

Documents subject to legal professional privilege

(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

…”

10. At the outset, a distinction must be drawn between disclosure under the FOI Act and disclosure in the course of curial proceedings. Disclosure under the FOI Act is disclosure to the public at large (see Re Dwyer and Department of Finance and Ors (1985) 8 ALD 474 at 482) and there can be no restraints upon the use of the disclosed material, unlike material obtained by discovery (and no doubt subpoena) in civil litigation (see Re Windsor and Australian Postal Corporation (1991) 22 ALD 401 at 405).

11. Any claims for legal professional privilege, refer to the common law doctrine of legal professional privilege and not what is termed in ss 117 to 126 of the Evidence Act 1995 (Cth) client legal privilege.  As was pointed out by the High Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, the common test for claiming legal professional privilege is the “dominant purpose” test.

12.     In passing, I would state that I see no question arising as to the question of whether legal professional privilege exists depending upon whether the lawyers involved had practising certificates or not.  The decision of Crispin J in Vance v Air Marshall McCormack and Anor [2004] ACTSC 78 was not followed by the President of this Tribunal in Re McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365 following Gillard J in Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131.

13. As to documents for which exemption is claimed pursuant to s 41 FOI Act, the term “personal information” is defined s 4 FOI Act as meaning:

“Personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”

14.     Although the Full Court of the Federal Court  in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 249 was concerned with the phrase “personal affairs of any person”, the judgment in this case still provides guidance as how ss 41 (1) should be applied. At p 436, Lockhart J with whom Jenkins and Heerey JJ agreed said:

“For myself I prefer the view that the “personal affairs” of a person within the meaning of ss 41(1) and 12(2) of the FOI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not. For example, a document may contain statements about a person’s private life in the sense that his personal life which is widely known in various sections of the community. Something may be notorious, but its notoriety does not deprive it of the character of information relating to a person’s “personal affairs”. Such a document would therefore prima facie answer the description of one which relates to the “personal affairs” of a person within s 41(1).”

15.     In Ward v Centrelink [2005] FCA 73 Mansfield J commencing at paragraph 27 referred to Colakovski (supra) and noted that that decision predated the amendments to ss 4 and 41 of the FOI Act in the Freedom of Information Amendment Act 1991 but continued:

“In summation, Lockhart J (with whom Jenkinson J and Heerey JJ agreed) stated at 438:

“This is not an appropriate case in which to examine definitively the circumstances that may constitute “the unreasonable disclosure of information” relating to a person’s “personal affairs” because the argument before us proceeded on the limited basis outlined previously. It is sufficient for present purposes to say that “every person” has a “legally enforceable right to obtain access” to documents under the FOI Act: s 11. There is no requirement that the person seeking access have proprietary or any other interest in documents or the information contained in them. The object of the Act, as expressed by s 3, is to give the “Australian community” the right of access to information in the possession of the Australian Government. What is “unreasonable” disclosure of information for purposes of s 41(1) must have as its core public interest considerations. The exemptions necessary for the protection of “personal affairs” (s 41) and “business or professional affairs” (s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided the other conditions mentioned in sections 41 and 43 are satisfied. An examination of the other provisions of Part IV of the Act concerning exempt documents confirms this approach.”

Heerey J, at 441, added the following comments with respect the issue of “unreasonableness”:

“Turning to the criterion of unreasonableness prescribed by the s 41 (1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public.  I do not think it is necessary in order to make out the s 41 (1) exclusion that there is some particular unfairness, embarrassment or hardship which would Inure to a person by reason of the disclosure.  Such matters, if present, would doubtless weigh in favour of exclusion.  But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.”

In Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCA 55 (Kristoffersen), Kiefel J, after discussing the Full Court’s decision in Colakovski stated at [28]:

“Section 41 (1) cannot in my view simply be waived by the person to whom the information or opinion relates, in particular because it extends to opinions expressed about that person.   Whether disclosure is to take place depends then upon whether it is regarded as unreasonable.  In that connexion the Tribunal applied the reasoning of Heerey J in Colakovski (at 440-441), holding that the documents containing the opinions were supplied on the basis that they remain confidential and their disclosure would cause embarrassment or distress to them.  It may be that the Tribunal has understated the potential effects upon the authors if disclosure were to occur, but no legal error is disclosed in its reasoning on this point.”

16.     As to what might be an unreasonable disclosure of personal information the first consideration is that whereas the motives of the person seeking disclosure are irrelevant (see Re Shewcroft and Australian Broadcasting Corporation (1985) 2 AAR 496), at the same time it must be recognised that disclosure is to the world at large, Re Williams and Registrar Federal Court of Australia (1985) 8 ALD 219. What is or is not reasonable is a question of fact and degree which calls for a balancing of all the legitimate interests involved, see Wiseman v The Commonwealth of Australia (unreported Full Federal Court G167 of 1989, 24 October 1989).  Further, the Court in Wiseman (supra) said that the Administrative Appeals Tribunal had made no error of law when it followed Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at p 259 in particular the passage stating:

“Whether a disclosure is “unreasonable” requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance.  Plainly what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.”

17. Although not relied upon by the Respondent in its decision, I believe that s 45 FOI Act also has application in this matter. Section 45 reads inter alia:

“Documents containing material obtained in confidence

(1) A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.

…”

18.     In Wiseman (supra) the Full Court said of this section:

“..Information provided by an individual with respect to his or her private affairs, including financial information is, prima facie, inherently confidential…In our opinion, it was at least open to the Tribunal to imply a pledge of confidentiality in the present case.”

The same comments are entirely apposite with regard to medical information including rehabilitation programs. 

19.     I am of the opinion that the various medical reports and solicitors letters forwarded to the Respondent by or in relation to Ms White/Mallens are exempt from disclosure on this ground also as clearly they were provided with an understanding that they would be confidential as between Ms White/Mallens and the Respondent.

20. Exemption for other documents was claimed pursuant to s36 FOI Act. In Re Subramanian and Refugee Review Tribunal (1997) 44 ALD 435 the Tribunal (DP McMahon) said at page 440:

“In my view, the documents are neither deliberative in nature, nor do they form part of a deliberative process.  They do not demonstrate an agency’s assessment of competing arguments or considerations; they do not deal with the development of any policy or with the expediency of any proposal.  They are in the nature of complaints that were subsequently dealt with.  In my view, it would be stretching the meaning of language to regard them as deliberative documents.”

21.     Applying that criteria some of the documents are not “deliberative” in the sense that term is used in Re Subramanian (supra) however, they invariably refer to matters personal to Ms White/Mallens and are therefore exempt from release on that ground.

22. During the hearing, I had some doubts as to the exemption claimed for document number 1, the incident report prepared by Ms White/Mallens. Section 53 of the SRC Act states inter alia that a notice in writing of injury is to be given to the “relevant authority” as soon as practicable after the employee becomes aware of the injury. For the purposes of any claim by an employee of the Australian Tax Office such as Ms White/Mallens, the relevant authority is Comcare (see s 4 SRC Act).

23.     Annexure B of Exhibit R2 is a copy of a document outlining Comcare’s privacy policy.  At paragraphs 7.1 and 8.1 it is stated:

“7.1 Comcare’s commitment to privacy is to be publicly stated on its website and through appropriate publicly available documents.

8.1 All forms and other documents used by Comcare should contain clear and simple statements that explain what personal information Comcare collects and why it does so. These are known as IPP 2 notices.  Staff involved in forms design are to ensure that IPP 2 notices are reviewed, to confirm they are adequate, accurate and up to date.”

Given this statement of policy, I accept that documents forwarded to the Respondent by any applicant for compensation or on the instructions of such an applicant would have been forwarded in the belief that they would be treated as confidential.

24.     In any event, it is not difficult to understand that the content of a person’s workers compensation file contains material that is personal information about that person and that its release would be unreasonable.

25.     Having perused the documents, I do not regard any as being capable of partial release with excisions of restricted parts.  To do so would render the said documents unintelligible. The decision under review is therefore affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         (E.Pope)           .....................................................................................
  Associate

Date/s of Hearing  20 May 2005
Date of Decision  3 June 2005
Applicant  Self represented 
Counsel for the Respondent     Mr D.B. Beukes
Solicitor for the Respondent     Phillips Fox