Pemberton and CSIRO - [2002] AATA 492

DECISION AND REASONS FOR DECISION [2002] AATA 492

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/549 and Q2001/1100

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Dr JOHN PEMBERTON
  Applicant
           And    CSIRO
  Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date21 June 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................(Sgd).......................
B J McCabe
Member
CATCHWORDS
FREEDOM OF INFORMATION – whether a proper search for records made – whether reasonable search conducted - exempt documents – personal information contained in documents – meaning of 'personal information' – whether release of documents is in the public interest

Freedom of Information Act 1982

Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138
Re Beesley and Commissioner of Taxation [2001] AATA 476
Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111
Department of Social Security v Dyrenforth (1988) 80 ALD 533
Re Luton and Child Support Registrar [1999] AATA 808

REASONS FOR DECISION

21 June 2002 Mr B J McCabe, Member
Introduction

Dr Pemberton has sought review of a decision by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) to claim an exemption under s 41 of the Freedom of Information Act 1982 in respect of documents containing names of persons who were tested by the CSIRO for exposure to the Hendra virus. He has also questioned the adequacy of the CSIRO's search of its records. He believes there must be other documents in existence that relate to his requests. He made two separate FOI requests seeking a wide range of documents, although the focus of his interest was the names of those individuals who were tested. His appeals in relation to each request were dealt with together.
Background Facts
The following summary of facts is based on the written submissions of Dr Pemberton and upon his sworn testimony. Dr Pemberton is a member of the faculty of the Department of Microbiology at the University of Queensland. He was also the chair of the University's Bio-safety committee until the committee was restructured in 1998. Under Dr Pemberton's leadership, the committee apparently had responsibility for oversight of safety and ethical issues arising in the laboratories at University of Queensland.
The University has a number of laboratory facilities and it carries out a wide range of research. As I understand it from Dr Pemberton's evidence, laboratories are classified under the relevant Australian Standard into four levels. The highest level of classification, PC 4, is reserved for the most dangerous material. The deadly Ebola virus is an example of a class four pathogen that must be dealt with in a PC 4 laboratory where appropriate precautions can be taken to ensure containment and avoid contamination. Less dangerous material can be dealt with in laboratories with a lower classification.
The University did not have a PC 4 laboratory during the time Dr Pemberton was chairing the Biosafety committee. Indeed, there were no PC 4 laboratories in Queensland at the time, he said.
In 1994, horse trainer Vic Rail and twenty of his horses died after becoming contaminated with a new virus. The virus was subsequently named the Hendra virus. There have been periodic outbreaks of the Hendra virus elsewhere in Queensland since Vic Rail's death. The Australian Microbiological Standards Committee has classified the Hendra virus as a class 4 pathogen, alongside Ebola and other extremely dangerous organisms.
The Hendra virus was obviously of considerable interest to researchers at the University of Queensland. But the CSIRO advised the University's ethics officer by letter dated 21 December 1995 that work on the live Hendra virus should only be carried out in a high containment PC 4 laboratory. The letter included a warning that exposure to the live virus was a major concern since "[a]t present there is no treatment and infection could be fatal".
In 1996, researchers at the University of Queensland acquired a stock of Mossman and J viruses for research purposes. It turned out that the viruses were contaminated with Hendra virus. Dr Pemberton says that many people – staff, faculty and students – may have been exposed to the contaminated samples. As chair of the Biosafety committee, he says he was concerned there had been a serious breach of procedures. He says he fears there was a serious risk to public health. He also says the incident was covered up by the University and other state agencies. The applicant says the University authorities did not respond appropriately to the situation by testing persons who may have come into contact with the virus. He says that only a very small number of people were tested – although he adds he was initially told that no tests were carried out because none were required. He contrasts this approach unfavourably with the respondent's comprehensive response to at least one incident in one of its own high security laboratories.
The applicant says samples drawn from individuals who might have been exposed to the Hendra virus at the University of Queensland were tested at the respondent's laboratories in Geelong.
Dr Pemberton has been endeavouring to uncover what he believes is the truth behind the Hendra incident at the University of Queensland. He has used the Queensland freedom of information legislation to obtain documents from the University and from other government departments. He requested documents from the CSIRO under the Commonwealth legislation so that he could continue his search. His immediate purpose is to disprove the claims he said were made by officials within the University of Queensland that no one had been tested for exposure to the virus, because there was no problem. In particular, he made FOI requests of the CSIRO on 30 November 2000 and 7 August 2001. The respondent provided some documents in response to the requests, but sought to rely on the exemption in s 41 in relation to some of the documents.
The applicant sought internal review of the decision. He has now approached the Tribunal. He says the respondent should give him access to the names of the persons who were tested for exposure to the Hendra virus. He also raises questions about the adequacy of the search conducted by the respondent.
Dr Antony Della-Porta swore an affidavit on behalf of the respondent. He is the manager of Technical Support Services at CSIRO Livestock Industries, part of the Australian Animal Health Laboratory. Dr Della-Porta described the scope and extent of the search for documents carried out by the CSIRO in response to the applicant's FOI requests. He was also briefly cross-examined by the applicant. That search apparently extended to e-mail servers and to different offices within the CSIRO. The respondent went to the extent of writing a special searcher program to interrogate its databases in an effort to find relevant material. I was told the search took a great deal of time and consumed many thousands of dollars of resources.
The Freedom of Information Legislation
Section 11 of the Freedom of Information Act 1982 creates a legally enforceable right (subject to the Act) of access to documents, other than exempt documents. It is not a right of access to information as such – it is a right to access the physical records of that information. The definition of documents in s 4 is extensive. It includes information stored electronically, such as e-mails stored on a server. The legislation obliges the Minister or agency to respond to requests for access to documents: s 15. Part IV of the Act creates a series of exemptions from the obligation.
Was a Proper Search Made?
Subject to the Act, it is necessary for the Minister or agency to make a proper search for the documents that have been requested. The applicant doubted whether an adequate search had been made. He said he found it hard to believe the respondent was unable to identify more documents. He said he was particularly interested in e-mail communications. He said the content of e-mails should have been searched as well as the titles or headings.
Dr Della-Porter's affidavit provides an answer to those criticisms. It describes an extensive search process, carried out over an extended period of time. New programs were written to facilitate and refine the searches. Dr Della-Porter said he could not guarantee that relevant documents did not exist, but he said the respondent was unable to find them. Mr Cavanough QC (Counsel for the respondent) indicated that if the applicant were able to supply additional and more specific information, a further effort might be made – although he added that a great deal of time and resources had already been expended in satisfying the requests.
Section 24A effectively imposes a requirement that the Minister or agency make a reasonable search. Section 24A provides:
"An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency's or Minister's possession but cannot be found; or
(ii) does not exist."

In Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138, the Tribunal considered the Macquarie Dictionary definition of the word reasonable and approved the following meaning:
"…4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate…5. Of such an amount, size, number, etc, as is judged to be appropriate or suitable to the circumstances or purpose…Of a fair, average, or considerable amount, size, etc…" (See also Re Beesley and Commissioner of Taxation [2001] AATA 476 at para 49ff).

I am satisfied on the strength of Dr Della-Porter's evidence that CSIRO is entitled to rely on s 24A. Reasonable steps have been taken to find documents, and the respondent can properly be satisfied on the basis of its search that the documents cannot be found (without more information that it does not currently possess, in any event) or they do not exist. To require it do more than it has already done would be excessive.
Is the Exemption for Personal Information Properly Available in this Case?
Section 22 of the Act permits the agency or minister concerned to delete information from a document if the document would otherwise be exempt, or where the information is irrelevant to the request. Section 22(1) creates a presumption that the applicant should be given the document albeit with some of its contents excluded if at all possible. Where material has been deleted from a document in accordance with s 22(1), s 22(2) requires that the applicant be informed of the deletion so the applicant is aware that he or she is not presented with a complete and intact copy. Section 61 says that where proceedings are brought in the Tribunal, the decision-maker has the burden of proving that any decision not to release a document in whole or in part was the right decision.
Part IV of the Act contains the grounds for exemption. Many of the grounds for exemption are obvious enough: for example, s 34 permits an exemption to be claimed in respect of cabinet documents, and s 42 creates an exemption for documents that are the subject of legal professional privilege. Section 41 contains the exemption relied on this case. Section 41(1) provides:
"A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person)."

The expression 'personal information' is defined in s 4 to mean:
"…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."

The applicant is clearly seeking personal information about individuals. The samples and the records in relation to them are not necessarily identified with an individual's name. The CSIRO often receives samples that have an identifying code or number but no personal particulars that identify the source of the sample by name. But given the small number of individuals who have been tested for exposure to the Hendra virus (about 100 people from Queensland, according to Mr Cavanough) it is possible that an individual might be identified.
Mr Cavanough argued that being tested for exposure to a dangerous virus forms part of an individual's private medical history. An individual's medical history, he suggested, is the quintessential example of personal information. That approach accords with the views of Lockhart J in the Full Federal Court in Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111. In that case, his Honour said (at 119) "…it would be inappropriate to attempt to define the meaning of 'personal affairs' in some definitive way" (see also Department of Social Security v Dyrenforth (1988) 80 ALR 533). His Honour added that 'personal affairs' (the wording of the section has changed, although little appears to turn on that: see, for example, Re Luton and Child Support Registrar [1999] AATA 808 at para 49) need not be confidential in the sense of being unknown in the wider community in order to attract the exemption. His Honour explained (Colakovski, at 118-119):
"I prefer the view that the 'personal affairs' of a person within the meaning of s 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 of 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 the 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)."

His Honour went on to find (at 119) that names and contact details of persons may constitute personal information within the meaning of s 41.
The mere fact that the document contains personal information does not justify its exemption from disclosure, however. The disclosure of the information must be unreasonable. The question of reasonableness in the context of s 41 was considered in Colakovski. Lockhart J said (at 120):
"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 took a similar view of the primacy of the public interest. His Honour explained (at 123):
"…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 enure 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."

After referring to authorities relating to the freedom of institution legislation in the United States, his Honour added (at 123-124):
"…a court having found invasion of privacy, must weigh against the seriousness of that invasion whatever gain would result to the public."

What are the public interest concerns at stake in this case? There is obviously a general public interest in open and accountable government. Sunlight is a great disinfectant, and the Act is designed to shed as much light as possible on the operations of government. The specific incidents at the core of this case may be a good candidate for that scrutiny. Dr Pemberton alleges the University of Queensland has attempted to cover up an incident that posed a grave threat to public health. He argues that the information he seeks will confirm his suspicions – it will yield the 'smoking gun' that might ultimately lead to more scrupulous adherence to procedures designed to protect students, employees and the public health.
Mr Cavanough suggested Dr Pemberton was motivated at least in part by a desire to settle a score with a colleague, Professor Mackenzie. That may be so, but it is ultimately irrelevant. An individual's reasons (or the decision-maker's view of the individual's underlying reasons) are not to be taken into consideration: s 11(2). I have only referred to Dr Pemberton's arguments in so far as they articulate the public interest in access.
There are legitimate arguments against disclosure, however. The CSIRO has established a large and sophisticated (and expensive) laboratory facility. The services provided by the facility are of great value to those involved in research and treatment of a range of health problems in humans and animals. It may be that the facility is an important national asset. Mr Cavanough suggested that the utility of the laboratories (and perhaps the state of public health generally) would be compromised if it were forced to begin disclosing the identity of individuals who provided samples. Individuals might be reluctant to make use of the facility in future if they feared exposure in an FOI application. Scientists and researchers carrying out confidential but important research might also be reluctant to use the facility.
In any case, Mr Cavanough added, Dr Pemberton can raise his concerns with the appropriate Queensland authorities if he continues to have concerns. While Dr Pemberton appears to be suspicious of the commitment of the Queensland authorities to an investigation of the affair, the respondent's argument that it is only involved on the margins ("We haven't done anything except test some samples!" said Dr Della-Porter in his evidence) and suggests he should pursue other avenues for redress.
Conclusion
Dr Pemberton has raised serious allegations. He has diligently pursued those allegations in several different forums. The respondent has furnished him with some material, but I am satisfied that it has done enough. The search it undertook was adequate, and it is entitled to claim an exemption under s 41 to protect the identity of individuals who supplied samples, and the results of those tests.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member
Signed:         Sarah Oliver
  Associate
Date/s of Hearing  3 June 2002
Date of Decision  21 June 2002
The Applicant Appeared in Person
Counsel for the Respondent    Mr Cavanough QC
Solicitor for the Respondent    Australian Government Solicitor