Pemberton and Director-General, National Archives of Australia
[2015] AATA 115
•27 February 2015
[2015] AATA 115
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2014/0222, 0225, 0227, 0229, 0230, 0231, 0235, 0236, 0239, 0240
Gregory Pemberton
APPLICANT
And
Director-General, National Archives of Australia
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member
Date 27 February 2015 Place Canberra The decisions of the Director‑General, National Archives of Australia on 16, 17 and 18 December 2013 (as altered on 11 August 2014 and 13 February 2015) are affirmed.
.............................[sgd]...........................................
James Popple, Senior Member
CATCHWORDS
ARCHIVES — Access — personnel files — whether unreasonable disclosure of information relating to personal affairs — records include medical and other personal information — persons still of employable age — information of limited public interest — decision to deny access affirmed.
ARCHIVES — Access — weight to be given to policy — whether policy inconsistent with Archives Act 1983 — policy balances public interest — Tribunal to consider policy at time of decision — policy a relevant consideration.
LEGISLATION
Archives Act 1983, ss 2A, 3, 22A, 22B, 31(1A), 33(1)(d), 33(1)(g), 33(1)(j), 35, 38, 44, 53
Freedom of Information Act 1982, s 41
CASES
‘BA’ and Merit Protection Commissioner [2014] AICmr 9
Bleicher v Australian Capital Territory Health Authority (1990) 24 FCR 497
Chandra and Department of Immigration and Ethnic Affairs [1984] AATA 437
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606
Department of Social Security v Dyrenfurth (1988) 15 ALD 232
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Green and Australian Fisheries Management Authority (2004) 81 ALD 194
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277
Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325
Peninsula Anglican Boys’ School v Ryan (1985) 7 FCR 415
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Staats and National Archives of Australia [2010] AATA 531
Victoria Police v Marke (2008) 23 VR 223Wiseman v the Commonwealth [1989] FCA 434
REASONS FOR DECISION
James Popple, Senior Member
27 February 2015
Summary
I affirm the decisions of the Director‑General, National Archives of Australia to exempt parts of the files sought. Those parts are exempt under s 33(1)(g) of the Archives Act 1983 because their disclosure under that Act would involve the unreasonable disclosure of information relating to the personal affairs of the subjects of the files.
Background
The Archives Act establishes the National Archives of Australia[1] (the Archives) whose functions include “preserving and making publicly available the archival resources of the Commonwealth”.[2] The Archives must cause a Commonwealth record to be made available for public access[3] if the record:
·is in the “open access period”;[4]
·is in the care of the Archives or in the custody of a Commonwealth institution; and
·is not an exempt record.[5]
[1] Archives Act, s 5(1).
[2] Archives Act, s 2A(a)(ii).
[3] Archives Act, s 31(1).
[4] Whether a record is in the open access period depends on its type (a Cabinet notebook, a record containing Census information, or any other record) and the year in which it came into existence (or the year of the relevant Census). For records other than Cabinet notebooks and census information, the period before the start of the open access period is being progressively reduced from 30 years to 20 years after the record came into existence: see Archives Act, ss 3(1), 3(7), 22A and 22B.
[5] Archives Act, s 31(1A).
On 27 July 2013, Dr Gregory Pemberton applied under the Archives Act for access to some of the records in series A10160. The Archives online database describes this series as containing “the personal files of staff cadets attending the Royal Military College (RMC), Duntroon”.[6] Dr Pemberton sought access to records in this series relating to 11 named individuals who were staff cadets at the RMC in the 1970s. I will call these records the Duntroon files. The Duntroon files were then (and are still) in the open access period, and are in the care of the Archives. Each file contains documents; the Archives treats “each composite document within a file” as a separate record.
[6] Dr Pemberton says that these are more accurately characterized as “personnel files” than as “personal files”. See also note 28 below.
In these reasons, I will adopt the shorthand of referring to parts of a file or parts of a record—that is, parts of a document—as being exempt.[7] Strictly speaking, an entire record is exempt if any part of it contains specified information or matter.[8] The Archives may give access to part of an exempt record, without disclosing the information or matter that makes the record exempt, where it is reasonably practicable to do so.[9]
[7] An alternative approach would be to consider each page of each of the Duntroon files to be a separate record. (Those parts of the files that the Archives says are exempt are whole pages.) This approach would avoid the need to refer to parts of a record being exempt, but it would be artificial.
[8] Archives Act, s 33.
[9] Archives Act, s 38. On review, this Tribunal can direct that access be given in this way (s 44(7)).
On 26 and 27 November 2013, the Archives refused access to parts of each of the Duntroon files on the basis that those parts were exempt. On 3 December 2013, Dr Pemberton sought internal reconsideration of those decisions.[10] On 16, 17 and 18 December 2013, the Archives decided to release some further pages from each of the 11 Duntroon files, but otherwise affirmed the original decisions.
[10] Archives Act, s 42.
On 17 January 2014, Dr Pemberton applied under s 43(1)(a) of the Archives Act and s 29(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for review of those decisions. On 11 August 2014, Dr Pemberton, the Archives and the Tribunal consented, under s 26(1)(b) of the AAT Act, to the alteration of the decisions in relation to eight of the Duntroon files: the whole of one of the files was released as its subject had died; and some further pages were released from seven of the other files. On 13 February 2015, at the hearing, the parties consented to a further alteration of the decision in relation to one of those files: another page was released.
Decisions under review
The decisions under review are the Archives’ reconsidered decisions[11] on 16, 17 and 18 December 2013 (seven of which were altered on 11 August 2014; one of which was also altered on 13 February 2015) to refuse access to parts of ten of the Duntroon files, on the basis that those parts are exempt.
[11] The Archives’ decisions are taken to have been made by the Director‑General: see Archives Act, s 50 and [44]–[46] below.
Issues
The issues in this review are:
·whether, as the Archives claims, parts of the Duntroon files are exempt under one or more of the following provisions of the Archives Act:
os 33(1)(d)—disclosure that would constitute a breach of confidence;
os 33(1)(g)—unreasonable disclosure of information relating to personal affairs;
os 33(1)(j)—disclosure that would unreasonably affect a person’s business or professional affairs; and
·what weight, if any, I should give to the Archives’ policy on the application of the last two of these exemptions.
Because of s 51 of the Archives Act, the Archives has the onus of establishing that its decisions were justified.
The Archives’ policy
The Archives provided a document entitled Access Examination Policy—personal, business and professional affairs of a person (the policy). Its stated purpose is to set out the Archives’ policy for applying s 33(1)(g) and s 33(1)(j), and “to promote the management and release of Commonwealth records in an efficient, effective, economical and ethical way”. The policy was approved by an Assistant Director‑General of the Archives on 14 July 2014.
For each of s 33(1)(g) and s 33(1)(j), the policy paraphrases the exemption provision then discusses the “criteria” that comprise that exemption. For example, for s 33(1)(g) the policy identifies two criteria: “personal affairs of any person” and “unreasonable disclosure”. Its discussion of the first criterion includes a “non‑exhaustive list of some of the information and material that the Archives considers relate to personal affairs”. That list includes applications for employment; assessments of competency and intellectual capacity; character assessments; detailed or long term medical histories; and personnel records of people employed by the Australian Government.
Under the second criterion for s 33(1)(g), the policy says that “whether disclosure would be unreasonable must be determined having regard to all the relevant circumstances, bearing in mind the public interest in the protection of personal privacy”. It then discusses six factors which may be relevant to that decision “in addition to other factors”:
·What is the nature and perceived sensitivity of the information to be disclosed?
·What is the age and current relevance of the information?
·What is the age of the subject of the information?
·To what extent is the information already in the public domain?
·Does the information have a credible source?
·Are there cultural factors that should be considered?
Under the third factor (the age of the subject of the information) the policy sets out “parameters” to be “used as a guide” when making a decision about unreasonable disclosure:
·At 100 years of age it may be assumed that a person is deceased and subject to the matters noted below in relation to disclosure of information about deceased persons, the potential for unreasonable disclosure is low.
·Where a person is over 70 years of age it may be assumed that the person is not in the workforce; and
·Where a person is under 70 years of age it may be assumed that the person is employable.
The policy lists the same parameters, in its discussion of the s 33(1)(j) exemption, under the same criterion and the same factor.
What weight should be given to the Archives’ policy?
The Archives says that I should give the policy significant weight in this review.[12] Dr Pemberton says that I should give the policy no weight. He points out that the policy was approved almost a year after his application for access to the Duntroon files, and more than six months after the decisions under review.[13] He also says that the policy marked a “sudden change” in the Archives’ practices.
[12] Citing Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325 at 331 per Franki J, referred to in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 207–208 per French and Drummond JJ. I note that both of those decisions involved policies made by a minister. The Archives’ policy was made under the authority of the Director‑General. That does not mean that the policy cannot be given weight in this review: see, for example, Green and Australian Fisheries Management Authority (2004) 81 ALD 194 at 241 [56] per Hotop DP.
[13] As explained in [6] above, seven of those decisions were altered a few weeks after the policy was approved. But, as explained in [17] below, nothing turns on whether the policy was approved before or after the decisions.
The Director‑General of the Archives concedes that the policy reflects a “new more restrictive approach” to the release of information. He says that, soon after becoming Director‑General early in 2012, he came to the view that the Archives needed a “fresh policy”. He was concerned that the Archives’ then policy and practices did not have enough regard to the phased transition from 30 years to 20 years for the commencement of the open access period;[14] changes in information technology and the ubiquity of the Internet; and changes in social expectations regarding privacy.
[14] This amendment was made to the Archives Act by the Freedom of Information Amendment (Reform) Act 2010 with effect from 1 November 2010.
The Director‑General says that the Archives started developing the policy in 2012, and that it was developed following extensive consultation within the Archives and with stakeholders. By late 2012, he says, he had decided “that it was appropriate for [the Archives’] staff to begin to apply a more restrictive approach to the release of personal and professional affairs information, paying particular attention to the age of the individual involved”. Although the policy was not approved until July 2014, the Archives says that the policy is consistent with what its practices have been since before Dr Pemberton applied for access to the Duntroon files a year before that. The Assistant Director‑General characterized those practices as “applying a more critical approach to [the] release of information, with particular reference to the age of records and whether the person concerned was likely to be in the workforce, or still living”.
Even though the policy was finalised after the Archives made the decisions under review, and even if the policy represents a change from the Archives’ previous practices, I must take the policy into account in this review. Unless there is legislative provision to the contrary—and there is none in the Archives Act—I have to make the correct or preferable decision having regard to the facts and circumstances as they are now.[15] The policy is part of those circumstances. It does not have the status of legislation,[16] but this Tribunal “is entitled to treat such government policy as a relevant factor”[17] in coming to a decision on review.
[15] Shi v Migration Agents Registration Authority (2008) 235 CLR 286. See also Peninsula Anglican Boys’ School v Ryan (1985) 7 FCR 415 in which Wilcox J held that the decision maker could have regard to newly made policy guidelines about school funding (see especially at 417, 424).
[16] The Archives does not say that the policy is an “arrangement” made under s 35(1) of the Archives Act. Even if it were, a determination cannot be made under such an arrangement if it is inconsistent with a decision of this Tribunal on review (s 35(5)).
[17] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69 per Bowen CJ and Deane J. However, their Honours explained that that does not mean “merely determining whether the decision made conformed with whatever the relevant government policy might be” (at 70).
One of the reasons why the Tribunal has regard to government policy is to encourage consistency in decision making.[18] To the extent that the policy represents a change from the Archives’ previous policy and practices, its continued application will encourage decisions that are consistent with each other, albeit inconsistent with previous decisions.
[18] See, for example, Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639 per Brennan J.
Dr Pemberton also says that the policy should be given no weight because it is “at odds with the spirit of the [Archives] Act”. He says that the application of the policy has caused a considerable increase in the amount of material that the Archives has decided is exempt, compared to its previous practices. This, he says, means that the policy is contradictory to the Archives Act’s object of “making publicly available the archival resources of the Commonwealth”.[19] But that object is not absolute. It is qualified by provisions of the Archives Act itself, which prohibit the Archives from making some material—exempt material—publicly available. Even if the policy has led to an increase in the amount of material exempted (which would be expected of a policy that is “more restrictive” than previous practices), the policy is not necessarily inconsistent with the Archives Act.
[19] Archives Act, s 2A(a)(ii).
In my view, the policy is consistent with the Archives Act. It accurately summarises the relevant exemption provisions, and provides guidance for decision makers in the application of those exemptions. Importantly, the policy is not directive: it does not fetter a decision maker’s discretion to decide whether the exemptions apply.
In several places,[20] the policy makes it clear that a decision maker is intended to use the policy “as a guide” and “having regard to all the relevant circumstances”. The policy says that “it may assist to consider the following” specified issues, and that “[i]n some cases it may be appropriate” to exempt certain information. But the policy comes close to being directive in two places. The “non‑exhaustive list of some of the information and material that the Archives considers relate to personal affairs” is discussed at [11] above. Some of the information listed (for example, “financial information” or “information given in confidence”) will not always relate to personal affairs, because it may not relate to a natural person at all. I do not think that a decision maker would feel constrained to always decide that information of a type listed relates to personal affairs. Given the context of the policy as a whole, the list is clearly intended to be for guidance only.
[20] Some of them are quoted or paraphrased at [10]–[13] above.
The policy otherwise comes closest to being directive when it says that “[i]t would generally be unreasonable to release comments made about a person that would be considered by a reasonable person to be offensive or likely to cause distress and do not appear to come from a credible source”. But this does not restrict a decision maker from deciding, in appropriate circumstances, that the release of such comments would not be unreasonable. The use of the word “generally” and, again, the context of the policy as a whole, make it clear that this part of the policy is also intended as guidance. The policy does not preclude a decision maker from taking into account relevant considerations, or involve a decision maker in taking into account irrelevant considerations.[21]
[21] See Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at 289 [24] per Gleeson CJ.
The policy is intended for use by delegates of the Director‑General when deciding whether to release records for public access. There is no requirement in the Archives Act for the Archives to consult with a person who is the subject of a record before releasing it. It would usually be impractical for the Archives to do so. This means that an Archives’ decision maker will often not know whether such a person is still employable, or even still alive, before having to decide whether releasing the record would be an unreasonable disclosure of information relating to that person’s personal affairs, or would unreasonably affect their business or professional affairs. (As noted at [6] above, the Archives released one of the Duntroon files when it learnt during this review that the subject of that file had died.) The policy assists the decision maker to apply the exemptions to a record in circumstances where they may have little or no information about the current circumstances of the person who is the subject of that record. I think that, in doing so, the policy successfully strikes a balance between “the interests of good government and consistent decision‑making on the one hand and the ideal of justice in the individual case on the other”.[22]
[22] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206 per French and Drummond JJ.
In deciding whether the Duntroon files, or parts of them, are exempt, I must have regard to relevant provisions of the Archives Act, and case law about the meaning of those provisions. I must apply the legislation having regard to the circumstances that currently apply, and consider the arguments and evidence presented during the course of this review. The policy can be given some weight in that process.
Are parts of the Duntroon files exempt under s 33 of the Archives Act?
Those parts of the Duntroon files that the Archives says are exempt are whole pages. The Archives says that each of those pages is exempt under s 33(1)(g), and that some of those pages are also exempt under s 33(1)(d) or s 33(1)(j).
The Archives has provided the Tribunal with a copy of the Duntroon files, marked up to indicate the parts of the files that it claims are exempt.[23] Those copies comprise 131 pages, 91 of which are claimed to be exempt. I have examined all 131 pages. They are:
·applications (or parts of applications) for admission to the RMC;
·documents in support of those applications, including high school academic results and references from high school principals;
·“annual reports” and other reports of cadets’ progress at the RMC;
·correspondence with cadets’ parents about cadets’ academic progress;
·correspondence about cadets’ medical conditions;[24]
·correspondence about cadets’ financial affairs; and
·correspondence about deferring the awarding of a degree.
[23] I did not require the production of the Duntroon files under s 53 of the Archives Act (“Production of exempt records”). The Archives provided the files voluntarily, and I made an order as to their non‑disclosure.
[24] At the hearing, Dr Pemberton said that he does not seek access to “medical or psychological” reports.
Unreasonable disclosure of information relating to personal affairs (s 33(1)(g))
Section 33(1)(g) of the Archives Act provides that a Commonwealth record is an exempt record if it contains “information or matter the disclosure of which under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person)”.
There would appear to be no Federal Court or High Court authority on the meaning of this section. However, there has been judicial consideration of the meaning of “personal affairs” as that term was previously used in the Freedom of Information Act 1982 (the FOI Act). From its enactment in 1982 until 1991, s 41(1) of the FOI Act provided that “[a] document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).”[25] The analogy with s 33(1)(g) of the Archives Act is strong.
[25] On 25 October 1991, s 41(1) was amended by s 29(1)(a) of the Freedom of Information Amendment Act 1991 by omitting “information relating to the personal affairs of” and substituting “personal information about”. On 1 November 2010, s 41 was repealed by the Freedom of Information Amendment (Reform) Act 2010, and a new conditional personal privacy exemption (s 47F) was inserted into the FOI Act.
Dr Pemberton points out that the schemes of the Archives Act and the FOI Act are different. They both require the release of documents, subject to exemptions. But the requirement to release records under the Archives Act applies only to records that are in the open access period: for most records, the open access period starts 20–30 years after the record came into existence.[26] By contrast, the FOI Act applies to documents from the moment that they are created. I do not think that this difference weakens the analogy, though the age of a record will affect consideration of whether its disclosure would be unreasonable.
“Information relating to … personal affairs”
[26] See note 4 above.
In Colakovski v Australian Telecommunications Corporation, the Federal Court considered (and discussed earlier consideration of) the meaning of “relating to … personal affairs” in s 41(1) of the FOI Act.[27] In summary, “personal affairs”:
·cannot be defined in a definitive way;
·refers only to the affairs of a natural person and not to the affairs of a corporation;
·refers to information which concerns or affects the person as an individual, whether it is known to other persons or not; and
·may, in some circumstances, include information relating to a person’s vocation, work performance or capacity.
[27] (1991) 29 FCR 429 at 432–435 per Lockhart J, with whom Jenkinson J agreed and Heerey J generally agreed.
Each of the documents in the Duntroon files contains information relating to the personal affairs of the cadet who is the subject of the relevant file and, in some cases, the personal affairs of other people. Even from my summary of the contents of those documents (at [26] above), it is clear that that information concerns or affects the people in question as individuals. Some of the information relates to the cadets’ vocation, work performance or capacity, but it also relates to their personal affairs.[28]
“Unreasonable disclosure”
[28] In Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 at 625, Kirby P said that personnel records can concern personal affairs, though not if they are just “the name of an officer or employee doing no more than the apparent duties of that person”, the disclosure of which would disclose “not that person’s affairs but the affairs of the agency”.
For a record to be exempt under s 33(1)(g) of the Archives Act, the disclosure of information relating to a person’s personal affairs must be “unreasonable”. Whether or not disclosure would be unreasonable is a question of fact and degree which calls for a balancing of all the legitimate interests involved.[29]
[29] Wiseman v the Commonwealth [1989] FCA 434 per Sheppard, Beaumont and Pincus JJ.
There is also a public interest component. As Lockhart J said in Colakovski:
What is “unreasonable” disclosure of information for purposes of s 41(1) [of the FOI Act] 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.[30]
[30] (1991) 29 FCR 429 at 438. The exemptions that were then provided by ss 41 and 43 of the FOI Act did not have an express public interest component. The exemption in s 33(1)(g) of the Archives Act has no such component, either. Since 2010, the “personal privacy” exemption in s 47F of the FOI Act (about the “unreasonable disclosure of personal information”), which replaced the exemption in s 41, has been a conditional exemption. Under s 11A(5), access must be given to conditionally exempt documents unless that access would be contrary to the public interest.
In the same case, Heerey J referred to a different aspect of the public interest test:
Turning to the criterion of unreasonableness … 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 [exemption] 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.[31]
The Duntroon files have little, if any, relevance to the affairs of government. But, as the Archives concedes, there is scholarly interest in the files. I think that the release of the Duntroon files would do more than just excite or satisfy curiosity.
[31] (1991) 29 FCR 429 at 441 per Heerey J. The “public interest purpose of the legislation” that his Honour was referring to (the FOI Act) is similar to that of the Archives Act.
The Archives points out that disclosure under the Archives Act is effectively disclosure “to the world at large”: if the Duntroon files are not exempt, the Archives must make them available for public access.[32] This, the Archives says, is different to the FOI regime considered in the various authorities. It points to the Victorian Supreme Court’s decision in Victoria Police v Marke in which Maxwell P said that, “[w]here personal information is concerned, disclosure to the world at large will much more readily appear ‘unreasonable’ than disclosure of the same information to the [FOI] applicant alone”.[33]
[32] Archives Act, ss 31(1A), 31(1).
[33] (2008) 23 VR 223 at 231 [27]. The Court was considering the application of exemptions in the Victorian Freedom of Information Act 1982.
It is at least arguable that disclosure to a single FOI applicant is, and has always been, disclosure to the world at large.[34] But, in any event, changes in information technology mean that information, once released, can now be more easily, and more widely, disseminated than was the case only a few years ago. And that disseminated information can also be more easily found, through the use of search engines. These developments, and the possibility of more widespread dissemination, must be taken into account when deciding whether the disclosure of information relating to personal affairs would be unreasonable.[35]
[34] See, for example, ‘BA’ and Merit Protection Commissioner [2014] AICmr 9 at [67].
[35] See ‘BA’ and Merit Protection Commissioner [2014] AICmr 9 at [81].
As the Archives’ policy recognises, another aspect of the consideration of what is unreasonable disclosure is the public interest in the protection of personal privacy.[36] An increased level of community concern about information privacy led, in 2014, to substantial reform of the Privacy Act 1988.[37] This level of concern is greater now than it was when the Federal Court authorities referred to above were decided.
[36] See [12] above, and the words of Lockhart J in Colakovski quoted at [33] above. See also Chandra and Department of Immigration and Ethnic Affairs [1984] AATA 437 at [52] where Hall DP referred to the need to balance “the public interest recognised by the [FOI] Act in the disclosure of information in documentary form in the possession of an agency” against “the public interest in protecting the personal privacy of a third party”.
[37] See ‘BA’ and Merit Protection Commissioner [2014] AICmr 9 at [83]. The Privacy Act was significantly amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012, mostly with effect from 12 March 2014.
The Archives has obtained information about the current circumstances of some of the cadets who are the subject of the Duntroon files.[38] Some of them have expressed their views, in affidavit evidence to the Tribunal, about the negative effect that releasing their file would have upon them. The views of the subject of a file are, of course, not determinative, unless the subject consents to the disclosure. But this evidence is relevant to the question whether disclosure of the Duntroon files would be unreasonable. I give this evidence some weight in this review.
[38] The Archives says that it is not its usual practice to contact the subjects of records when making access decisions, as that would be too resource‑intensive. It did so in this case when Dr Pemberton filed his application for review with the Tribunal.
The Archives also provided affidavit evidence from the Chief of Army and from office holders of the Australian Defence Force Association, the Defence Force Welfare Association and Defence Families of Australia, about concerns that they have about the release of information like that contained in the Duntroon files. This evidence, too, is relevant to the question whether disclosure of the Duntroon files would be unreasonable. I also give this evidence some weight in this review.
I have already decided that I should give the Archives’ policy some weight in this review. The policy identifies six factors which (“in addition to other factors”) may be relevant to deciding whether disclosure would be unreasonable.[39] Four of those factors are particularly relevant to the Duntroon files:
[39] See [12] above.
·What is the nature and perceived sensitivity of the information to be disclosed?
The information in the Duntroon files includes cadets’ high school results; the opinions of their high school principals about cadets’ capacities; details of their progress at the RMC; and details of their medical conditions and financial affairs. This information is of variable sensitivity: I think that it ranges from slightly sensitive to moderately sensitive.
·What is the age and current relevance of the information?
The information in the Duntroon files is approximately 40 years old.[40] The policy says, “[t]he older the record, the less likelihood there is that it would be unreasonable to disclose any information it contains concerning the personal affairs of a person”. That will often be the case. However, in this review the age of the information is a reason why its disclosure might be unreasonable. For example, a comment made by an RMC Commandant about the capacities of a cadet may have only limited relevance to that person’s capacities 40 years later. The public interest in the protection of personal privacy will more easily outweigh the public interest in the disclosure of information that is of limited current relevance.
·What is the age of the subject of the information?
Eight of the ten files include the cadet’s date of birth. Those eight cadets are now aged between 59 and 61. The policy says that “[a]t 100 years of age it may be assumed that a person is deceased” and “[w]here a person is under 70 years of age it may be assumed that the person is employable”. I think that it is appropriate to assume that all ten of the cadets are alive and employable. Some of them are known to be still employed. This is relevant not just to the s 33(1)(j) exemption (disclosure that would unreasonably affect a person’s business or professional affairs); it is relevant also to the s 33(1)(g) exemption. The disclosure of personal information relating to a cadet’s professional capacities will be more unreasonable if the cadet is still employed.
·To what extent is the information already in the public domain?
None of the information in the Duntroon files that the Archives says is exempt is already in the public domain.
[40] I note that the Duntroon files would now be in the open access period even if there had been no change to the start of that period (see note 4 above). That change will, obviously, increase the number of records in the open access period that contain information relating to personal affairs whose disclosure would be unreasonable.
Having considered these factors, I think that disclosure of further information from the Duntroon files would be unreasonable. I have come to that view having also had regard to: the scholarly interest in the files; the ease with which the information can, if disclosed, be disseminated and found; and the increased level of community concern about information privacy.
Disclosure that would constitute a breach of confidence (s 33(1)(d)) and disclosure that would unreasonably affect a person’s business or professional affairs (s 33(1)(j))
The Archives also applied the exemptions in ss 33(1)(d) (disclosure that would constitute a breach of confidence) and 33(1)(j) (disclosure that would unreasonably affect a person’s business or professional affairs) to the Duntroon files, but only in relation to information that I have already decided is exempt under s 33(1)(g). So, I do not need to consider the application of s 33 (1)(j) or s 33(1)(d) in this review.
(Dr Pemberton argued that s 33(1)(g) and s 33(1)(j) could not both apply because information could not simultaneously relate to a person’s personal affairs and their professional affairs. These two categories of information are not mutually exclusive.[41])
[41] See Bleicher v Australian Capital Territory Health Authority (1990) 24 FCR 497 at 503 per Wilcox J, citing Department of Social Security v Dyrenfurth (1988) 15 ALD 232. See also Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 as summarised at [30] above, and at 436 per Lockhart J, who said that it would be too narrow a test to (as the Tribunal had done in that case) “consider whether the matters which would be disclosed are of a private nature relating to the individual, as distinct from being of a business nature or relating to his or her career”.
The respondent in this review
The decisions under review were made by staff of the Archives, under a delegation from the Director‑General. Until the hearing, the respondent in this review was the Archives. At the hearing, the question arose as to who should be taken to have made those decisions and, therefore, who was the appropriate respondent: the Archives or the Director‑General.
This question was considered in Staats and National Archives of Australia, in which the Tribunal decided that the Archives was the respondent.[42] The Tribunal considered provisions of the Archives Act and concluded that “the Director‑General acts ‘in the name of the Archives’ and not in his or her own name … The Director‑General does not make the decision in his or her own name and the duty to make it is not imposed upon the Director‑General but upon Archives”.[43]
[42] [2010] AATA 531 at [11]–[15] per Forgie DP.
[43] [2010] AATA 531 at [15] per Forgie DP.
The Tribunal in Staats did not refer to s 50 of the Archives Act, which provides that “[f]or the purposes of this Part [Part V, “Commonwealth records”] and of the application of the Administrative Appeals Tribunal Act 1975 in respect of proceedings under this Part, a decision given by the Archives is taken to have been given by the Director‑General”. With respect, I disagree with the Tribunal in Staats on this (minor) point. I think that s 50 means that the respondent is the Director‑General and not the Archives. I have directed that the name of the respondent in this review be changed accordingly.
I certify that the preceding 46 (forty‑six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple ................................[sgd]........................................
Associate
Dated 27 February 2015
Dates of hearing 12 and 13 February 2015 Applicant In person Counsel for the Respondent Mr Justin Hyland Solicitors for the Respondent Australian Government Solicitor
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