Petroulias and Commissioner of Taxation
[2010] AATA 1060
•23 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2010] AATA 1060
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5090
GENERAL ADMINISTRATIVEE DIVISION ) Re Nikytas Petroulias Applicant
And
Commissioner of Taxation
Respondent
DECISION
Tribunal Senior Member A K Britton Date23 December 2010
PlaceSydney
Decision The decision under review is affirmed.
....................[sgd]...................
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – character of application where named applicant asserts they are acting as agent for other parties – exempt documents – where documents contain information regarding third parties – relationship between the FOI Act and s 16(2) of the Income Tax Assessment Act 1936.
Freedom of Information Act 1982 – ss 22, 24, 38, 42, 56, 58
Income Tax Assessment Act 1936 – s 16Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Port of Brisbane Corporation v Deputy Commissioner of Taxation (2004) 81 ALD 549.
Re Collie & Deputy Commissioner of Taxation (1997) 45 ALD 556 at 563.
Hart and Deputy Commissioner of Taxation [2002] AATA 1190REASONS FOR DECISION
23 December 2010 Senior Member A K Britton 1. Mr Nikytas Petroulias seeks review of a decision made by the Commissioner of Taxation to refuse access to documents requested under the Freedom of Information Act 1982 (Cth) (“the FOI Act”). In a letter to the Commissioner dated 10 September 2009, Mr Petroulias requested all documents “between officers of the FOI of the Australian Taxation Officers … and ATO officers concerning how to respond to the FOI request … [made] on 20 June 2009” (“the FOI request”). The 20 June 2009 request (“the original FOI request”) sought a broad class of documents including those relating to an alleged decision made by the ATO to audit Mr Petroulias and his “perceived associates”. The original FOI request was stated to have been made by Mr Petroulias in both an “individual and principal/agency capacity”. Attached to the request was a document headed “Authority for purposes of Freedom of Information” signed by 13 “persons” including 11 corporate entities.
2. The FOI request was not determined within the time frame prescribed by the FOI Act, and the Commissioner was therefore deemed to have made a decision refusing access to those documents: s 56(1) of the FOI Act. On 17 December 2009, the Commissioner decided to grant Mr Petroulias access to 169 pages of documents and refuse access to the balance of the documents identified as falling within the scope of his request. The stated ground for that decision was that the documents were “exempt”. That decision was varied in April 2009 and additional documents were released to Mr Petroulias for which the Commissioner had previously claimed an exemption. The documents to which the Commissioner now refuses access, in whole or part, are listed in the affidavit prepared for the purpose of these proceedings by ATO officer, Mr Ian Shaw, (Exhibit R1, Annexure A).
3. The parties agree that the Commissioner’s most recent decision should be treated as the decision the subject of this review despite the fact that it post-dated Mr Petroulias’ application to the Tribunal. Therefore that is the decision I will review: s 56(5) of the FOI Act and s 26 of the Administrative Appeals Tribunal Act 1975 (Cth).
4. The Commissioner contends that all of the documents set out in the Annexure to Mr Shaw’s affidavit are “exempt” pursuant to s 37(1)(a) (prejudice conduct of an investigation into a breach or possible breach of the law), 38 (secrecy) or 42 (legal professional privilege) of the FOI Act. The Commissioner granted access to Mr Petroulias to some of those documents in redacted form, following deletions said to have been made in accordance with s 22 of the FOI Act.
5. Mr Petroulias has advised the Tribunal that he no longer seeks review of the decision to refuse access to the documents the Commissioner claimed were exempt under ss 37(1)(a) and 42 of the Act. Accordingly, the key issue now to be determined is whether any or all of the 12 documents the Commissioner claims are exempt under s 38(1) of the Act (“the disputed documents”) are so exempt and, if so, what if any deletions should be made pursuant to s 22 of the FOI Act. The Commissioner bears the burden of proving that the decisions made in relation to the disputed documents were justified. As noted, Mr Petroulias has been granted access to all of the disputed documents in redacted form.
6. A preliminary issue must first be determined — namely whether, as asserted by Mr Petroulias, the FOI request the subject of this review was in the nature of a request made by him and on behalf of 13 “co-applicants” or, as asserted by the Commissioner, was a request made by him alone.
Was the foi request a request made by mr petroulias alone?
7. Both parties contend that properly construed, the original FOI request, namely Mr Petroulias’ letter to the Commissioner dated 20 June 2009, together with the subsequent exchange of correspondence, supports their respective characterisation of the nature of the request. To put these submissions in context, it is necessary to sketch in the background to Mr Petroulias’ FOI request.
8. The original FOI request was in the form of a handwritten letter addressed to the Commissioner in which Mr Petroulias wrote:
I hereby, on both individual and principal/agent capacity, seek access to the documents referred to in this application in the form of [indecipherable] or properly redacted copies under the Freedom of Information Act.
I enclose herein authorisation signed by the various co-applicants, principals and/or agents whose documents and/or references to them in the same documents can be produced by you in response to two or more parties.
9. Attached to that letter was a document entitled “Authority ….” (“the Authority”). It read:
We understand one or more applications will be made by Nikytas Nicholas Petroulias (our agent/nominee), a person known to the Commissioner of Taxation, for the disclosure of documents which will include a request for the provision of tax payer information about or related to the undersigned (the principal(s)). This information my include the disclosure of information which my be considered to offend a section16 of the Tax Administration Act if otherwise disclosed.
The principat(s) hereby authorise the disclosure of all documents requested by the agent/nominee being for my own/our joint benefit. To the extent necessary to avoid any doubt, we hereby release the commissioner and any of his officers relating to the disclosure of the requested information.
We appreciate that this, form of authorisation has been previously acceptable to the Commissioner on applications relating to the agent/nominee in the past.
10. The original FOI request sought access to 17 categories of documents. In a letter to Mr Petroulias dated 1 September 2009, a delegate of the Commissioner advised that the scope of the original FOI request was “substantially wide” and foreshadowed that it might be refused under s 24(1) of the FOI Act. Section 24(1) provides that an agency may refuse a FOI request if satisfied that the work involved in processing it “would substantially and unreasonably divert the resources of the agency from its other operations”. As directed by s 24(6) of the FOI Act, the delegate invited Mr Petroulias, to narrow the scope of his request thereby removing the ground for refusal under s 24.
11. In a letter dated 10 September 2009 Mr Petroulias replied:
I firstly need to make an amendment to the FOI to include the following items:
…
“4.18 documents, minutes, notes and correspondence between officers of the FOI section of the ATO dealing with the ATO and ATO officers concerning how to respond to the FOI request from the date of this application, on 20 June 2009”
You will appreciate that no one will believe that you are [sic] decision maker that will have to face cross-examination on this issue. Consequently your notes from your superiors as to how to handle this FOI request will be of considerable public importance.
…
12. Mr Petroulias went on in that letter to challenge the delegate’s assertion that the work involved in processing his original FOI request would “substantially and unreasonably divert the resources of the Commissioner from its other operations”.
13. The delegate replied in a letter dated 23 September 2009:
I have received your letter dated 10 September 2009 regarding the amendment to your FOI application:
“4.18 documents, minutes, notes and correspondence between officers of the FOI section of the ATO dealing with the ATO and ATO officers concerning how to respond to the FOI request from the date of this application, on 20 June 2009”
Please note that the documents described in the above paragraph are different in nature compared to those described in the original scope of your application dated 20 June 2009. In order to provide you with access to documents described in the above paragraph without delay, I am treating it as a separate request and an independent FOI officer will be allocated to process it and will notify you with a decision by 15 October 2009.
14. On 26 October 2009, Mr Petroulias applied to the AAT for review of that decision identifying the decision the subject of his application as the “deemed refusal to provide Freedom of Information by 15th October 2009”. Under the heading “decision reference”, he wrote ”Letter by Ms Elizabeth Li [the delegate] dated 23 September 2009 determining to treat additional documents requested as a separate request”. That application is the subject of these proceedings.
15. Following the delegate’s letter of 23 September 2009, the parties continued to correspond about the scope of documents the subject of the original FOI request. That request was also not determined within time and accordingly was deemed to have been refused. On 14 October 2009 Mr Petroulias lodged an application for review of that decision with the AAT (AAT proceedings 2009/4884).
16. On 5 February 2010 solicitors acting for the Commissioner wrote to Mr Petroulias in the following terms:
Co-applicants
…
Notwithstanding your use of the term, ‘co-applicant’ our client has characterised your FOI request dated 20 June 2009 as a request brought in your personal capacity alone, on the following bases:
4.1 your FOI request dated 20 June 2009 uses the terms of ‘co-applicant’ and ‘agent’ interchangeably. However, viewed as a whole your letter was construed as purporting to be made by you both in a personal and representative capacity, rather than as comprising FOI requests from a number of different applicants;
4.2 you will recall that our client’s letter to you dated 5 August 2009 sought an application fee of $30.00. This is the prescribed fee for a single FOI application under regulation 5 of the Freedom of Information Regulations. Our construction of your letter of 20 June 2009 was apparent from that letter;
4.3 it is not sufficient merely to claim to be an agent. As the Tribunal has previously held, authorisation or consent is not sufficient to overcome s 38 of the Freedom of Information Act 1982 ... or vitiate the prohibition in s 16(2) of the Income Tax Assessment Act 1936 ...
17. Mr Petroulias contends that it was plain that the request made for further documents contained in his letter of 10 September 2009 was made by the same parties who made the original FOI request, namely himself and the 13 “co-applicants” listed in the Authority. He argues that this is made abundantly clear from the words “I firstly need to make an amendment to the FOI to include the following items … ”. He argues that his use of paragraph number 4.18 to describe the additional documents made clear that it was a continuum of the original request as in the original request, the last requested class of documents was listed as paragraph 4.17. He refutes the Commissioner’s assertion that it was a fresh request and asserts that it was merely an amendment of the original request.
18. It is necessary to decide whether, objectively considered, the 10 September 2009 request was one made by Mr Petroulias alone, or one made by him and purportedly on behalf of the 13 “co-applicants” listed in the Authority. The Commissioner’s decision to treat it as a fresh request and charge Mr Petroulias an additional fee for making that request is not determinative. Section 58(1) confers on the Tribunal the power to make any decision made by an agency in respect of an FOI request.
19. Apart from s 15 — which provides that a request made under the FOI Act must be in writing and provide such information concerning the document as is reasonably necessary to enable the agency to identify it — the FOI Act does not otherwise specify the form an FOI request must take.
20. The Act makes no express provision for a request to be amended. However, the effect of s 24(6) is to permit a person who has made a request to “amend” it where:
· The request does not contain information concerning the document as is reasonably necessary to enable a responsible officer of the agency to identify it: s 15(b)
· The agency is of the opinion that the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations: s 24(1))
21. Mr Petroulias’ September 2009 request falls into neither category. This is not a case of an applicant seeking to refine or clarify the class of documents requested. The documents requested on 10 September 2009 relate to the ATO’s handling and management of Mr Petroulias’ original FOI request. Those documents did not exist at the time the original FOI request was made. The subject matter of each request is plainly different. Notwithstanding Mr Petroulias’ description of the 10 September request as an “amendment to the FOI [request]”, it was in my opinion a separate request.
22. While plain that the original FOI request was purported to have been made by Mr Petroulias in a personal capacity and also on behalf of 13 others, it is less clear whether the second request was made on that basis. Read alone, there is some ambiguity about the nature of the second request. Mr Petroulias did not expressly state that it was made on behalf of others and his use of the first person “I firstly need to make … ” [emphasis added] is supportive of the Commissioner’s contention that the application was made by him alone. That view is bolstered by Mr Petroulias’ subsequent application to the AAT, which makes no mention of the 13 “co-applicants”. In my view, given the history of his request the letter of 10 September 2009 should not be read in isolation from the original request, which purported to be made by Mr Petroulias and on behalf of others. The reference to “I ... need to make an amendment to the FOI to include the following items …” [emphasis added] and the reference to paragraph number 4.18, which preceded the final paragraph number in the original request, taken together, lead me to conclude that the second request should be taken to be a request made by Mr Petroulias and purportedly on behalf of the 13 ”co-applicants” listed in the Authority.
Validity of the authority
23. The Commissioner contends that the Tribunal could not be satisfied that each of the corporate entities listed in the Authority had properly appointed Mr Petroulias as their agent in relation to the FOI request, or had consented to him making an FOI request on their behalf and being provided with documents that might otherwise offend s16(2) of the ITAA. The Commissioner points out that the Authority does not disclose whether the 11 corporate entities had properly authorised the person who purportedly executed it on their behalf to do so. Mr Petroulias contends that in the past, the Commissioner has accepted authorities in similar terms and that if he held any concerns about the validity of the Authority, he should have requested further clarification.
24. Mr Petroulias also relies on “Deeds of Ratification” executed by four of the corporate entities.. They are in identical terms and provide:
By this deed I hereby:
1. Irrevocably further ratify the actions and conduct of Mr Nick Petroulias in acting as and continuing to act as attorney, agent and nominee and stand and act in the shoes of the company making, receiving and taking legal action relating to our joint request and/or the request for information under the freedom of information from the Australian Taxation office and hereby give all necessary consents, authority and otherwise disclaim and renounce any need for further consents for the provision to him of documents and other information arising from that request;
2. Joining the company to co-requestor or co-applicant to the request or any litigation arising in relation thereto;
3. Agree to further ratify as necessary any steps taken by him as agent and attorney in acting under his authority for the company as may be necessary and convenient.
25. I accept the Commissioner’s submission that on what is before me, I could not be satisfied that each of the corporate entities listed in the Authority had properly authorised Mr Petroulias to act as agent on their behalf in respect of the “Deed of Ratification”. Neither party addressed me about the validity of the purported authorisation provided by the three individuals listed in the Authority.
26. For present purposes, I will assume rather than decide that each of the 13 “co‑applicants” have authorised Mr Petroulias to make the FOI request on their behalf and appointed him to act as their agent in respect of that request.
Operation of s 16(2) in circumstances where consent to disclosure is provided/ageny relationship exists
27. The Commissioner contends that each disputed document contains material, the disclosure of which is prohibited by s 16(2) of the Income Tax Assessment Act 1936 (Cth) (“the ITAA Act”) and therefore is exempt under s 38 of the FOI Act. Section 38 provides:
Documents to which secrecy provisions of enactments apply
(1) Subject to subsection (1A), a document is an exempt document if:
(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and
(b) either:
(i) that provision is specified in Schedule 3; or
(ii)this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.
(1A) A person’s right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.
(2) Subject to subsection (3), if a person requests access to a document, this section does not apply in relation to the document so far as it contains personal information about the person.
(3) ….
28. Section 16(2) of the ITAA is one of the secrecy provisions listed in Schedule 3 of the FOI Act and provides:
Officer to observe secrecy
…
Subject to this section, an officer shall not either directly or indirectly, either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of officer in subsection (1).
29. “Officer” is defined by s 16(1) to mean:
A person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax.
30. The Commissioner submits that the Authority on which Mr Petroulias relies does not vitiate the prohibition contained in s 16(2) of the ITAA, which as a matter of statutory construction must be strictly construed. The Commissioner urges the Tribunal to adopt the approach taken by Member McCabe in Hart and Deputy Commissioner of Taxation [2002] AATA 1190; (2002) 36 AAR 279; (2002) 51 ATR 1086. That matter concerned a request made under the FOI Act by the applicant and on behalf of the Cleary and Hoare Practice Trust (of which the applicant was a trustee) and others. In considering the operation of ss 38 and 16 of the ITAA, Member McCabe said:
69. The drafting of ss 16(2) and 8WB [Taxation Administration Act 1953] appear to place a premium on protecting a person's privacy. As the Tribunal explained in Re Mann and Federal Commissioner of Taxation (1987) 87 ATC 2010 at 2014 there is a:
"cardinal principle of Australian income tax law that the knowledge of a person's affairs gained by the ATO is sacrosanct, subject to carefully defined, albeit now ever extensive, statutory exceptions."
70. That is entirely appropriate given the sensitivity of the information the Commissioner is empowered to collect. It follows that while information about the applicant himself and about him in his other capacity as trustee of the Cleary and Hoare practice trust may be considered for release without offending the prohibition, information relating to other entities with whom the applicant is involved and with whom he may have a relationship (and who have consented to release) should not be considered for release. Those entities should make a separate application of their own under the Freedom of Information Act 1982. What they do with the information if and when it is released to them is a matter for those entities. I accept this is a more cumbersome process, but the taxation legislation rightly places great store in protecting privacy. The provisions of the Freedom of Information Act 1982 should be interpreted in that light, notwithstanding the general policy evident in the Act in favour of disclosure.
31. Member McCabe declined to endorse the submission made for the respondent Commissioner that s 16(2) operated to prevent the Commissioner from disclosing information to an individual about a third person even where the third party is related to the individual and has consented to disclosure. He said at [68]:
If one takes the logic of that argument to its limits, the Commissioner would be prevented from providing documents containing information about the applicant alone to the solicitor whom the applicant was using to make the request. That seems excessive since the solicitor is obliged to maintain the confidentiality of the documents to protect the client's interests. Where the applicant is seeking information with the third party's consent, as opposed to seeking the information on behalf of the third party as that party's legal representative, the position might be different since there is no obligation of confidentiality owed to the third party.
The Commissioner’s policy
32. Mr Petroulias contends that the interpretation of s 16 of the ITAA that the Commissioner urges me to adopt is contrary to the ATO’s published policy and practice. In support he cites Practice Statement Law Administration PS LA 2005/5, an internal document issued under the authority of the Commissioner. The stated purpose of the Practice Statement is to “outline the procedures to be followed where an applicant requests third party information [under the FOI Act]”. He contends that the following passages make abundantly clear that the directive against disclosure where consent is provided does not extend to persons who are “standing in the shoes of” the person who provides the consent:
15.Consent is not a basis for disclosure under the taxation secrecy laws. Three decisions of the AAT state that subsection 38(2) of the FOI cannot be relied on to overcome the operation of the secrecy provisions in section 16 of the ITAA 1936, even with the consent of the third party: Re Corrs Chambers Westgarth and Federal Commissioner of Taxation 98 ATC 2298; 40 ATR 1191; Re Collie and Deputy Commissioner of Taxation 97 ATC 2058; 35 ATR 1204 and Re Hart and Deputy Commissioner of Taxation (2002) AATA 1190; 51 ATR 1086.
16.It is the ATO view, that the secrecy provisions do not prevent the disclosure of information to the person to whom it relates. This can also included entities who can properly be treated as “standing in the shoes” of the taxpaper or other person whom the information is about. Most commonly this will include properly authorised tax agents, solicitors, executors of a deceased estate etc. Disclosure in these circumstances is not considered a disclosure with consent.
33. Mr Petroulias argues that if s 16 were to be given the narrow reading urged by the Commissioner, it would, for example, prevent a bookkeeper or tax agent making an enquiry to the ATO about matters relating to their client’s tax affairs. This he contends would thwart the administration of the Australian taxation system. He also points to the evidence given by Mr Shaw which was to the effect that within the FOI section of the ATO it was considered that consistent with the Policy Statement, disclosure to an agent containing information about the affairs of their principal was not in breach of s 16(2) of the ITAA.
Reasoning
34. As Mr Petroulias correctly points out, the Practice Statement provides that while consent is insufficient to overcome the prohibition against disclosure contained in s 16(2) of the ITAA, the prohibition does not extend to a person “standing in the shoes” of the taxpayer.
35. There is a long line of authority stemming from the decision of Full Court in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, in particular the joint judgment of Bowen CJ and Deane J at 68-70 ,that in the exercise of its review function the Tribunal must take into account any relevant statement of governmental policy. Where the policy relates to the interpretation of legislation, the Tribunal is not bound by the opinion of the agency (or Minister) and in reaching the correct and referable decision must make its own independent assessment of the legalisation: Port of Brisbane Corporation v Deputy Commissioner of Taxation (2004) 81 ALD 549.
36. The terms of s 16(2) make abundantly clear that an officer shall not either directly or indirectly divulge or communicate to any person any information respecting the affairs of another person that has been acquired in the course of the officer’s employment. I agree with the opinion expressed by Senior Member McCabe that the prohibition operates even where the person to whom the relevant information relates has consented to the “officer” disclosing information about their affairs to a third party. The more difficult issue is that raised by Mr Petroulias, namely whether the prohibition against disclosure extends to an agent where the documents requested contain information relating to the affairs of their principal.
37. There is some strength in Mr Petroulias’ argument that if contrary to the Practice Statement the effect of s 16(2) is to prohibit an officer disclosing information respecting the affairs of a person to their agent, the administration of the taxation system would be made extremely difficult. Nonetheless, as the Commissioner points out, the words “consent” or “agency” do not appear in the provision. In my opinion, it must be strictly construed — the prohibition is absolute and applies irrespective of whether the relationship between the person to whom the information relates and the recipient of that information is one of principal and agency.
38. But even if I am wrong about the operation of s 16(2) in relation to agents, it seems to me that disclosure in this case would be prohibited given the nature of the Authority relied on by Mr Petroulias. If, as he contends, the effect of the Authority was to authorise him to act as agent on behalf of his 13 “principals”, any disclosure made to him would also constitute disclosure to his “principals”. If any material disclosed by the Commissioner contained information “respecting the affairs of [one principal]”, s 16(2) of the ITAA would be contravened because disclosure to Mr Petroulias would also constitute disclosure to all “principals”, not only the one to whom the information relates. That disclosure would plainly offend s 16(2) of the ITAA.
Are the elements of s 16(2) of the itaa satisfied?
39. As a first step in deciding whether any of the disputed documents are exempt under s 38 of the FOI Act, it is necessary to decide whether the elements of s 16(2) of the ITAA are satisfied in relation to the impugned information. It will be recalled that the provision operates to prohibit an officer from divulging or communicating to any person any information respecting the affairs of another person that was:
· Acquired by reason of the officer’s appointment or employment, or in the course of that employment; and
· Disclosed or obtained under the provisions of [the ITAA] or of any previous law of the Commonwealth relating to income tax.
40. The relevant officers in this case would appear to be the Commissioner himself and the delegate who acted on his behalf in respect of the FOI request.
41. Having examined each disputed document, I am satisfied that each contains information respecting the affairs of a person or persons other than Mr Petroulias. In reaching that conclusion, I have applied the meaning given to the phrase “affairs of a person” adopted in Re Collie & Deputy Commissioner of Taxation (1997) 45 ALD 556 at 563. In respect of each document, the identity of the person or persons to whom that information relates is readily identifiable.
42. It is apparent that in all cases that information was disclosed or obtained under the provisions of the ITAA Act or its predecessors to an officer in the course of their employment. That information was self-evidently acquired by the Commissioner and his delegate in the course of their respective employment with the Commonwealth. It follows that disclosure of the disputed documents is prohibited under s 16(2) of the ITAA.
Does s 38(2) apply?
43. By the operation of s 38(2), s 38(1) does not apply in respect of each disputed document insofar as they contain personal information about Mr Petroulias. However, as each of the disputed documents contain information about third parties that is caught by s 16(2), the document itself is exempt notwithstanding that it also contains personal information about Mr Petroulias.
Should access be granted to any of the disputed documents with deletions?
44. Having determined that each disputed document is exempt, I must consider whether it is possible to make deletions to any of the documents so that the redacted copy would not be an exempt document: s 22(1)(a). Providing I am satisfied that it is reasonably practical to make those deletions, Mr Petroulias must be given access to a copy of the redacted document unless it is apparent from his request that he would not wish to have access to such a copy: s 22(1)(c).
45. As noted, all disputed documents have been provided to Mr Petroulias in redacted form. All are relatively short in length and there is nothing to suggest that it is not reasonably practical to make deletions. Nor has Mr Petroulias indicated that he does not wish to have access to the disputed documents in redacted form.
46. I do not have power to decide that access be granted to Mr Petroulias to any disputed document if it contains “exempt matter”: s 58(2). “Exempt matter” is defined by s 4 of the FOI Act to mean “matter the inclusion of which in a document causes the document to be an exempt document”.
47. Given that the disputed documents have already been provided to Mr Petroulias with deletions, the real issue to be determined in respect of each document, is whether all of the material deleted constitutes “exempt matter”.
48. An examination of them reveals that some exempt matter is duplicated throughout the disputed documents. For example, in several cases a paragraph containing advice has been communicated in a single email that has subsequently come to form part of a chain of emails. Examples include the material deleted from documents 28, 29 and 30 and documents 36 and 37.
49. Having examined each of the disputed documents, I conclude in all cases that all of the material deleted was exempt matter — that is, material exempt pursuant to s 38(1) of the FOI Act.
50. Given this finding I must affirm the decision under review.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.
Signed: ................................[sgd]..........................................
Associate to Senior Member BrittonDate of Hearing: 9 December 2010
Date of Decision: 23 December 2010
The Applicant appeared in person.
Counsel for the Respondent: Ms K Stern
Solicitor for the Respondent: Australian Government Solicitor
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