Pietruszka and Centrelink FOI

[2006] AATA 114

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 114

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/53

GENERAL ADMINISTRATIVE DIVISION		)
Re		JANINA ANNA PIETRUSZKA

Applicant

And CENTRELINK FOI

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date9 February 2006

PlaceAdelaide

Decision The Tribunal affirms the decisions under review.

..............................................

J G SHORT
  (Member)

CATCHWORDS

FREEDOM OF INFORMATION – information received by Centrelink – information not substantiated – request for copy of letter provided by an anonymous informant – request for copy of handwritten Centrelink file note and typed version of same information with identity of third parties deleted – whether documents or information exempt from full disclosure – Freedom of Information Act 1982 ss 37(1)(b) and 41(1) – decision affirmed

Freedom of Information Act 1982 ss 4, 11, 37, 41, 55, 60
Administrative Appeals Tribunal Act 1975 ss 29, 35(2)

Social Security (Administration) Act 1999 ss 7, 8

McKenzie v Secretary to Department of Social Security (1986) 65 ALR 645

REASONS FOR DECISION

9 February 2006   Mr J G Short (Member)

1. This is an application for review of a decision made by Centrelink on 19 October 2004 to refuse access to the original of the handwritten letter received by Centrelink on 6 September 2004 (document 1). This decision was affirmed by a Freedom of Information Officer on 9 February 2005. The application is also for review of a decision made by a Freedom of Information Officer dated 21 December 2004 to exempt from release deleted portions of the following documents: a handwritten undated file note recording payments made to the Public Trustee under the group schedule arrangement (document 2) and a group payment adjustment printout produced by the Public Trustee and dated 30 June 1994 (document 3). The respondent determined that document 1 is exempt under s 37(1)(b) of Freedom of Information Act 1982 (the Act) and that the information deleted from documents 2 and 3 is exempt under s 41(1) of that Act.

2. The application is authorised under s 29(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and also under s 55 of the Act. Ms Pietruszka lodged an application for review of the above mentioned decisions on 1 March 2005. Accompanying her application were a number of Ms Pietruszka’s typed statements.

issue

3.      The issue before me is whether Centrelink has correctly applied exemption provisions to the documents in question.

legislation

4.      The Act relevantly provides:

"Interpretation

4(1)     In this Act, unless the contrary intention appears:

…

‘agency’ means a Department, a prescribed authority or an eligible case manager.

....

Right of access

11(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a)       a document of an agency, other than an exempt document; or

(b)       an official document of a Minister, other than an exempt document.

(2)       Subject to this Act, a person’s right of access is not affected by:

(a)       any reasons the person gives for seeking access; or

(b) the agency’s or Minister’s belief as to what are his or her reasons for seeking access.

....

Documents affecting enforcement of law and protection of public safety

37(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

…;

(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; or

(c)       endanger the life or physical safety of any person.

…

Documents affecting personal privacy

41(1)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).

…”

preliminary issue

5. In dealing with the sensitivity of the documents concerned, which were provided confidentially by the respondent to the Tribunal, the Tribunal made an order pursuant to s 35(2)(c) of the AAT Act and directed that:

"(a) the publication of the content of documents provided confidentially to the Tribunal, is prohibited to all persons other than the Respondent, the Tribunal and the Tribunal’s staff; and

(b) this order applies until further order."

applicant’s case

6.      Ms Pietruszka believes that over many years she and her family have been subjected to “persecution” by various people.  She said that the reason she wanted the documents released to her was because they may help her identify the person or persons she believes to have harmed her and her family.  Details of Ms Pietruszka’s allegations in respect of these people and a history of her perceived persecution are contained in her written statements found in the T documents and other documents tendered at hearing.

respondent’s case

7.      The respondent submitted that deleted portions of documents 2 and 3 were exempt from production.  The documents contained a list of people who are or were Centrelink benefit recipients and who have also been or are protected people whose financial affairs are or were managed by the Public Trustee.  The respondent explained that Centrelink monies had been paid to the people named in this list, and that the quantum of each payment was recorded along side each person’s name.  The respondent said that unbeknown to Centrelink, the protection orders relating to these people had been lifted by the time the payments were made and consequently the Public Trustee was required to refund the monies to Centrelink so that Centrelink could make the payments directly to the listed people.  Names and amounts, other than those of Ms Pietruszka, were blackened out before Ms Pietruszka was provided with copies of documents 2 and 3.

8.      I have perused the unedited versions of documents 2 and 3.  They contain personal information about third parties.  I accept that in addition to naming third parties, the documents by their nature, indicate both that the parties are Centrelink recipients and that they are or have been protected people.  The documents also contain reference to a quantum of money presumably now paid to these people.  In these circumstances I reached the view that disclosure would be unreasonable because it would be an invasion of the privacy of third parties and may damage those persons.  I find therefore that deleted portions of documents 2 and 3 are exempt documents under s 41(1) of the Act.

9.      The respondent argued that document 1 was an exempt document under s 37(1)(b) of the Act. Criteria for determining whether a document is exempt under this section was provided by Muirhead J in Mckenzie v Secretary to Department of Social Security (1986) 65 ALR 645. His Honour there outlined the following three relevant questions:

“(1)     Was the letter in question a confidential source of information?

(2)     If so, was it properly classified as relating to the enforcement or administration of the law?

(3)     Would its release in toto disclose the identity of the confidential source or in the alternative could it reasonably be expected to do so?”

10.     In relation to question one, the respondent pointed out that the document was signed “anonymous” and contained a request that the document or a copy of the document not be given to the applicant or to anyone else for fear of the author’s identification.  Having perused the document, I consider that the anonymous author has expressly declared an understanding that the document would remain confidential.  If I am wrong in this, then I find that the author implied such an understanding of confidentiality.

11.     In reference to the second Mckenzie criterion, the respondent argued that the document was appropriately classified as relating to the enforcement or administration of the law.  The respondent said that the document contained allegations relating to income said to have been received by Ms Pietruszka from work or from other sources and which if true would suggest that Ms Pietruszka was being overpaid Centrelink benefits.  I find that Centrelink has an interest and indeed an obligation to ensure that appropriate payments are made to its clients.  I consider that this document has been properly classified as relating to the enforcement or administration of the law.

12.     In relation to the third question referred to in Mckenzie, that is, “Would its release in toto disclose the identity of the confidential source or in the alternative could it reasonably be expected to do so?”, the respondent referred to the specific nature of the information contained in the document.  The submission was that the author is likely to be known to Ms Pietruszka and may be one of only a few people who have knowledge of the specific matters raised in the letter.  It was consequently submitted that release of the letter is likely to allow Ms Pietruszka to identify its author.  I agree with the respondent’s submission.  I find that release of the document in toto could reasonably be expected to identify a confidential source.  Further, even if a typed version of the letter were produced, I would still consider that the information contained therein is sufficiently specific to support my finding that its disclosure could reasonably be expected to identify a confidential source.

13.     I have considered the reasons provided by Ms Pietruszka as to why she seeks full release of the documents in question.  I am satisfied however that the respondent has discharged its onus of establishing that the decisions made in answer to the requests for disclosure of documents 1, 2 and 3 were justified.

14.     The Tribunal affirms the decisions under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         ............J Coulthard...........................................
  Associate

Date of Hearing  12 December 2005
Date of Decision  9 February 2006
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms A Pugsley
Solicitor for the Respondent     Centrelink Legal Services Branch