Power and Secretary to the Department of Family and Community Services
[2002] AATA 1302
•16 December 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1302
ADMINISTRATIVE APPEALS TRIBUNAL Nº Q2002/16
GENERAL ADMINISTRATIVE DIVISION
Re: Nicole Power
Applicant
And: Secretary to the Department of Family and Community Services
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member
Date: 16 December 2002
Place: Sydney
Decision:The Tribunal affirms the decision under review.
(Sgd) P J Lindsay
Senior Member
© Commonwealth of Australia (2002)CATCHWORDS
Freedom of Information legislation – anonymous information provided – information recorded by Centrelink – whether confidential source of information - whether applicant entitled to provision of the information – whether disclosure to applicant would enable applicant to ascertain identity of a confidential source of information – decision affirmed.
Administrative Appeals Tribunal Act 1975, ss.35 and 37.
Freedom of Information Act 1982, ss. 3, 4, 11, 37, 41 and 55.
Social Security (Administration) Act 1999, ss.7 and 8.
Department of Health v Jephcott (1985) 9 ALD 35
McKenzie v Secretary to Department of Social Security (1986) 65 ALR 645
REASONS FOR DECISION
Mr P.J. Lindsay, Senior Member
Ms Nicole Power (the Applicant) has applied for review of a decision dated 15 October 2001 made by a Centrelink Business Manager on behalf of the Secretary, Department Family and Community Services (the Respondent). The decision was to refuse Ms Power access under the Freedom of Information Act 1982 (the FOI Act) to certain documents or parts of documents held by Centrelink.
At the initial hearing on 17 May 2002 in Lismore, Ms Power was assisted by her father Mr R. Fuller and the Respondent was represented by its advocate Mr S. Letch. Ms Power gave evidence. On the resumption of the hearing by telephone on 10 December 2002, Ms G. Welch of Centrelink gave evidence. Mr P. Finucan, solicitor, represented the Applicant and Mr T. French, one of the Department's officers, represented the Respondent. The Tribunal had before it the documents (T documents) lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
evidenceMs Power is a 29 year old mother of two who lives in Lawrence in northern New South Wales. Ms Power applied to Centrelink for benefits not long after separating from her husband Mr Brendan Power on 11 April 2001. She told the Tribunal that within one or two months of commencing to receive Parenting Payment (single), she received a letter from Centrelink saying that information had been received that she had not separated from her husband.
According to Mr Letch, an anonymous telephone caller gave Centrelink the information that Ms Power was still living in a marriage-like relationship. The call was made on 20 June 2001 (T7).
Ms Power then discussed her entitlement to benefits and completion of various forms she had been sent by Centrelink with one of its officers in Coffs Harbour. She informed the officer that she was not living in a marriage like relationship with Mr Brendan Power. Ms Power said that she was later informed by Centrelink that the information about her continuing to live with Mr Brendan Power was incorrect. At no time was her Parenting Payment (single) cancelled or suspended.
Mr Letch informed the Tribunal that the anonymous information was provided by telephone and, in accordance with Centrelink's usual procedures, the sex of the caller was not recorded. He said that the practice is to input tip-off information, sometimes referred to as 'public denunciations', received by telephone onto Centrelink's tip-off recording system, which T7 (fols.16 and 17) shows contains a number of different fields in which the particular details are recorded. The tip-off information is then transferred into the relevant Centrelink customer's file stored on the agency's computer mainframe. The information to which Ms Power seeks access is contained in a number of folios, being print outs of information stored on Centrelink's computer.
On 15 August 2001 Ms Power made a formal, written application for access to documents held by Centrelink. In particular she asked to see " … copies of the information supplied by a third party regarding my marital status" (T4). Centrelink responded on 4 September 2001 advising her that the information she sought comprised four folios, only part of which would be released. Some of the material that was withheld, was information that related to the affairs or dealings of other parties with Centrelink. In addition, Centrelink said it would not provide information relating to the identity of the informant, since that person provided the information anonymously (T5).
As the false information about Ms Power caused her a great deal of stress and as she also felt it reflected on her children, she wrote to Centrelink on 28 September 2001 requesting the identity of the informant so as " … to allow me to seek legal advise [sic] on how to stop these lies being reported and wasting Centrelink time and tax payers money for personal grudges" (T6). A Business Manager at Centrelink considered Ms Power's request for internal review of the decision that was made on 4 September 2001 and granted her request in part. Following the Business Manager's decision, Ms Power was provided with folio 4 in full. The remaining folios were released but with some deletions. In relation to folios 1 and 3, access was denied to some of the information therein as the information concerned the personal affairs of Mr Brendan Power, who had not authorised release of the information to her. The decision stated that the material in those two folios that had been withheld was exempt from disclosure under s.41(1) of the FOI Act which states:
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 FOI Act defines 'personal information' in s.4 as:
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 basis for withholding the material from folio 2 was that it was exempt under s.37(1)(b) of the FOI Act which provides:
(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;
…
According to her letter of 15 October 2001, the decision-maker, Ms Gail Welch, Centrelink business manager, based her decision on the following facts (T7):
(1) Centrelink received information alleging that you were living in a marriage-like relationship with Brendan Power.
(2) These documents contain information that could identify a person, or people, who provided information to Centrelink.
(3) Centrelink has a policy of advising callers, who are providing tip-offs, that their identity will be kept confidential.
(4) Centrelink considers the information relevant to the proper administration of Social Security law.
Ms Power has applied to the Tribunal under s.55 of the FOI Act for review of the decision refusing to grant access to the relevant parts of the documents.
Ms Power told the Tribunal that she wants the Respondent to supply her with the name of the person who provided the agency with the false information about her. The issues therefore are whether the release to Ms Power, firstly, of the withheld information in parts of folios 1 and 3, would involve the unreasonable disclosure of personal information about Mr Brendan Power, and secondly whether the release of the withheld material in folio 2, would or could reasonably be expected to disclose or enable Ms Power to ascertain the identity of the anonymous caller. Mr Letch informed the Tribunal that even if Mr Brendan Power were to consent to the release of the information in folios 1 and 3 that relates to him, the Respondent would not grant Ms Power access as that information itself could disclose the identity of the anonymous caller.
After the hearing had concluded, the Tribunal wrote to Centrelink pointing out that notwithstanding Mr Letch's assertions from the bar table, no evidence had been led about Centrelink's procedures for dealing with anonymous telephone tip-offs, and drawing attention to the Tribunal's FOI practice direction that was issued in 1985. That direction states that, unless the Tribunal otherwise directs and such a direction had not been made in this proceeding, at least seven days before the hearing a respondent must file and serve an affidavit setting out the evidence to be relied on in support of the claim for exemption. The Tribunal informed the parties that if such affidavit evidence were filed, the Tribunal would hear submissions. Subsequently, three affidavits were filed:
An affidavit sworn on 5 June 2002 by Lynda Maree Barnes, the team leader of Centrelink's Customer Relations Unit in Brisbane. Ms Barnes' unit accepts information volunteered by members of the community. Attached to her affidavit was a copy of Centrelink's form entitled 'Tip-off Recording System' dated 20 June 2001, with parts deleted. The Tip-off Recording System recorded information received by an officer in the customer relations unit in relation to Ms Power and Mr Brendan Power. The Tip-off Recording System did not identify the officer who received and recorded the information. Ms Barnes stated in her affidavit:
When receiving information from members of the public, it is the practice of officers in this unit to advise all informants the information they provide can be released under the Freedom of Information Act however, Centrelink will protect their identity or, they can give their information anonymously.
An affidavit sworn by Gail Welch, Centrelink's Site Manager, in Southport, sworn 17 June 2002. Ms Welch is the officer who reviewed the decision taken within Centrelink regarding Ms Power's application. Ms Welch wrote to Ms Power on 15 October 2001, releasing to her certain documents with deletions and informing her that the information in the deleted material contained information about Mr Brendan Power. Ms Welch stated in her affidavit:
In my opinion, release of the information provided in the deleted material would enable Ms Power to ascertain the identity of a confidential source of information.
In relation to Centrelink's policy regarding tip-offs, Ms Welch stated:
Centrelink has a policy of advising callers, who are providing tip-offs, that their identity will be kept confidential. This policy is contained in paragraph 5.1470 of Centrelink's Freedom of Information Manual … I was satisfied that Centrelink accepted the call on the basis the source of information would remain confidential.
Paragraph 5.1470 of the Freedom of Information Manual was attached to Ms Welch's affidavit and, in part, reads:
In the absence of evidence that the supplier specifically agrees to release, the identity of a person providing an unsolicited denunciation should always be withheld. The current procedure in Centrelink is to advise informants that it is Centrelink's policy to keep the identity of the informant confidential.
…
On occasions the release of some information that would not otherwise be exempt may lead to the possible disclosure of the identity of a confidential supplier. This would be most likely to occur where the 'mosaic' of a 'package' of information would identify the supplier, where individual pieces of information within that package would not have that result.
Ms Welch swore a supplementary affidavit on 17 June 2002, in respect of which the Chief Executive Officer of Centrelink sought an order under s.35(2) of the AAT Act on the grounds that the affidavit gives details of the information contained in the deleted parts of the material that has been provided to Ms Power. In addition, unedited versions of that material were annexed to the affidavit. The Tribunal made a confidentiality order under s.35 in respect of the entire contents of the affidavit upon the resumption of the hearing.
On 10 December 2002 the hearing resumed by telephone. Mr Finucan, solicitor, represented Ms Power and Mr French, an advocate in Centrelink's administrative law team, represented the Respondent. In cross-examination, Ms Welch agreed that it would be an inefficient use of Centrelink's resources to pursue false or unreliable information, but she added that Centrelink must first commit resources before discovering if information is false or unreliable. Ms Welch said that if the provision of false or unreliable information could be discouraged it would save Centrelink's resources.
findings and considerationIn its consideration of Ms Power's application, the Tribunal commences by noting that the objects of the FOI Act in s.3 declare that there is, as far as possible, a right of access extended to citizens to information in documentary form held by the Commonwealth Government. The right is limited only by necessary exceptions and exemptions and in that regard the Tribunal is mindful of s.11 of the FOI Act which provides:
(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
…
The definition of 'exempt document' in s.4 of the FOI Act extends to a document to which s.37(1)(b) applies. The approach to determining whether a document is covered by s.37(1)(b) has been described by Muirhead J in McKenzie v Secretary to Department of Social Security (1986) 65 ALR 645 in the following terms (at 649):
(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?
Mr Fuller urged the Tribunal to take account of the distress caused to Ms Power, her children and other family members by someone who has told lies. Mr Finucan submitted that there was a tension between Centrelink's interest in protecting the confidentiality of sources of information and the interest of a person affected by false or unreliable information in finding out who was responsible for providing that information. Further, he submitted, it would be reasonable for Centrelink to disclose such information as it would serve Centrelink's interest in discouraging the provision of information that proves to be wasteful of resources.
Mr Letch submitted that none of the withheld information in the three folios should be released because it was so specific that it would allow Ms Power to learn the identity of the informant. In his submission, Centrelink's documents containing the information are sources of confidential information. He pointed to the fact that the call was made anonymously and to Centrelink's policy of advising callers with tip-offs that their identity will remain confidential. Centrelink received the information and kept it confidential. Mr Letch submitted that the call was made in relation to the administration or enforcement of the law because it assisted Centrelink to discharge its obligation to make payments or benefits only to those entitled and that are correct in amount. Mr French responded to Mr Finucan's submissions by noting that the nature of the information, whether frivolous, false or otherwise, is not relevant to the application of s.37 of the FOI Act. He also argued that Mr Finucan's submission conflicted with Mr Brendan Power's interests which are relevant to s.41 of the FOI Act.
As to the first enquiry referred to by Muirhead J in McKenzie's case, the Tribunal notes that in Department of Health v Jephcott (1985) 9 ALD 35, Keely J accepted that 'a confidential source of information' in s.37(1)(b) " … means a person who has supplied information on the understanding, express or implied, that his or her identity will remain confidential" (at 40). On the basis of the material in T7 and the affidavits of Ms Barnes and Ms Welch, the Tribunal is satisfied that the informant contacted Centrelink by telephone on an unsolicited basis. The caller did not disclose his or her identity and would have been informed that Centrelink would not release information that would allow the caller to be identified. The Tribunal finds, having regard to the manner in which the informant provided the information and in which Centrelink recorded the information, that he or she did so on the understanding that their identity would remain confidential. It is clear from the decision in McKenzie's case that information that turns out to be false, as was the case here, nonetheless is 'information' for the purposes of s.37(1)(b). Muirhead J said (at 649):
Information prompting administrative inquiry is still properly classified as information in the hands of the department, be it true or false. The Department in the exercise of its responsibilities must and does regularly review the eligibility of recipients of public moneys. Some information may prove of value, some of no value.
Accordingly, the Tribunal is satisfied that the anonymous caller was a confidential source of information.
Next the Tribunal must consider whether the information was 'in relation to the enforcement or administration of the law'. Under s.7 of the Social Security (Administration) Act 1999, the Respondent has the general power of administration of the social security law. Section 8 of that Act provides that, in administering the social security law, the Respondent is to have regard to:
(a) the desirability of achieving the following results:
…
(v) the establishment of procedures to ensure that abuses of the social security system are minimised;
…
From the material in T7 and the affidavits of Ms Barnes and Ms Welch, the Tribunal finds that the Respondent has established administrative procedures for dealing with tip-off information. The procedures include inputting the information and storing it on Centrelink's computers, transferring it to the relevant customer's file and then looking into the matter raised by the information. It can be inferred that the objective is to ensure that possible abuses of the social security system are investigated. Even in cases such as the present where the information proves to be false, the Tribunal is satisfied that such information relates to enforcement or administration of the law.
Finally, the Tribunal must consider whether release of the information would in toto disclose the identity of the confidential source or be reasonably expected to do so. On examining the three unedited folios in their entirety as attached to Ms Welch's confidential affidavit, the Tribunal is reasonably satisfied that the information sought to be exempted from disclosure contains quite specific details about Mr Brendan Power's personal circumstances which only a few people could know. Taking into account the nature of that information, the Tribunal is satisfied on the balance of probabilities as required by s.61 of the FOI Act, that release of the information could reasonably be expected to enable Ms Power to identify the source of the information. It follows that the withheld sections of the three folios are exempt documents.
The Tribunal rejects Mr Finucan's submission that, in deciding this application, the Tribunal must resolve a tension between Centrelink's interest in encouraging the provision of tip-offs, and the interest of persons affected by unreliable information, who seek disclosure that would enable them to identify the source of that information. In doing so, the Tribunal notes the following from Forster J's judgment in Jephcott's case (at 39):
Section 37(1) makes no reference to public interest or competing public interests as do some other sections of the Act: see section 36 for instance which of course immediately precedes section 37.
If a source of information is properly to be regarded as a confidential source then there is, in my view, no room for the concept of 'a substantial risk that the administration of the law will be impaired'. Either it is established that a source is a confidential source or it is not. If it is, then it is entitled to the protection given by s.37(1)(b) and no 'bearing in mind' of the purposes of the Freedom of Information Act either as set out in s.3 or discovered elsewhere can, in my view, affect the position. …
For these reasons the decision under review should be affirmed.
I certify that the preceding 21 paragraphs are a true copy of the reasons for decision herein of P.J. Lindsay, Senior Member:
Signed:
..................................................................................……………………………….Associate
Date of Hearing 17 May, 10 December 2002
Date of Decision 16 December 2002
Applicant's representative Mr P. Finucan, solicitor.Respondent's representative Centrelink
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