Price and Attorney General’s Department (Freedom of information)

[2016] AATA 1044

Price and Attorney General’s Department (Freedom of information) [2016] AATA 1044 (20 December 2016)

Division	FREEDOM OF INFORMATION DIVISION
File Number	2015/2945
Re	Michael Price
APPLICANT
And	Attorney General’s Department
RESPONDENT

DECISION

Tribunal	Deputy President I R Molloy
Date	20 December 2016
Place	Brisbane

I make the following orders or directions:

1The respondent, on or before 10 January 2017, lodge with the Tribunal and serve draft orders;

2The applicant lodge with the Tribunal and serve on the respondent his response (if any) to the draft orders prepared by the respondent, on or before 20 January 2017;

3Each party have liberty to apply to the Tribunal (on reasonable notice to the other party).

........................[Sgd]................................................

Deputy President I R Molloy

CATCHWORDS

FREEDOM OF INFORMATION – request for access to documents – conditional exemptions claimed – whether documents exempt – whether, on balance, access would be contrary to public interest – decision under review affirmed.

LEGISLATION

Freedom of Information Act 1982 (Cth)

Privacy Act 1988 (Cth)

CASES

British Steel Corporation v Granada Television Ltd [1981] AC 1096, 1113[H]

Johansen v City Mutual Life Assurance Society Limited (1904) 2 CLR 186 188

SECONDARY MATERIALS

Guidelines of Office of the Australian Information Commissioner

REASONS FOR DECISION

Deputy President I R Molloy

20 December 2016

1. This is an application by Mr Price to review a decision by the respondent to refuse to grant him access to documents under the Freedom of Information Act 1982 (“the FOI Act”). The documents arise out of or relate to the work of the Defence Abuse Response Taskforce (“the Taskforce”) in assessing an allegation of abuse.

   INTRODUCTION

2. Mr Price first submitted a request under the FOI Act on 26 June 2014. He revised that request on 28 July 2014, and on 27 August 2014 the respondent granted him full access to certain documents, partial access to some documents, and refused him access to other documents, covered by his request.

3. Following an application by Mr Price to the Office of the Australian Information Commissioner (“OAIC”), the respondent offered to revise its decision, which it did on 16 April 2015, setting aside its earlier decision, and granting Mr Price access to 141 documents in full, and 122 in part (the “revised” or “reviewable” decision).

4. Mr Price made another application to the OAIC, which decided, consistent with its indication in respect of his previous application, that it would not undertake review of the revised decision having regard, amongst other things, to the complexity and volume of the material. These proceedings, commenced by application lodged on 15 June 2015, are for review of the revised decision.

5. The respondent contends that the revised decision should be affirmed in accordance with a schedule which reflects documents which, by agreement of the parties I am told, have been disclosed or placed outside the scope of these proceedings. I have concluded that I should uphold that submission. I set out below the background, the role and functions of the Taskforce, and why I have come to that conclusion.

   TASKFORCE   

6. The background to the Taskforce as well as its role and functions are described by Kirsty Windeyer, Executive Director/ Special Counsel of the Taskforce.[1]

   [1] Exhibit 3, Windeyer Affidavit, at [9] – [23]

7. The Taskforce is an administrative body established by the Australian Government and administered by the Attorney-General’s Department. The primary role of the Taskforce is to assess and respond to individual cases of sexual and other abuse which occurred in the Department of Defence before 11 April 2011.[2]

   [2] Id, annexure “KW-1”.

8. The respondent’s evidence is that:

   (a)complainants to the Taskforce provide their information to the Taskforce on the basis of a guarantee of confidentiality;[3]

   [3] Id, at [27], see also Annexure “KW-2”.

   (b)the Taskforce employs a range of internal controls to ensure the security and confidentiality of complainant information;[4]

   (c)many complainants report that they feel strongly about the need for the Taskforce to maintain confidentiality over their accounts of abuse;[5]

   (d)the Taskforce is not an investigatory body and so does not normally have  contact with alleged abusers or third parties referred to in complaints;[6]

   (e)the nature of the Taskforce’s or any similar future body’s functions and the sensitive nature of the personal information handled mean adequate protection of this information is essential to ensure complainant and public confidence and trust in Taskforce processes;[7]

   (f)the Taskforce’s processes also mean that third parties such as alleged abusers, witnesses or third party complainants could be referred to in Taskforce documents such as Assessment Notes without their being aware of that fact;[8]

   (g)it is Taskforce policy that, other than in a small number of cases,[9] all communication between Taskforce staff and complainants is undertaken on a ‘first name’ basis only;[10]

   (h)the respondent has evidence of risks of threats or other inappropriate contact from complainants that have arisen or occurred through the operation of the Taskforce;[11]

   (i)the Taskforce policy referred to above is designed to protect staff from the risk of threats or other inappropriate contact from complainants which will impact upon its ability to discharge its functions;[12]

   (j)the existence of the policy has also assisted the Taskforce to retain staff and assists the Taskforce to protect staff’s safety and privacy. If the policy did not exist, it is reasonable to expect staff may be concerned about these matters and this may affect their ability to continue to work for the Taskforce;[13]

   (k)these same concerns exist for Departmental staff who may have contact with Taskforce complainants.[14]

   [4] Id, at [29].

   [5] Id, at [30]-[31].

   [6] Id, at [45].

   [7] Id, at [49].

   [8] Id, at [45].

   [9] Id, at [33].

   [10] Id, at [32]-[33].

   [11] Id, at [35].

   [12] Id, at [34].

   [13] Id, at [36].

   [14] Id, at [37].

   FOI ACT

9. The FOI Act creates a legally enforceable right to obtain access, subject to and in accordance with the Act, to a document of an agency.[15] Section 11A provides, in that regard, that where a valid request has been made to an agency which is subject to the operation of the FOI Act, a document that is subject to the FOI Act shall be disclosed unless it is either exempt, or it is conditionally exempt and granting access to the document would be contrary to the public interest.[16]

   [15] Section 11(1).

   [16] Section 11A.

10. Consistent with the objects of the FOI Act, in proceedings for a review of a decision in relation to an FOI request, the onus of proving that a document is exempt and, as such, that the decision to refuse access is justified, lies with the person resisting disclosure of the document.[17] In the present case that is the respondent, which is the agency that is seeking to exempt documents from disclosure.[18]

    [17] Section 61.

    [18] As to the definition of ‘agency’, see s 4.

11. Part IV of the FOI Act sets out the operation of the exemptions and public interest conditional exemptions. Each of the exemptions (Part IV, Division 2) or public interest conditional exemptions (Part IV, Division 3) has particular conditions which must be met before the document can be considered to fall within the exemption or the public interest conditional exemption.

12. Part IV, Division 1 provides a summary of how the exemption provisions operate in relation to the disclosure of documents.[19] Sections 47C, 47E and 47F are public interest conditional exemptions. Documents that satisfy the conditions of a public interest conditional exemption are only exempt from disclosure if their disclosure would, on balance, at a particular time, be contrary to the public interest.[20]

    [19] See ss 31A and 31B.

    [20] Section 11A(5).

13. The FOI Act defines ‘document’ to include ‘any part of’ a document.[21] If a document contains exempt material (or material that is irrelevant to the request for access), and it is possible to prepare a copy of the document that deletes the exempt or irrelevant material, an edited version of the document must be prepared.[22]

    [21] Section 4.

    [22] Section 22.

14. Part of a document that is not exempt is still a ‘document’ to which an applicant has a right of access.[23] In these proceedings, each of the exemptions claimed by the respondent are exemptions claimed over parts of documents and the remainder of each document, I am told, has already been disclosed to Mr Price.

    [23] Section 11, 11A.

    DOCUMENTS IN ISSUE

15. There are two aspects to determining whether the documents in issue are exempt under the FOI Act:

    (a)whether the documents are conditionally exempt pursuant to ss 47C, 47E and/or 47F of the FOI Act; and

    (b)if the documents are conditionally exempt, whether the disclosure of the documents would, on balance, be contrary to the public interest.

16. It is convenient to deal with the documents, firstly, in categories according to the claim for to conditional exemption.

    Section 47C – deliberative processes of the respondent

17. Section 47C(1) of the FOI Act provides that a document is conditionally exempt if its disclosure would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of inter alia an agency.[24] An agency’s deliberative matter does not include operational information [25] or purely factual material.[26]

    [24] Section 47C(1)(a).

    [25] Section 47C(2)(a).

    [26] Section 47C(2)(b).

18. The respondent submits that certain material contained in two documents, numbered 114 and 119, is conditionally exempt on the basis that its disclosure under the FOI Act would disclose deliberative matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of the respondent, specifically the Taskforce.

19. Each of the documents, as I have said, has been partially disclosed to Mr Price.  The documents in question comprise Assessment Notes. The Taskforce’s assessment of a complaint is recorded on an Assessment Note which may contain:

    (a)a summary of the facts of the allegation;

    (b)analysis supporting consideration of whether the allegation is plausible; and

    (c)assessment of whether the allegation demonstrates any characteristics which suggest or reflect previously identified patterns of abuse within the Department of Defence.[27]

    [27] Exhibit 3, Windeyer Affidavit at [41]-[42].

20. The respondent’s evidence is that the s 47C Material in the Assessment Notes comprises information and analysis, which information does not necessarily comprise a final decision on a complaint.[28] The information and analysis does, it is submitted, comprise ‘deliberative matter’ within the meaning of s 47C of the FOI Act. This is because it constitutes the ‘thinking processes’ of the Taskforce with respect to the subject complaint. In particular, the documents in question consist of:

    (a)analysis of a collection of integrated facts which were used by the Taskforce to assess the plausibility of the complaint;[29]

    (b)information relating to other complaints for the purpose of analysing whether the complaint indicated a pattern of abuse when compared to the other complaints.[30]

    [28] Id, at [43].

    [29] Id, at [41].

    [30] Id, at [81].

21. Finally, it is submitted the documents in question do not include operational information or purely factual material, or comprise any of the categories of documents excluded from the operation of s 47C of the FOI Act by s 47C(3) of the FOI Act.

22. I accept these submissions on behalf of the respondent, and find that the documents said to constitute the s 47C Material are conditionally exempt under s 47C of the FOI Act.

    Section 47E – certain operations of agencies

23. The respondent submits that certain material in documents 1, 2, 22, 26, 35, 44, 45, 46, 47,48,49, 51, 54, 56, 58, 59, 60, 61, 67, 68, 69, 70, 86, 87, 89, 90, 90a, 91, 93, 94, 96, 97, 108, 114, 119, 120, 122, 125, 127, 128, 130, 132, 135, 143, 146, 152, 153, 153a, 154, 155, 159, 164, 169, 181, 184, 186, 187, 188, 189, 189a, 190, 192, 208, 209, 210, 211, 212, 213, 214, 216, 217, 218, 228, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 251, 252, 253, 255, 256, 257, 259, 261, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371 and 372 (“the s 47E Material”) is conditionally exempt under s 47E of the FOI Act.

24. Section 47E of the FOI Act conditionally exempts documents where disclosure would, or could reasonably be expected to, prejudice or have a substantial adverse effect on certain agency operations and relevantly if its disclosure under the Act would, or could reasonably be expected to:

    (a)    have a substantial adverse effect on the management or assessment of personnel by an agency (s 47E(c)) or

    (b)   have a substantial adverse effect on the proper and efficient conduct of the operations of an agency (s 47E(d)).

25. The respondent accepts that for conditional exemption under s 47E to apply, the agency must be able to demonstrate that objectively disclosure would or could reasonably be expected to have the predicted effect.

26. The respondent submits, firstly, disclosure could reasonably be expected to have a substantial adverse effect on management of personnel. The s 47E Material identifies officers handling, or associated with documents the subject of, Mr Price’s complaint. The respondent’s policies and processes, it is submitted, are designed to ensure the confidentiality of the information in the documents that identifies the surnames of all but the most senior officers handling, or associated with documents the subject of, complaints to the Taskforce.[31]  

    [31] Exhibit 3, Windeyer Affidavit at [32]-[33] and Exhibit 1, T4, page 17.

27. The respondent submits, supported it is said by evidence of experience of the Taskforce, that, given the nature of its role, it is reasonable to expect that disclosure of these names could subject Taskforce and respondent staff to the possibility of threats, harassment or inappropriate contact from complainants.[32] This, in turn, can reasonably be expected to have a substantial adverse effect on the personnel of the respondent, and in particular the Taskforce, and as such, to management of those personnel by the respondent and the Taskforce specifically.[33]

    [32] Exhibit 3, Windeyer Affidavit at [34] and [35].

    [33] Id, at [36]-[37].

28. As such, the position of the respondent is that the disclosure of the s 47E Material under the FOI Act would, or could reasonably be expected to have the effect described in s 47E(c) and is therefore conditionally exempt under s 47E.

29. Secondly, the respondent submits that disclosure of the s 47E Material would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of the respondent, and in particular the Taskforce.

30. The respondent’s evidence, as relied on in this regard, is as follows:

    (a)the Taskforce’s policies are designed to ensure the confidentiality of information in the documents and these policies were applied in relation to the documents;

    (b)the Taskforce’s role and processes do not require that it check or test the accuracy of the information in the documents by disclosing any allegations to third parties. As a body which assesses information (as opposed to one which investigates complaints) the Taskforce relies on its ability to assess the plausibility of facts without having to confer with each third party mentioned in a complaint;[34]

    (c)given its role, it is reasonable to expect that disclosure of the documents would substantially undermine confidence in the Taskforce’s or any similar future body’s ability properly to protect information about individuals referred to in the documents;[35]

    (d)the disclosure of the documents would be contrary to the policies of the Taskforce, and the purpose for which it was established.  If such disclosure was made, it would establish a precedent for any future disclosure, and could alter the basis upon which the Taskforce or any future agency, assesses future complaints, including requiring it more formally to investigate complaints and thus require it to allocate more resources to rigorously investigate complaints, including the need to interview third parties. Such a process could reasonably be expected to lead to distress for complainants providing their complaint to the Taskforce and to third parties;

    (e)disclosure of information about some of the individuals referred to in the documents, in circumstances where they have not been made aware of the allegations, would expose them to reputational risk and may make it less likely that the Taskforce or any future similar body would be able to effectively gather information in the future;[36]

    (f)it is reasonable to expect that disclosure of the documents would put at risk the manner in which the Taskforce’s operations are undertaken. The Taskforce’s operations are designed to provide redress and are not intended to require that it check the accuracy of the information in the documents by disclosing any allegations to third parties;

    (g)the effectiveness of the Taskforce’s or any similar future body’s ability to advocate for change to prevent future abuse depends to a significant degree upon it maintaining the respect of the Department of Defence, the Australian Defence Force and the public. Any failure to protect confidentiality risks undermining the Taskforce’s or any similar future body’s reputation in the eyes of these stakeholders and will diminish the acceptance of and respect for the Taskforce’s findings and recommendations;[37]

    (h)consequently, there is a quantifiable risk from disclosure of these documents of a substantial adverse effect on to the Taskforce’s or any similar future body’s ability to properly and efficiently conduct its operations.

    [34] Id, at [73]-[74].

    [35] Id, at [78.5].

    [36] Id, at [72] and [78.7].

    [37] Id, at [78.6].

31. I think there is merit in each of these submissions. Mr Price submitted that some of the claims put forward by the respondent to limit the content of material released bordered on the unreal. For example, the reasons given for not providing the names of Commonwealth public servants due to a perceived risk were, in his submission, a nonsense. He submitted that other Commonwealth agencies, such as the Department of Social Services, have similar issues to face but do not have a blanket ban on revealing staff names.

32. Mr Price submitted, not limited to the s 47E Material, that his request for information is not about government policy or strategy. It solely concerns information regarding himself and issues associated with his abuse by staff in the Department of Defence and the handling of those complaints or information by staff of the Taskforce.

33. Mr Price contends that Taskforce staff may have breached the law, including but not limited to the Commonwealth Crimes Act. He submits that access to all the documents without any redactions is necessary to be able to track and cross check those staff involved in the process.

1. Importantly, he submits, he needs to map the changes that led to an initial recommendation to the head of the Taskforce to forward his case to the Australian Federal Police (‘AFP’) for possible criminal prosecution to what he says was the decision of the chair of the Taskforce to do nothing. He says he needs to know the process that led to what he considers was an unexpected about-face.

2. Mr Price submits he also requires full access to the package produced he says by the Taskforce Crime Group, including the legal opinions, which were referred to in other material released to him that indicated that those legal opinions would be forwarded to the AFP.

3. I have taken into account Mr Price’s submissions, not only as they relate to the s 47E Material, but in respect of all the material for which the respondent claims conditional exemption. I appreciate his reasons and desire for further disclosure. However, in respect of the s 47E Material, I accept the respondent’s submission that disclosure would, or could reasonably be expected to, have the effect described in s 47E(c) and (d) of the FOI Act, and the material is therefore conditionally exempt under s 47E.

   Section 47F - personal information

4. Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure under the Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

   ‘Personal information’ relevantly means information or an opinion…, 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.[38]

   [38] Section 4(1) FOI Act and s 6(1) of the Privacy Act 1988 (Cth); see also OAIC Guidelines, at [6.116].

5. The OAIC Guidelines, based on this definition, characterise as personal information, information:[39]

   ·which identifies, or could identify, a person;

   ·says something about a person;

   ·may be opinion;

   ·may form part of a database;

   ·may be true or untrue;

   ·relates to a natural person.

   [39] OAIC Guidelines, at [6.116].

6. Personal information can include a person’s name, address, telephone number, date of birth, medical records, bank account details, taxation information and signature.[40]

   [40] OAIC Guidelines, at [6.117].

7. The respondent contends that the following categories of information contained in the documents in dispute are conditionally exempt on the basis that they contain personal information relating to third parties, the disclosure of which would be unreasonable:

   (a)surnames of officers associated with the work of the Taskforce, other than the former Chairs of the Taskforce the Honourable Len Roberts-Smith RFD QC, and Mr Robert Cornall AO, the Reparation Payments Assessor Ms Robyn Kruk AM, the former Executive Director Mr Matt Hall PSM, and Kirsty Windeyer (“Taskforce Executive”);[41]

   [41] Document numbers 2, 22, 26, 35, 44, 45, 46, 47, 48, 49, 51, 54, 56, 58, 59, 60, 61, 67, 68, 69, 70, 86, 87, 89, 90, 90a, 93, 94, 96, 97, 108, 120, 122, 125, 127, 128, 130, 132, 135, 143, 146, 152, 153, 153a, 154, 155, 159, 164, 169, 181, 184, 186, 187, 188, 189, 189a, 190, 192, 208, 209, 210, 211, 212, 213, 214, 216, 217, 218, 228, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 251, 252, 253, 256, 257, 259, 261, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371 and 372.

   (b)user IDs of the officers associated with the work of the Taskforce, other than the Taskforce Executive;[42]

   [42] Document numbers 187, 188, 234, 235, 236, 237, 238, 239, 240, 272, 273, 274, 275, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314,315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 360, 361, 364, 366, 367, 368, 369, 370, 371 and 372.

   (c)direct phone numbers of officers associated with the work of the Taskforce;[43]

   (d)signatures of officers associated with the work of the Taskforce, other than the Taskforce Executive;[44]

   (e)email addresses of officers associated with the work of the Taskforce other than the Executive Director;[45]

   (f)signatures or initials of Defence officers;[46]

   (g)phone numbers of Defence officers[47]

   (h)names of low level DLA Piper employees who worked on the DLA Piper report[48] and held administrative and paralegal roles, and had no external contact with complainants, and signatures of DLA Piper employees;[49]

   (i)the name of a spouse or partner of a Defence officer;[50]

   (j)signatures, birth dates, identification numbers, employment information and mobile phone numbers and other personal information of third parties mentioned in the documents held by the Taskforce.[51]

   (collectively, “the s 47F Material”).

   [43] Document numbers 2, 3, 6, 26, 35,  51, 54, 56, 58, 59, 60, 61, 70,  86, 87, 89, 90, 90a, 93, 94, 96, 97, 108, 122, 125, 127, 128, 130, 132, 146, 152, 153, 153a, 154, 155, 164, 181, 184, 186, 187, 189, 189a, 190, 192, 234, 235, 236, 237, 240, 242, 243, 244, 245, 246, 247, 248, 249, 253, 257, 263, 273, 283, 306, 307, 308, 324, 326, 328, 330, 344, 368, 369, 370, 371 and 372.

   [44] Document numbers 22, 214 and 259.

   [45] Document numbers 26, 47, 51, 58, 60, 61, 70, 89, 90, 96, 120, 122, 155, 181, 186, 189, 189a, 190, 192, 234, 235, 236, 237, 239, 240, 242, 243, 244, 245, 246 and 253.

   [46] Document numbers 33, 34, 91, 262 and 263.

   [47] Document numbers 33, 34, 91, 186, 187, 188, 189, 189a, 190,262 and 263.

   [48]  Law firm DLA Piper was commissioned to review allegations and make an initial assessment on whether they had been appropriately managed by Defence: Exhibit 3, Windeyer Affidavit at [10]-[11].

   [49] Document numbers 1, 91, 114, 119, 125, 128, 130, 244, 247, 249 and 255.

   [50] Document numbers 34, and 263.

   [51] Document numbers 45, 46, 48, 49, 65, 98, 186, 187, 188, 208, 209, 210, 211, 215, 216, 217, 218, 228, 236, 241, 251, 252, 261, 294, 300, 358 and 359.

8. Mr Price did not expressly counter the respondent’s argument that the s 47F Material comprises ‘personal information’ within the meaning of s 4 of the FOI Act. I have taken into account his submissions, referred to above, including why he considers this and other information should be disclosed. In the end however I accept the respondent’s submission that the s 47F Material is conditionally exempt under s 47F of the FOI Act.

   The public interest issue

9. As previously stated, even if a document is conditionally exempt, it must be disclosed unless, on balance, it would be contrary to the public interest to do so at that time.

10. ‘Public interest’ refers to something more than a private interest – it is something of ‘serious concern and benefit to the public’;[52] something that is in the interest of the public, rather than merely being of interest to the public.[53] Amendments to the FOI Act in 2010 provide some guidance as to whether releasing a conditionally exempt document would be ‘contrary to the public interest’.[54] One effect of these amendments was to identify particular factors that must not be taken into account in considering whether releasing a document would be contrary to the public interest.[55]

    [52] British Steel Corporation v Granada Television Ltd [1981] AC 1096, 1113[H].

    [53] Johansen v City Mutual Life Assurance Society Limited (1904) 2 CLR 186 188.

    [54] OAIC Guidelines, at [6.8].

    [55] Section 11B(4).

11. The respondent submitted the disclosure of the s 47C, 47E and 47F Material would be contrary to the public interest under s 11A(5) of the FOI Act, on the following grounds:

    (a)the individuals whose personal information is in the documents may not be aware that the information exists;[56]

    [56] Exhibit 3, Windeyer Affidavit at [73].

    (b)the purpose for which the Taskforce was established is to repair harm done to individuals rather than punishment of offenders, it does not investigate complaints and is not determinative of people’s rights, it assesses and responds to individual cases of abuse in the Department of Defence;[57]

    (c)there is an interest in preventing disclosure of information consistent with the Taskforce’s policies and procedures which are designed to protect documents containing personal information relating to a complaint as well as third parties including alleged abusers;[58]

    (d)the Taskforce is best able to carry out its functions if it is not required to disclose documents containing personal information concerning complainants, alleged abusers or other third parties and which identify staff using their full names;

    (e)the Taskforce is best able to manage its personnel if it is not required to disclose documents which identify staff using their full names;

    (f)it can reasonably be expected that disclosure by the Taskforce of personal information about complainants and alleged abusers to third parties would negatively impact upon the Taskforce’s or any similar future body’s ability to perform its functions as it would undermine the confidence of people who complain of abuse in Defence;

    (g)it can reasonably be expected that disclosure of personal information about  third parties would prejudice the ability of the Taskforce, or a future similar body to obtain confidential information and would undermine stakeholder confidence in the work of the Taskforce;

    (h)it can reasonably be expected that disclosure of personal information about alleged abusers to third parties would, given the nature of the information, prejudice the fair treatment of such individuals;

    (i)in respect of the names of the respondent’s officers and third parties who assisted, the respondent’s policies and processes are designed and consistently applied to ensure surnames are not disclosed to complainants. This is because, given the nature of its role, it is reasonable to apprehend that disclosure of these names will subject the respondent’s officers and third parties who assisted to the possibility of harassment from complainants;[59]

    (j)it can reasonably be expected that disclosure of the names of the respondent’s officers would negatively impact upon the capacity of the respondent, specifically the Taskforce, to perform its functions.

    [57] Id, at [17].

    [58] Id, in particular, at [28].

    [59] Id, at [32]-[37].

12. The respondent submits that these considerations are not outweighed by any of the factors which favour disclosure of the s 47C, 47E and 47F Material including promotion of the objects of the FOI Act, informed debate on a matter of public importance, and promotion of effective oversight of public expenditure. Again I have taken into account Mr Price’s submissions. Amongst other things he submits that some of the reasons advanced on behalf of the respondent for not disclosing information border on the unreal, and matters such as perceived risk to staff are a nonsense. They are opinions, if they are his opinions, which he is entitled to hold. However I accept that on balance, it would be contrary to the public interest to disclose the s 47C, 47E and 47F Material.

    CONCLUSION

13. The decision under review should be affirmed in accordance with the schedule provided prior to the commencement of the hearing which I am informed reflects the agreement of the parties on documents that have been disclosed or placed outside the scope of these proceedings.

14. I make the following orders or directions:

    1The respondent, on or before 10 January 2017, lodge with the Tribunal and serve draft orders;

    2The applicant lodge with the Tribunal and serve on the respondent his response (if any) to the draft orders prepared by the respondent, on or before 20 January 2017;

    3Each party have liberty to apply to the Tribunal (on reasonable notice to the other party).

I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

........................[Sgd]................................................

Associate

Dated  20 December 2016

Date of hearing	16 May 2016
Applicant	In person
Counsel for the Respondent	Erin Longbottom
Solicitors for the Respondent	Australian Government Solicitor