QFGL and Bureau of Meteorology
[2014] AATA 521
•31 July 2014
[2014] AATA 521
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3255
Re
QFGL
APPLICANT
And
Bureau of Meteorology
RESPONDENT
Appeal from [2013] AICmr 26
DECISION
Tribunal Deputy President K Bean
Date 31 July 2014 Place Adelaide The Tribunal decides that:
1. the decision under review, which refused access to parts of the documents dated 28 January 2010, 7 July 2010, 14 July 2010 and 22 July 2010 which contain personal information, is affirmed; and
2. in relation to the additional documents identified in the course of these proceedings as being within the scope of the applicant’s request, dated 28 January 2010, 29 January 2010, 10 February 2010, 11 February 2010 and 13 February 2010, access to the parts of those documents which contain personal information is refused.
........... [Sgd] ...................
Deputy President K Bean
CATCHWORDS
FREEDOM OF INFORMATION – Access – Allegations made against applicant to his employer – Identifiers of complainants redacted – Whether documents conditionally exempt – Whether disclosure would be contrary to public interest – Real likelihood that allegations deliberately false and malicious – Possibility that complainants used false identities – Potential implication of “innocent” third parties – Unreasonable disclosure of personal information – Disclosure contrary to public interest – Decision under review affirmed, and access to parts of additional documents containing personal information refused.
LEGISLATION
Freedom of Information Act 1982, ss 11A(5), 47F, 58
CASES
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Re Thies and Department of Aviation (1986) 9 ALD 454
SECONDARY MATERIALS
Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, Part 6 – Conditional Exemptions (Version 1.2, March 2013)
REASONS FOR DECISION
Deputy President K Bean
31 July 2014
Between 1999 and 2010 the applicant was employed by the Bureau of Meteorology (the Bureau) as a Technical Officer. On 4 April 2011, he made an application to the Bureau under the Freedom of Information Act 1982 (the Act) for access to documents relating to allegations which had been made against him and communicated to the Bureau.
Of the seven documents identified as falling within the applicant’s request, the Bureau determined that particular portions of four of those documents, containing the names, email addresses and other identifiers of the complainants, were conditionally exempt under s 47F of the Act on the basis that disclosure of those portions would involve unreasonable disclosure of personal information. The Bureau also concluded, pursuant to s 11A(5) of the Act, that it would be contrary to the public interest to grant the applicant access to those parts of the documents, and therefore denied him access to the relevant parts of the documents.
The applicant sought review of the Bureau’s decision, and on 14 March 2013, the Acting Freedom of Information Commissioner affirmed the Bureau’s decision to refuse access to those parts of the documents containing the names, email addresses and other identifiers of the complainants.
On 8 July 2013, the applicant applied to this Tribunal for review of the decision of the Acting Freedom of Information Commissioner, giving rise to these proceedings.
At the hearing, which was held on 4 December 2013, the Bureau conceded that it was also within the Tribunal’s jurisdiction to consider a fifth document dated 28 January 2010, which had not been identified by the Bureau as falling within the scope of the applicant’s original request,[1] but which had subsequently come to its attention, in the context of this application. I am satisfied that I have jurisdiction to consider that document, by virtue of s 58 of the Act.
[1] See Exhibit 1, T4/19.
Subsequent to the hearing, I sought further information from the respondent relating to the attempts which had been made to contact the complainants. That information was provided in the form of an affidavit of Ms Shepherd dated 6 March 2014, the subject of a confidentiality order pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) which was not opposed by the applicant.
On 11 March 2014, the respondent also filed an additional affidavit annexing a further redacted email and redacted email chain, which the respondent acknowledged were within the scope of the applicant’s FOI request but had not previously been provided. I am also satisfied that I have jurisdiction to consider those documents, by virtue of s 58 of the Act.
I should also indicate that, consistently with the Bureau’s approach with respect to the other documents, redacted copies of the additional documents which have been identified as falling within the applicant’s request have been supplied to the applicant, with details relating to the identity of the complainants deleted.
I should further record that on 8 April 2014 I made a further order pursuant to s 35 of the AAT Act, requiring that the applicant’s name be replaced by a pseudonym in the Tribunal’s Decision and Reasons.
Before addressing the issues which arise in this matter more directly, I first propose to set out the relevant factual background and statutory framework.
BACKGROUND
The nature of the documents which have been provided to the applicant in a redacted form, and which are the subject of these proceedings, can be briefly described as follows:
(a)An email dated 28 January 2010 and sent to the Bureau, detailing the complainant’s alleged observations of the applicant’s “unprofessional” behaviour[2];
(b)An internal Bureau email dated 28 January 2010 which records allegations made to the Bureau by a complainant who requested they remain anonymous[3];
(c)An email dated 7 July 2010 and sent to the Bureau, containing allegations of involvement by the applicant in “illegal” activity[4];
(d)An email dated 14 July 2010 from the Bureau to SA Police, forwarding the email dated 7 July 2010[5];
(e)An email dated 22 July 2010 from the Bureau to SA Police, following up on the action to be taken in respect of the email dated 7 July 2010[6];
(f)Emails dated 29 January 2010, 10 February 2010 and 11 February 2010, between a Bureau employee and a complainant relating to complaints about the applicant; and
(g)An email to a Bureau employee from a complainant dated 13 February 2010.
[2] Exhibit 3.
[3] Exhibit 2.
[4] Exhibit 1, T1/4.
[5] Exhibit 1, T1/5.
[6] Exhibit 1, T1/7.
There is no dispute between the parties as to the following facts:
(a)The information contained in the emails is not well known and is not publicly accessible;
(b)The Executive Legal Officer with the Bureau attempted to communicate with the senders of the emails but her attempts were unsuccessful[7];
(c)One of the complainants requested that their complaint be treated in confidence;
(d)The applicant was provided with full details of the nature of the allegations made against him[8];
(e)In respect of the complaint made in January 2010 the subject of the emails referred to at (a) and (b) in paragraph 11 above, the applicant was interviewed about the matters alleged in this complaint, but, as the allegations were not substantiated, no further action was taken by the Bureau with respect to his employment[9];
(f)On 14 July 2010, the Regional Hydrology Manager with the Bureau forwarded the email dated 7 July 2010 to the South Australia Police, however no further action has been taken by the Police; and
(g)The allegations were referred to in a briefing letter sent by the Bureau to a psychiatrist, Dr Marty Ewer, on 8 October 2010 in connection with the assessment of the applicant’s fitness to return to work.[10]
[7] Affidavit of Christopher Stocks, Exhibit 7, [11].
[8] Exhibit 7, [13].
[9] Exhibit 7, [13].
[10] Exhibit 7, [14].
For completeness, I also note that the Bureau has provided the Tribunal with copies of the non-redacted versions of the relevant documents.[11]
[11] Exhibit 4. The non-redacted documents contained in Exhibit 4 are the subject of a confidentiality order pursuant to s 35 of the AAT Act restricting their disclosure to members and staff of the Tribunal, and the respondent and the respondent’s advisers. The additional emails referred to in paragraphs 11(f) and (g) above are protected from disclosure by virtue of s 64(1A) of the Act.
STATUTORY FRAMEWORK
Section 15 of the Act provides in effect that a person who wishes to obtain access to a document of an agency may request access to the document in writing. Access must be given unless the document is an exempt document.[12]
[12] See ss 11 and 11A.
Subsection 11A(5) also relevantly provides that:
The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Division 3 of Part IV of the Act provides for the circumstances in which a document will be conditionally exempt. Section 47F relevantly provides as follows:
Public interest conditional exemptions–personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b)whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
Section 4 provides that “personal information” has the same meaning as in the Privacy Act 1988, namely, information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a)whether the information or opinion is true or not; and
(b)whether the information or opinion is recorded in a material form or not.
In determining whether disclosure of a conditionally exempt document would be “contrary to the public interest” within the meaning of subs 11A(5), s 11B of the Act provides as follows:
Public interest exemptions–factors
Scope
(1) This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a)promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a)access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(aa)access to the document could result in embarrassment to the Government of Norfolk Island or cause a loss of confidence in the Government of Norfolk Island;
(b)access to the document could result in any person misinterpreting or misunderstanding the document;
(c)the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
I note that the Information Commissioner has also issued Guidelines under s 93A of the Act relating to conditional exemptions and the public interest test, which I am obliged to have regard to.
In relation to the personal privacy exemption, the Guidelines relevantly provide (omitting citations):
6.128 An agency or minister must have regard to the following matters in determining whether disclosure of the document would involve an unreasonable disclosure of personal information:
(a) the extent to which the information is well known
(b)whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document
(c)the availability of the information from publicly accessible sources
(d)any other matters that the agency or minister considers relevant.
As to the public interest test, the Guidelines relevantly state (omitting citations):
6.8 The term ‘public interest’ was not defined in the FOI Act when it was enacted. This approach encouraged decision makers to analyse what constitutes the public interest in a particular matter, rather than relying on set criteria. Following the 2010 reforms, the term remains largely undefined, although there are some factors which must not be taken into account … . The term ‘public interest’ is necessarily broad and non-specific because what constitutes the public interest depends on the particular facts of the matter and the context in which it is being considered. The concept can be applied to a multitude of situations and circumstances. Public interest considerations (such as the administration of justice) may also be simultaneously evoked in favour and against disclosure of a document in a particular case.
6.9 To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information. The decision maker must analyse, in each case, where on balance the public interest lies, based on the particular facts of the matter at the time the decision is made.
…
6.25 The four factors favouring disclosure are broadly framed but they do not constitute an exhaustive list. Other factors favouring disclosure may also be relevant in the particular circumstances. A non-exhaustive list of factors is below.
Public interest factors favouring disclosure
(a) FOI Act promotes disclosure
…
ii.allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official
iii.reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct
…
(d) allow a person to access his or her personal information, or
…
(e) contribute to the maintenance of peace and order
(f) contribute to the administration of justice generally, including procedural fairness
(g) contribute to the enforcement of the criminal law
(h) contribute to the administration of justice for a person
(i) advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies
…
6.29 A non-exhaustive list of factors against disclosure is provided below.
Public interest factors against disclosure
(a) could reasonably be expected to prejudice the protection of an individual’s right to privacy
…
(b) could reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct
(c) could reasonably be expected to prejudice security, law enforcement, public health or public safety
(d) could reasonably be expected to impede the administration of justice generally, including procedural fairness
(e) could reasonably be expected to impede the administration of justice for an individual
…
(g) could reasonably be expected to impede the flow of information to the police or another law enforcement or regulatory agency
(h) could reasonably be expected to prejudice an agency’s ability to obtain confidential information
(i) could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future
…
(k) could reasonably be expected to harm the interests of an individual or group of individuals
…
(m) could reasonably be expected to prejudice the management function of an agency
…
THE ISSUES
It follows that the issues before me are as follows:
(a)Are the parts of the relevant documents to which the applicant has been refused access conditionally exempt under s 47F of the Act?; and
(b)If so, would access to those parts of the documents be contrary to the public interest pursuant to subs 11A(5) of the Act, such that they should not be disclosed to the applicant?
I propose to first consider whether the relevant information is conditionally exempt under s 47F of the Act before proceeding to consider whether access to the information would be contrary to the public interest, if that question arises.
ARE THE RELEVANT PARTS OF THE DOCUMENTS CONDITIONALLY EXEMPT?
Contentions
As to whether disclosure of the identity of the complainants would be unreasonable, Mr Aujard, who appeared for the applicant at the hearing, pointed to the fact that the relevant allegations had not been substantiated or further acted upon either by the Bureau or the Police. As the applicant strenuously denied the allegations, he submitted that the allegations should be treated as false and malicious and, in these circumstances, it was not unreasonable for the identity of the people who had made these allegations to be released to the applicant.
Whilst there was a public interest in protecting the identity of complainants providing reliable information or “whistleblowers”, he submitted that there was also a public interest in a person who had been the subject of malicious and false allegations being able to ascertain the source of those allegations so as to protect and defend themselves. He pointed out that, if the identity of the complainants was known to the applicant there would be legal actions available to him, such as potentially initiating defamation proceedings or making a criminal complaint to the Police.
Mr Aujard further submitted that there was some public utility in people who made false allegations being held accountable for their allegations. In this context, he submitted that the fact the Bureau had not been able to communicate with the complainants was a factor weighing in favour of disclosure, so as to allow the applicant to take further action to “clear his name”. Mr Aujard pointed to material indicating that the applicant had attempted to report the matter to the Police.[13] However, nothing had eventuated from that report. Mr Aujard submitted that police action was much more likely to result if the applicant was able to advise the Police of the names of the complainants.
[13] Exhibit 5, Appendix ZJ 01-06.
In respect of the additional emails provided after the hearing, Mr Aujard provided supplementary submissions dated 24 April 2014 in which he:
·drew attention to inconsistencies between the way the complainants referred to the applicant in different emails;
·pointed out that the complainants claimed to have Bureau equipment on their land, suggesting that the Bureau would have been able to locate the person(s) if the complaints were genuine;
·pointed out that the emails indicate the complainants were not prepared to provide meaningful information to the Bureau, but only to make “slurs of a general nature”; and
·reiterated that on all of the evidence, the complaints appeared to be vexatious and malicious.
Ms Shepherd, who appeared for the Bureau at the hearing, drew my attention to the decision of Deputy President Hall in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257, as follows:
Whether a disclosure is “unreasonable” requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s. 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.[14]
[14] At [51].
Ms Shepherd further submitted that disclosure of the identity of the complainants would be unreasonable in all the circumstances, including the fact that the applicant had been informed of the allegations and that no further action had been taken against him as a result of those allegations, apart from a “code of conduct” interview in 2010.
Ms Shepherd further submitted that the information sought by the applicant was not well known or publicly accessible and it was clear that he intended to contact the complainants or cause them to be contacted in circumstances where those persons were unlikely to want to be contacted by the applicant.
In supplementary submissions filed on 2 May 2014, the Bureau maintained that disclosure of all of the redacted information would be unreasonable because:
- the allegations contained in the documents did not form part of any decision taken by the Respondent against the Applicant
- the Applicant was informed of the allegations and has been provided with copies of the emails in redacted form …
- some of the emails were provided in unredacted form to the Applicant’s legal representative during the course of the [compensation proceedings][15]
-the information is not well known and is not otherwise publicly accessible …
-the Respondent attempted to consult with the people who made the allegations but its attempts were unsuccessful …
-the authors of the emails have not consented to the disclosure of their personal information
-one of the authors made the allegation with a reasonable expectation that they be treated in confidence and their identity not be disclosed … .[16]
[15] This is a reference to another application to the Tribunal. In that matter an order made by the Tribunal provided in effect that the relevant documents be given to the applicant in a redacted form, and that the redacted information not be disclosed to any person other than members and staff of the Tribunal, the respondent and its legal advisers, the applicant’s legal advisers, and the Tribunal’s transcription service provider. The order also gave leave to the respondent and the applicant’s legal advisers to inspect and copy the non-redacted version of the documents.
[16] Respondent’s Supplementary Submissions dated 1 May 2014, [8].
The Bureau also pointed out that one of the additional documents which had been provided subsequent to the hearing revealed further attempts made by the Bureau’s Regional Hydrology Manager to contact one of the complainants. This email chain indicated that on 29 January 2010, that person requested that the complainant contact her to discuss the allegations, and on 11 February 2010 she asked the complainant to meet with her to discuss the allegations.
The Bureau also relied upon the further unsuccessful attempts which had been made to contact the complainants at the request of the Tribunal. In addition, the Bureau pointed out that one of the emails provided subsequent to the hearing confirmed that the relevant complainant did not wish to be identified to the applicant.
The Bureau further submitted:
13.As was made clear by the Applicant at the telephone directions hearing on 14 March 2014 and his supplementary submissions, he intends to seek to identify and contact the complainants in circumstances where:
13.1.it is highly likely that those persons would not wish to be either identified or contacted by the Applicant
13.2.the Applicant may not be able to identify nor contact the complainants, given the actions already taken by the Applicant and the attempts of the Respondent to contact the complainants.
14.Accordingly, the Respondent submits that, in the circumstances of this matter, disclosure of the personal information would be unreasonable.[17]
[17] Respondent’s Supplementary Submissions dated 1 May 2014, [13] and [14].
Consideration
Having regard to the very significant issues and concerns raised by each party, I consider this question to be a finely balanced one. I consider there to be considerable force in Mr Aujard’s submission that the applicant has a significant interest in ascertaining the identity of the relevant complainants, so that he can potentially pursue further action against them, which may enable him to “clear his name”. I also accept that, to some extent, there is a broader public interest in those who make false allegations being held to account for those allegations and the consequent damage caused by them. While the applicant has suffered limited tangible detriment as a result of the allegations, I also accept that the allegations have caused him considerable distress and resulted in him being subject to a code of conduct interview in 2010. I further accept that the information the subject of the complaints has become known within the Bureau to some extent, and that his reputation may have been tarnished in the minds of some other employees as a result of this.
On the other hand, I also accept that, having regard to the content of the relevant emails, the complainants in question would not have expected their identities to be revealed to the applicant, and would not wish to be contacted by him or on his behalf. I further accept that, should the identity of the complainants become known to the applicant, it is quite likely that he will seek to make contact with them, directly or indirectly, and/or seek to take action against them. It is clear from the material he has provided that the allegations made by the complainants have caused the applicant great distress and frustration and he has become preoccupied with the potential effects of the allegations and his need to clear his name. It is possible therefore that any contact which may be made with the complainants as a result of disclosure of their identities may be of a disproportionate and intemperate nature.
Further, for reasons I will outline later in my Reasons, I have concluded that there is a very real likelihood that the allegations the subject of the relevant emails are false and were maliciously made. However, I have also concluded that there is a risk that the identities used by the complainants are false and that disclosure of the relevant identifying details will not lead to identification or location of the author(s) of the emails. I note also that, having regard to the relevant definition of “personal information” in the Act, the information held by the Bureau in relation to the complainants is “personal information” with respect to the persons identified by that information even if those person(s) were not in fact the author(s) of the complaints. This would seem to follow from the fact that the identifying information and the fact the allegations have been made using their identities is “information … about” those individuals.
Of course I must also consider the possibility that the complainants have used their actual identities, and that the complaints are genuine. If that is the case, as I have indicated, it is clear that the complainants do not want or are unlikely to want their identities to be disclosed to the applicant, and contact from him is likely to be very unwelcome to them.
If the applicant had suffered any tangible detriment, or was likely to suffer such detriment, and the detriment could be remedied by disclosure of the complainants’ identities, that may nevertheless have persuaded me that disclosure of the complainants’ identities was not unreasonable in all the circumstances. In the absence of any tangible detriment of that kind however, I have concluded that it would be unreasonable to disclose the complainants’ identities (real or false) to the applicant in circumstances where, if the complainants are genuine they would not have expected this to occur and where such disclosure may expose them to contact from and action by the applicant, which may be of an intemperate and/or disproportionate nature. I have also taken into account that, if the relevant identities have simply been “used” by the author(s) of the emails, it would be unreasonable in all the circumstances to disclose those identities to the applicant.
WOULD ACCESS TO THE INFORMATION BE CONTRARY TO THE PUBLIC INTEREST?
Contentions
In contending that access to the information would be contrary to the public interest, the Bureau submitted that the disclosure of the information would make little or no contribution to the relevant factors in favour of disclosure for the following reasons:
…
23.1.The information is wholly about the personal information of a third party and not about the Applicant.
23.2.The personal information will not promote oversight of the Respondent’s expenditure or improve its accountability to the public … .
23.3.Disclosure of the information will not increase the transparency of the conduct of investigations or reviews of employees by the Respondent … .
23.4.Disclosure may adversely affect members of the public who made the allegations on the understanding that their identity would remain confidential.
23.5.Disclosure will not provide the applicant with natural justice in relation to any decision or action taken by the Respondent.[18]
[18] Respondent’s Outline of Submissions dated 3 December 2013, [23].
The Bureau further contended that:
[T]here is no public interest in making available the identity of persons who have made allegations against a former employee of the Respondent where those allegations have not been made out. It is relevant that the allegations were not taken into account in relation to any adverse decision or action by the Respondent against the Applicant. Further, it is reasonable to assume that the individuals had an expectation that their identity would not become publicly available.[19]
[19] Respondent’s Outline of Submissions dated 3 December 2013, [24].
The Bureau also pointed out that the applicant had been provided with full details of the allegations made, although not the identity of the complainants. Further, the Bureau had not taken any action against the applicant in respect of his employment as a result of the allegations, which the Bureau submitted was “an important factor weighed against the public interest in disclosure”.[20] The Bureau also contended however, that although the allegations were unsubstantiated, this did not automatically make them “false” and this point was reinforced by Ms Shepherd in the course of her oral submissions at the hearing.
[20] Respondent’s Outline of Submissions dated 3 December 2013, [26].
Having regard to the factors listed in the Guidelines as weighing against disclosure, the Bureau further submitted that a number of these weighed significantly against disclosure. The Bureau pointed out that at least one of the complainants provided the relevant information on a confidential basis, and submitted that each of the following factors weighing against disclosure were relevant in the circumstances of this matter:
…
32.1.could reasonably be expected to prejudice the protection of an individual’s right to privacy
32.2.could reasonably be expected to prejudice public safety
32.3.could reasonably be expected to prejudice an agency’s ability to obtain confidential information
32.4could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future
32.5.the fact that the information concerning the personal affairs of third parties is unlikely to shed light on the way in which the Respondent conducts its business
32.6.the information was provided by the third parties under an expectation of confidentiality.[21]
[21] Respondent’s Outline of Submissions dated 3 December 2013, [32].
In its further supplementary submissions filed on 2 May 2014, the Bureau also contended that the Tribunal should have regard to developments in privacy law and increasing community concern about privacy. The Bureau further submitted:
… the fact the substance of the complaint was not substantiated ought to [sic] considered a factor against disclosure, as disclosure will not assist members of the public, or the Applicant, to scrutinise the operations of the Respondent and to make their own judgement as to whether the Respondent discharged its functions properly. All the information going to the substance of the complaint has already been disclosed to the Applicant.
…
The Respondent submits that, while the use of the information for the Applicant’s own purposes may [sic] a relevant factor to consider, it ought not be given much, if any, weight. With nothing more, it does not outweigh the significant and substantial factors that weigh against the disclosure of the information.[22]
[22] Respondent’s Supplementary Submissions dated 1 May 2014, [28] and [30].
Consistently with his other submissions outlined above, Mr Aujard submitted that even if the information was conditionally exempt, on balance it would not be contrary to the public interest for the information to be disclosed. In particular, given the nature of the allegations and their implications for the applicant, Mr Aujard submitted that there was a public interest in the applicant having the opportunity to dispute the allegations and “clear his name”. In addition, there was a public interest in the complainants being held to account for what he alleged were not only unsubstantiated but false and malicious allegations. Mr Aujard also relied upon the decision of the Tribunal in Re Thies and Department of Aviation (1986) 9 ALD 454, in particular the Tribunal’s statement at [35], as follows:
It is well-established that a public interest exists in a person having access to information about his personal affairs recorded in documents in the possession of an agency: see Re Burns and Australian National University (No 1) (1984) 6 ALD 193 and Re James and Australian National University (1984) 6 ALD 687. There is a further public interest in a person who has suffered an actionable wrong being able to pursue a remedy in the courts; if such persons are unable to do that, they may be tempted to “take the law into their own hands”. We take into account the fact that, if the applicant commenced an action against his former employer, he might be able to obtain from the court a summons requiring the Department to produce the tape or a transcript of it in evidence at the trial; but he needs to know what is recorded before he commences proceedings. We have come to the conclusion in the present case that the public interest in the applicant obtaining access to the transcript of the tape is considerable. Accordingly, we find that in this case, if “substantial” bore the meaning “not trivial, minimal or nominal”, disclosure of the transcript would, on balance, be in the public interest, so that the transcript is not an exempt document under s 40 of the Act.[23]
[23] At [35].
Although extensive reference was not made to it at the hearing, the applicant has also provided detailed documentary evidence and written submissions in support of his contention that the allegations are false and that, in all the circumstances, he should be informed as to the identity of the complainants. The submissions made by the applicant in support of his contentions include the following:
(a)The applicant notes that staff of the Bureau have reported the January 2010 allegations as emanating from a person “who identified himself as a land-owner where Bureau instrumentation is installed”.[24] The applicant asserts that there are only two such landowners within the relevant locality. The applicant makes the point that the Bureau does not appear to have “made any attempt to verify this person as a landowner in the alleged … area”;[25]
(b)The applicant also claims to have been in contact with all the landowners with Bureau equipment on their land in the relevant area, as well as an additional landowner whose property contains the roads named in the 28 January 2010 email. The applicant has provided names and contact details for all these landowners, together with written statements denying any knowledge of the allegations and stating that they have never had cause to complain of the applicant’s conduct. Further, the landowner of the property on which two of the relevant roads are situated also stated that it would be unlikely he would miss such behaviour on his property;[26]
(c)The applicant has also included references from long-term immediate co-workers, which are unsupportive of the “false” allegations and some of which directly address the allegations;
(d)The applicant contends that the similarity in the content of some of the emails suggests they emanate from the same source and it appears odd that the matters the subject of the emails, particularly the 7 July 2010 email, were reported to the Bureau rather than directly to the Police;
(e)Noting that the allegations contained in the 28 January 2010 email relate to events during 2009, the applicant contends that it is unlikely that someone with an honest complaint would take a number of months before reporting such incidents. He also points out that the making of the January 2010 allegations coincided almost exactly with his return to work after two months’ leave, which he contends is a suspicious coincidence;
(f)The applicant makes the point that the January 2010 complainant has identified the applicant as a Bureau employee despite the fact that he wore no identifying clothing or name tag, and nor did the vehicle he was driving have anything on it to indicate that it was a Bureau vehicle;
(g)The complainant spells the applicant’s name correctly, despite the fact that it is his experience that people usually have trouble spelling his surname without seeing it in writing previously. In this regard, the applicant also states that he has contacted the relevant landholders in the area in question who confirmed that they had not been approached by anyone inquiring as to his contact details;
(h)If the content of the allegations was true, particularly the July 2010 allegations, the applicant would already know the relevant person’s identity because of their asserted proximity to him at the time of the alleged misconduct;
(i)The applicant claims that during the time periods contained in the first email, “there are only two possible dates when he was in the area – on one he completed considerable work making such behaviour impossible, on the second he was accompanied by a colleague making the allegations as described impossible”;[27] the applicant states that these matters could readily have been checked by the Bureau;
(j)The applicant also contends that it is strange that the email of 7 July 2010 was apparently sent directly to the Regional Hydrology Manager, a senior Bureau employee, and the same person who ultimately dealt with the complaints raised in the first email. It would not be expected that a member of the public would have directed an initial email of this kind to the Regional Hydrology Manager, or had sufficient information so as to enable them to do so. The two emails are also suspiciously similar in structure, content and intent, suggesting that they emanate from the same source.
[24] Exhibit 5, Appendix F01.
[25] Exhibit 5, page 11.
[26] Exhibit 5, page 13.
[27] Exhibit 5, pages 17 - 18.
The applicant also says that the allegations have had extremely serious repercussions for him as they formed the basis of a code of conduct investigation in 2010 and they have been disseminated relatively widely, including to other Bureau employees and to doctors engaged by Comcare to examine him in the context of a compensation claim. He says he needs to be able to identify the relevant complainants so as to establish that:
1. The complainant had falsely identified themselves to the employer to substantiate the false claims, which in turn proves the information of claims (complaints) are not true or at least extremely unlikely;
2. The complainants [sic] true identity can be revealed to establish a likely motive for making false allegations;
3. Bring some accountability on the complainants [sic] part for the malicious claims made clearly to create employment difficulties and direct attack on the claimants [sic] livelihood.[28]
[28] Exhibit 5, page 20.
Consideration
When it comes to the question of whether disclosure of the information would be contrary to the public interest, I also consider this matter to be very finely balanced.
By reference to the Guidelines, it is clear that there are a number of relevant factors favouring disclosure. Amongst these are the fact that disclosure would potentially contribute to the administration of justice, both generally and for the applicant, and potentially contribute to the enforcement of the criminal law. Disclosure may also advance the fair treatment of the applicant in his dealings with the Bureau, albeit he is no longer employed by the Bureau and his compensation matter involving the Bureau has now been resolved. As I have indicated above, I am satisfied that it would be in the applicant’s interests to have access to the identifying information in the relevant emails, as this may assist him in establishing that the allegations are untrue and/or enable him to take action against the complainants.
On the other hand however, as the Bureau has pointed out, there are a number of significant factors weighing against disclosure. These include the fact that disclosure:
(a)Could reasonably be expected to prejudice the protection of an individual’s right to privacy;
(b)Could reasonably be expected to prejudice an agency’s ability to obtain confidential information; and
(c)Could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future.
As I have indicated above, where the public interest lies in this matter depends to a large degree on the extent to which the allegations the subject of the relevant emails are likely to have been deliberately false. If this could be clearly established then, in my view, the public interest in the applicant being able to defend himself against the allegations and potentially take further action against the complainants may outweigh any public interest in their identities being protected. However, to the extent that the allegations were made in good faith, the public interest, on balance, would dictate that the complainants’ identities be protected.
In relation to this question, although he did not give oral evidence at the hearing, the applicant has provided a great deal of information to support his contention that the allegations are false. Perhaps most relevantly, in relation to one email, he has supplied information from relevant landholders which tends to refute the allegations and he has also asserted that Bureau records show that there was only one day during the relevant period when he was in the relevant area and unaccompanied, such that he could conceivably have engaged in conduct of the kind complained of. The applicant has also pointed to similarities between two of the emails and other unusual features of the matter, including the fact that the email of 7 July 2010 appears to have been sent directly to the email address of the Regional Hydrology Manager. The applicant has also pointed out that the contents of the July 2010 email are such that, if he had engaged in the conduct complained of, he would almost certainly know who the complainant was, or at least have seen them.
I have concluded that the material provided by the applicant raises a very real likelihood that the allegations the subject of the relevant emails are deliberately false and were made maliciously. I am also satisfied that the allegations have ongoing emotional consequences for the applicant and it is significant in my view that the Bureau has expressly stated in the context of this matter that they do not regard the allegations as false but merely as unsubstantiated.
In addition however, having regard to the contents of the emails and the unsuccessful attempts which have been made to contact the supposed complainant(s), I consider that there is a real possibility that the identifying details provided by the complainant(s) are false. This raises the additional risk that persons who have not in fact made the relevant complaints may be accused of having done so if those details are disclosed to the applicant. Whilst the applicant has sought access to the relevant emails in electronic form, I do not have sufficient information before me to allow me to conclude that this would allow him, or any law enforcement agency, to trace the “true” author(s) of the emails. Nor am I confident that disclosure of the relevant information would allow the applicant to identify and locate the complainant(s) by other means.
Whilst I have great sympathy for the applicant’s predicament, having regard to the additional risk of “innocent” third parties becoming involved, together with the other matters relied on by the Bureau, I have ultimately concluded on balance that disclosure of the redacted information would be contrary to the public interest within the meaning of the Act. Although the allegations have caused great distress to the applicant, and he would like the opportunity to “clear his name”, he is no longer employed by the Bureau and the allegations are not causing him any ongoing tangible detriment. I also note that a long-running compensation matter arising from the applicant’s employment by the Bureau and relating in part to the allegations has now been resolved.
As I have indicated above, I have also taken into account the fact that it is by no means clear to me that disclosure of the relevant information would allow the applicant to trace or take action against the person(s) responsible for the allegations. It would carry some risk, however, of directing attention towards “innocent” third parties whose identities have been used in communications with the Bureau. Perhaps I should also add that, in the event any law enforcement agency was minded to pursue the matter, they would have powers to obtain relevant information from the Bureau in any event. It is not clear to me in these circumstances that provision of the relevant information to the applicant would significantly enhance the prospects of a criminal investigation, particularly given the lapse of time since the allegations were made.
Having regard to the potential risk to innocent third parties as well as the other considerations relied on by the Bureau, I have accordingly concluded on balance that disclosure of the relevant information would be contrary to the public interest. I therefore propose to uphold the position advanced by the Bureau in substantive terms, although my decision will address all of the documents caught by the applicant’s FOI request.
DECISION
The Tribunal decides that:
(1)the decision under review, which refused access to parts of the documents dated 28 January 2010, 7 July 2010, 14 July 2010 and 22 July 2010 which contain personal information, is affirmed; and
(2)in relation to the additional documents identified in the course of these proceedings as being within the scope of the applicant’s request, dated 28 January 2010, 29 January 2010, 10 February 2010, 11 February 2010 and 13 February 2010, access to the parts of those documents which contain personal information is refused.
I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ......... [Sgd] ...................................
Associate
Dated 31 July 2014
Date of hearing 4 December 2013 Date final submissions received 2 May 2014 Solicitors for the Applicant Mr E Aujard
Aujard LawyersSolicitors for the Respondent Ms C Shepherd
Australian Government Solicitor
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