QVFT and Secretary, Department of Immigration and Citizenship
[2012] AATA 501
•27 June 2012
[2012] AATA 501
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2007/6211
Re
QVFT
APPLICANT
And
Secretary, Department of Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 27 June 2012 Place Sydney The decision under review is affirmed.
...................................[sgd].....................................
Senior Member A K Britton
CATCHWORDS
FREEDOM OF INFORMATION - determination on remittal under review - unreasonable disclosure of personal information - substantial and unreasonable diversion of resources - decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) - s 21A
Freedom of Information Act 1982 (Cth) - ss 24, 24(6), 41(1)
Migration Act 1958 (Cth) - 486N
CASES
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429; [1991] FCA 152
WRITTEN REASONS FOR DECISION REVISED FROM THE TRANSCRIPT
Senior Member A K Britton
27 June 2012
I am going to give brief reasons for my decision today. I have decided to do so given the narrow scope of issues that remain to be determined, and, the significant delay in the matter being finalised.
These are my brief reasons for decision, and excuse me while I refer at times to some documents. In 2008, the Applicant in these proceedings, who is referred to by the pseudonym QVFT, applied to the Administrative Appeals Tribunal for review of a decision made in respect of requests for documents made under the Freedom of Information Act 1982 (Cth) (the FOI Act), to the Department of Immigration and Citizenship. That application has largely been determined (Re QVFT and Secretary, Department of Immigration and Citizenship [2011] AAT 763). In that decision, which I will refer to in these reasons as the “first decision”, parts of the decision under review were remitted to the Respondent under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth). These reasons address those parts of the decision remitted to the respondent.
On remittal, on 23 December 2011, the Respondent decided to release to the Applicant in full three documents: document 69 of schedule 2, document 2 of schedule 1, and, document 122 of schedule C. On 13 January 2012, a further four documents: document 19, document 74 and 108 were released in full. The Respondent also decided not to release in full folio 157 of document 19, on the ground that part of the document was exempt under section 41(1) of the FOI Act (“unreasonable disclosure of personal information”).
The issues that remain to be determined are whether the decisions made on remittal, to refuse to release to the Applicant, without deletions, folio 157 of document 19 on the ground that it is exempt under section 41(1) of the FOI Act; and to refuse to deal further with the applicant’s request for documents made in relation to application 2007/6211 on the ground that to do so “would substantially and unreasonably divert the resources of the Department” (section 24(1) of the FOI Act), are the correct or preferable decisions.
Is folio 157 of document 19 an exempt document?
The Secretary’s original decision to refuse to grant access to this document on the ground that it was irrelevant to the Applicant’s request was, as noted, remitted for reconsideration. On reconsideration, the Secretary decided to grant access to all of document 19 apart from a portion of folio 157 which was deleted under section 22 of the FOI Act. The Secretary claims that without the deletion, the document would be exempt under section 41(1). A document will be exempt under section 41(1) if its disclosure under the Act would involve the unreasonable disclosure of personal information about any person.
In the first decision, I outlined the principles applicable to this provision (at [64] to [72]). After making an initial determination that a document is exempt, the decision-maker must assess whether it is reasonably practicable to make a copy of the document with such deletions so it would no longer be an exempt document. I have examined a copy of folio 157 in unredacted form. It reveals the identity of two people who were the subjects of reports provided by the Secretary of the Department to the Commonwealth Ombudsman, apparently under section 486N of the Migration Act 1958 (Cth).
There can be no argument that the deleted material — the names of the two people who were the subjects of the reports to the Ombudsman — constitutes personal information. As the Applicant correctly points out today, and in his earlier submissions, section 41(1) does not automatically deem all personal information to be exempt material, rather it requires the decision-maker to make an assessment as to whether disclosure of that information would be unreasonable.
I noted in the first reasons for decision that the question of whether disclosure will be unreasonable has, at its core, “public interest considerations” (and cited the decision of the Federal Court Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429).
Without anything further, I am unable to identify any public interest in the disclosure of the names of detainees of Immigration Centres. I further note that the information in relation to those persons has been made available to the Ombudsman who has an oversight role in respect of those persons. There is nothing that the Applicant has said today, or on previous occasions, that points to any public interest in the disclosure of this private information. And for that reason, I have decided to affirm the decision not to release to the Applicant folio 157 of document 19 with the deleted material.
Would processing of the FOI request substantially and unreasonably divert the resources of the Department?
In the first decision, I remitted for reconsideration the Secretary’s decision to refuse to deal further with the applicant’s request for documents on the grounds that to do so would substantially and unreasonably divert the resources of the Department from its operations (section 24(1) of the FOI Act). I decided to remit that decision because the Secretary had failed as required by section 24(6) of the FOI Act, to issue a notice to the applicant: Re QVFT and Secretary, Department of Immigration and Citizenship [12] -[18]).
Section 24 prevents a decision-maker from refusing to grant access to a document under that provision unless the applicant has been issued a written notice, as prescribed by section 24(6). The applicant must be given a written notice stating an intention to refuse access, identifying an officer of the agency or a member of staff with whom the applicant may consult with a view to making the request in a form that would remove the ground for refusal, and, a reasonable opportunity to consult. Finally, the decision–maker is required, as far as is reasonably practicable, to provide the applicant with any information that would assist the making of the request in such a form (section 24(6)(e)).
In a letter dated 13 January 2012, Anouska Moore, (then) acting assistant director of the freedom of information and private policy section of the Department, wrote to the Applicant in what was purported to be a notice provided under section 24(6) of the FOI Act, invited the applicant to narrow the scope of his request. Attached to that letter was a schedule of documents identified to fall within the scope of the Applicant’s request, stated to be provided to assist the Applicant in undertaking that task. Following that letter, there was an exchange of correspondence between officers of the Department and the Applicant, in which, amongst other things, the Applicant challenged Ms Moore’s authority to deal with his application. On 3 February 2012, Mr Rowan Patterson, the (then) acting assistant director of the freedom of information and private policy section of the Department, wrote to the Applicant, asserting that he had made no efforts to “re-scope” the class of documents requested, despite being invited to do so, and went on to make a decision refusing to grant access to the documents under section 24 of the FOI Act.
Before continuing, I think it is useful to say something about the scope of the documents that were requested by the Applicant. The initiating application was made by letter to the Refugee Review Tribunal, and the request was made in the following terms:
All records on me available under the Act, including, but not limited to, copies of the documents created by the RRT; (2) copies of all the documents received by the RRT; (3) copies of all documents considered by the RRT in making the decision in my case; and (4) the transcript of the hearing.
Subsequently, there was discussion between the parties about the scope of the request, and in a letter to the tribunal on 9 May 2009, the Applicant set out what he considered to be the various classes of documents which fell within the scope of his request. They included the operational procedures used by GSL (a private detention centre service provider) or the Department, for the running of all immigration detention centres; all documents relevant to GSL’s contractual relationships with internet service providers; all documents relevant to GSL’s role in providing internet services to detainees, and so on. For reasons of time, I will not list each requested category of documents.
The first issue I am required to determine is whether it is open to the Secretary to refuse the applicant’s request for documents. This raises the question of whether a valid notice was issued under section 24(6) of the Act. As the Applicant correctly points out, in these proceedings — in today’s hearing — the Act prescribes the form of written notice that must be given, and requires that he be given a reasonable opportunity to consult. He contends today that he was not given a reasonable opportunity to consult and that paragraph (e) of section 24(6) was not complied with. I will read onto the record that paragraph:
As far as is reasonable practicable, provided the applicant with any information that would assist the making of the request in such a form [which would remove the ground for refusal under section 24(1)]
A review of the material reveals that there was an exchange of correspondence on this point. The Applicant requested that the decision-maker identify — and to quote from the email sent by him to Mr Patterson on 27 February 2012:
Can you identify which files you can release with maximum number of pages? (a) How many maximum number of pages you will release if I select those files; (2) can you identify which files you can release with minimum number of pages; and (a) how many maximum number of pages you will release if I select those files?
In reply, Mr Patterson said in essence that he was unable to provide that information because to do so would of itself result in a substantial diversion of resources.
Having regard to the exchange of correspondence between the parties, it seems to me that the Secretary has given the Applicant a reasonable opportunity to consult about the scope of the request for documents in a form that would remove the ground for refusal. Not every opportunity was given, but in all the circumstances, I conclude that the opportunity given was reasonable.
Therefore, the remaining question to be determined is whether or not the decision to refuse to grant access under section 24(1) is the correct and preferable decision. This requires a determination of whether or not the granting of the application would substantially and unreasonably divert the resources of the Department from its other operations. In addressing that issue, I am instructed to have regard to those matters listed at section 24(2) of the FOI Act.
In support of its contention that to deal with the request would result in a substantial and unreasonable diversion of resources, the Respondent relies on affidavits prepared by officers of the Department, Mr David Turner and Mr Rowan Patterson and tendered in these proceedings. Mr Patterson sets out in his affidavit dated 20 May 2011 the documents identified at that stage as falling within the scope of the Applicant’s request. He stated that the documents identified include over 13,000 folios, or pages, and would require the Department, among other things, to consult with 16 external organisations in respect of those documents. His estimate, which he stood by in his evidence given today, is that it would involve 242 days being spent to answer that request. It is on that basis that the Respondent contends that an unreasonable — a substantial and unreasonable diversion of resources would result.
The FOI Act creates a right to access to information in the possession of government. A decision to refuse access under section 24(2) is not one that can be made lightly, given the stated objects of the Act (section 3). That said, it is important to have regard to the caveat that a request for documents may be refused if it would result in substantial and unreasonable diversion of resources. I note that in respect of this application and the Applicant’s other application (2008/3575), the Department has already expended significant resources in answering his request, and I have formed the opinion that to further deal with the request in its current form would constitute an unreasonable and substantial diversion of the resources. It goes without saying that there are many calls on the Department’s resources, and, in my view, that is a relevant factor to take into account in determining whether the power to refuse to grant access under section 24(2), can be exercised. I have formed the view that this is an appropriate case in which section 24(2) can be relied upon to refuse to grant access to further documents.
I affirm the remitted decision. That concludes these proceedings.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ..............................[sgd]..........................................
Associate to Senior Member A K Britton
Dated 27 June 2012
Date(s) of hearing 27 June 2012 Applicant In person Solicitors for the Respondent Ms A Linacre, Clayton Utz
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