Re Albanese and Chief Executive Officer of the Australian Customs Service
[2006] AATA 900
•23 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 900
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/170
GENERAL ADMINISTRATIVE DIVISION ) Re CAROLINE ALBANESE Applicant
And
CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CUSTOMS SERVICE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date23 October 2006
PlaceCanberra
Decision The decision under review is varied to the extent that access is granted to:
a) Document 20 with deletions, and
b) Documents 24, 26 and 29.
The decision under review is otherwise affirmed.
The Tribunal orders pursuant to s43(5B) of the Administrative Appeals Tribunal Act 1975 that this decision is not to come into operation until 28 days have elapsed from this date.
..............................................
Mr S. Webb, Member
CATCHWORDS
FREEDOM OF INFORMATION - searches - failure to locate document - exemptions - substantial adverse effect on management of personnel - personal information - public interest considerations - legal professional privilege - unreasonable adverse effect on business affairs - information obtained in confidence - irrelevant information - deletions - decision varied
Freedom of Information Act 1982 ss 3, 4, 11, 9, 15, 22, 24A, 40, 41, 42, 43, 58, 61, 63, 64
Administrative Appeals Tribunal Act 1975 ss 26, 35, 43
Judiciary Act 1903 ss 55N, 55ZF, 55ZG, 55ZH
Freedom of Information Memorandum Number 98
Brazil Direction
Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 36 FCR 111
Ward v Centrelink [2005] FCA 73
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Re Cook and Comcare (1996) 23 AAR 19
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
Waterford v The Commonwealth (1987) 163 CLR 54
Mann v Carnell (1999) 201 CLR 1
Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237
Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 53
REASONS FOR DECISION
23 October 2006 Mr S. Webb, Member 1. Caroline Albanese was an employee of the Australian Customs Service. In 2003 she lodged complaints about her treatment in the work place. Her complaints were investigated by Dr Kay Rollinson, an independent consultant who reported to Customs. Customs undertook further investigations on receipt of Dr Rollinson’s report. Subsequently Ms Albanese requested access to documents relating to her, especially in relation to her complaints. Customs conducted searches and identified a body of documents. Certain documents were claimed to be exempt, in whole or in part. Ms Albanese requested an internal review of that decision. The review officer decided to release two further documents and otherwise upheld the exemptions in relation to 30 documents, in whole or in part. Dissatisfied with that decision Ms Albanese applied for review by this Tribunal.
2. A preliminary issue arose concerning the scope and adequacy of searches conducted by Customs. Ms Albanese’s advocate, Mr Peter Bennett, asserted that a letter from Ms Cheryl Blanchard of Comcare to Ms Virginia Lynch of Customs dated 14 May 2004, which was referred to in a Customs letter to Comcare dated 7 June 2004 at Folio 197 file C04/00572, is missing from the documents identified by Customs as within Ms Albanese's request. Mr Bennett also asserted that a letter by Ms Annwyn Godwin of Customs to Comcare's solicitors, Sparke Helmore, dated 14 May 2004 was accompanied by attachments that were referred to in the document but which did not appear in the schedule of documents identified by Customs. I directed that further searches were to be undertaken. The searches identified additional documents that were released to Ms Albanese by order of the Tribunal pursuant to s.26 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”). However, correspondence by Ms Blanchard dated the 14th of May was not found, nor were the attachments to Ms Godwin's correspondence dated 14 May 2004. Ms Godwin filed an affidavit setting out the searches that were undertaken and the efforts made to locate the documents identified by Mr Bennett and Ms Albanese. I accept that those searches were adequate and reasonable in the circumstances, and find that all reasonable steps have been taken to locate these documents. Thus I am satisfied that access to those documents which cannot be found is appropriately refused pursuant to s 24A Freedom of Information Act 1982 (“FOI Act”).
3. In proceedings under the FOI Act the onus is on the government department or agency, in this case the Chief Executive Officer of the Australian Customs Service, to establish that the exemptions claimed are justified.[1] Discretion is to be exercised under the FOI Act “as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information”.[2]
[1] s 61
[2] s 3
4. The 30 documents in question were provided to the Tribunal pursuant to s.64 of the FOI Act. Orders restricting access to and release of these documents were given pursuant to s.63 of the FOI Act and s.35 of the AAT Act. I note that the Tribunal does not have power to grant access to a document that is exempt under the FOI Act.[3]
[3] s 58
documents outside the scope of ms albanese’s request
5. The first issue for the Tribunal to deal with concerns the scope of Ms Albanese's request and Customs’ assertion that Documents 1, 8, 11, 12, 13, 14, 15, 16, and 25 are outside the scope of that request.
6. Ms Albanese requested access to information pursuant to the FOI Act in the following terms:[4]
“ The following refers to and is a request under the provisions of the Freedom of Information Act 1982. The information requested is personal information directly concerning me…
All documents (as defined) which relate to me, or are about me or are in connection with me or which have been created, modified or otherwise dealt with by the Australian Customs Service since 1st September 2003.
This application includes all said documents but is particularly pointed to documents which;
a) relate to my complaint lodged with the ACS regarding victimisation and harassment, including Dr K. Rollinson’s report, all of the reports, witness statements, legal opinions/recommendations or any other correspondence in relation to this matter.
b) relate to my employment or medical conditions or which relate to ACS dealings with Comcare or the AAT or any other agency concerning my employment situation.”
[4] T1 folio 7
7. Ms Albanese's request for access to information is confined by its terms. The terms of her request must not be construed strictly, in the sense of pleadings or legislation for example, or in a manner that is unreasonably narrow.[5] The request must be considered in the context in which it is made, with an eye to the policy of openness that underlies the FOI Act. The issue, in essence, is whether disclosure of the information “might reasonably, as opposed to irrationally or absurdly, be considered or looked on as irrelevant to the request”.[6] If the information is found to be irrelevant to the request, the Chief Executive Officer is not required to disclose it.[7]
[5] Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683 at 692
[6] Re Russell Island Development Association Inc and Department of Primary Industries and Energy (supra) at ALD 691
[7] s 22
8. Document 1 is Dr Rollinson's résumé. Documents 8, 11 to 16 and 25 are serial e-mails concerning a third party. Having careful regard to the terms and broad thrust of Ms Albanese's request I am reasonably satisfied that these documents are not within its scope. Ms Albanese requested access to information that was about her, with emphasis on the complaints she made (and related processes and actions) and her employment. These documents cannot reasonably be placed within that frame. I note that the mere existence of a document in a file does not necessarily permit an inference that the document is relevantly or appropriately located in that file, or is concerned with the subject of the file. It may be, but sometimes the existence of a document in a file cannot easily be understood. The reason for a document being placed on a file is not always transparent, and may include an honest mistake or an inadvertent error as much as a deliberate purpose, but the absence of transparency in such matters is not solid ground for an imputation of conspiracy. Ignorance and absence of care should not too readily be interpreted as intent, and the temptation to construct conspiracy on such grounds should be resisted in the absence of other evidence. Whatever the reason in this case, I find that Documents 1, 8, 11, 12, 13, 14, 15, 16, and 25 are outside the scope of Ms Albanese’s request and access to them is appropriately refused.
documents claimed to be exempt from release
9. The second issue for the Tribunal to address concerns the exemptions claimed by Customs in the following categories:
(a)Adverse effect on management of personnel - s.40: Documents 9, 19, 22, 23, 24, 26 and 29;
(b)Personal privacy – s.41: Documents 9, 19, 21, 22, 23, 24, 26, 27 and 29;
(c)Legal professional privilege – s.42: Documents 17, 18, 20, 21, 27, 28 and 30;
(d)Business and professional affairs – s.43: Documents 2, 3, 4, 5, 6, 7 and 10.
Adverse effect on management of personnel - s.40: Documents 9, 19, 22, 23, 24, 26 and 29
10. Customs asserts that disclosure of Documents 9, 19, 22, 23, 24, 26 and 29 in their entirety would or could reasonably be expected to have a substantial adverse effect on the management of personnel by Customs. Customs says that if the conclusions or recommendations of a consultant in relation to the investigation of a personnel matter are to be published to the whole world regardless of how erroneous or inadequate they are, Customs would have to cease using independent consultants.[8] That, in Customs' submission, would be a substantial and adverse effect on Customs’ ability to manage personnel. Furthermore, Customs asserts that there is no public interest in the disclosure of these documents. Disclosure, it is said, would not further the administration of justice as Ms Albanese’s Comcare claim was successful and she is no longer employed by Customs, having recently transferred to another agency.
[8] Exhibit R1, p5
11. As will appear I do not agree.
12. Exemption from release pursuant to s.40 of the FOI Act is subject to a public interest test in which the onus is on the respondent agency, consistent with s.61, to satisfy the Tribunal that disclosure is not in the public interest.[9] If that onus is not discharged and disclosure of the documents is not contrary to the public interest the section does not apply. If the onus is discharged then it is necessary to determine whether any substantial adverse affect on Customs ability to manage its employees could reasonably be expected to result from disclosure. The term "could reasonably be expected to" in s.40(1) should be given its ordinary meaning. The point of inquiry is whether there is a reasonable expectation that a substantial adverse effect would result from disclosure. An expectation will not be reasonable if it is irrational, absurd, or ridiculous.
[9] subs40(2), Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 36 FCR 111
13. Documents 9 and 19 are Ms Rollinson's report, which were disclosed with certain deletions. The deleted material contains certain observations, findings and recommendations made by Ms Rollinson concerning Mr Eldridge. Documents 22 and 23 are communications from Ms Godwin to Mr Eldridge concerning the material not disclosed in Ms Rollinson's report. These documents were disclosed with certain material deleted. The deleted material is the same as the material deleted from Documents 9 and 19. Documents 24, 26 and 29 are claimed to be exempt. Documents 24 and 29 are e-mails between Mr Eldridge and Ms Godwin concerning Ms Rollinson's observations, findings and recommendations in relation to Mr Eldridge and subsequent actions undertaken by Ms Godwin to provide Mr Eldridge with the opportunity to respond. Document 26 is Mr Eldridge’s response in the form of a report to Ms Godwin.
14. Turning first to the public interest issue. Customs urged me to accept that there is no public interest in the disclosure of these documents and the disclosure of the deleted material would not further the administration of justice. Thus, it was said, release of the documents would be of no interest or benefit to the wider public. In her oral evidence Ms Godwin stressed the personal and professional implications for Mr Eldridge if the deleted material was to be disclosed. Those submissions do not discharge the onus on Customs to satisfy me that disclosure is contrary to the public interest.
15. There is a public interest in ensuring that serious allegations against a senior officer in public employment are properly investigated. That interest may be promoted by providing transparency in such processes, being mindful of the privacy of those concerned. I accept that there is a public interest in Customs’ ability to effectively manage its employees, particularly with regard to the independent and impartial investigation of complaints such as those made by Ms Albanese. However that must be weighed against the public interest in ensuring that complaints of a serious nature involving serious allegations of misconduct or misbehaviour in the administration of a Commonwealth agency are properly and appropriately investigated and dealt with, and all those involved are afforded procedural fairness. In that regard the public interest in the administration of justice weighs heavily in the balance and must be considered.
16. The public interest is not served by disclosing adverse observations, findings and recommendations about Mr Eldridge that were not properly investigated or substantiated, whereby he was denied procedural fairness. However, those matters were subsequently investigated and addressed, procedural fairness was provided and Ms Albanese’s complaints were concluded. It seems to me that the public interest in the administration of justice is served by the disclosure of information concerning the procedures used to investigate and address the issues concerning Mr Eldridge in Dr Rollinson’s report, and the outcome, in conclusion of the matters raised by Ms Albanese’s complaints. Carefully considering those issues in relation to the subject documents and the evidence adduced by Customs, I am not persuaded that releasing the documents (or parts thereof) would be contrary to the public interest. I so find.
17. Customs has not persuaded me that disclosure of the subject documents would be contrary to the public interest. It follows that the case for exemption of the documents under s.40 is not made out. Nevertheless, for completeness I will consider the issue of whether a substantial adverse effect on the management of personnel by Customs could reasonably be expected to result from disclosure of the information. For exemption to be justified pursuant to subparagraph 40(1)(c) the adverse effect of disclosure must be substantial. The ambiguous and imprecise meaning of the word ‘substantial’ has been commented upon in many cases.[10] It may be taken to mean large or of considerable amount on the one hand and on the other real and not nominal nor illusory.
[10] see for example Re Meschino and Centrelink [2002] AATA 627 at paragraph 17
18. The evidence given by Ms Godwin concerning the purported substantial adverse effect that could be expected to result from disclosure was in general terms. Her evidence was that disclosure of this information would result in Customs ceasing its practice of using independent consultants to investigate complaints such as those made by Ms Albanese. That, it was said, constituted a substantial adverse affect on Customs ability to manage personnel. However, the evidence does not compel me to that conclusion. Dr Rollinson's report has been released with some minor and very specific deletions made. It has been disclosed that Mr Eldridge was given the opportunity to fully respond to Dr Rollinson's opinions, findings and recommendations set out in the deleted material as he was denied procedural fairness. His response to that material in Document 26 directly addresses matters complained of by Ms Albanese and investigated by Dr Rollinson. Ms Godwin provided Mr Eldridge's response to Dr Rollinson, who declined to make any changes to her report as a result (Documents 27 and 28 - released in part). The manner in which the issues concerning Mr Eldridge were finally dealt with by Ms Godwin are set out in Document 29. Disclosure of the information may cause Mr Eldridge some embarrassment or discomfort. However neither of those consequences constitute a substantial adverse affect on the management of personnel by Customs. I am not satisfied that disclosure of the material deleted from Dr Rollinson's report, which otherwise has already been released, can reasonably be expected to result in any diminution in the use of consultants by Customs to investigate personnel matters. There is no evidence other than the general statements made by Ms Godwin to support the claim. I am satisfied that any such result is quite remote from disclosure of the information in question to the extent that the proposal is not reasonable.
19. It is possible that disclosure of the controversial parts of Dr Rollinson’s report may indeed have had an adverse effect on Mr Eldridge and on Customs’ ability to manage its employees at the time Mr Eldridge had not been provided with procedural fairness. However, subsequently Mr Eldridge was afforded procedural fairness and was given an opportunity to respond to Dr Rollinson's conclusions. Viewed in that light it is difficult to see how disclosure of this information some years later, in circumstances in which Ms Albanese is no longer employed by Customs and Mr Eldridge no longer works for Customs in South Australia, could reasonably be expected to result in the adverse affects proposed by Customs. If anything, it seems to me, disclosure of this information could reasonably be expected to result in the adoption of the principles of procedural fairness and natural justice by consultants engaged by Customs to investigate personnel matters, that is to ensure procedural fairness in their dealings with Customs officers.
20. Finally on this subject it appears that Customs is asserting that the substantial nature of the adverse effect is, at least in part, related to the impartiality and independence that would be lost if consultants were no longer engaged to investigate personnel matters because of the risk that their opinions, findings and recommendations, whether right or wrong, may be disclosed publicly. However, the difficulty in this case is not cast in such general terms. Dr Rollinson’s report has been substantially disclosed by Customs. That disclosure is not controversial. The only parts of Dr Rollinson's report protected from disclosure by Customs are certain opinions, findings and recommendations concerning Mr Eldridge in relation to which he was denied procedural fairness. Once those matters were dealt with, as subsequently occurred, the grounds for asserting that a substantial adverse effect would result from disclosure, as contended by Customs, substantially dissolved.
21. Customs has not discharged the onus of persuasion that disclosure of the documents would be contrary to the public interest. Nor has Customs persuaded me that any substantial adverse effect could reasonably be expected to result from disclosure. It follows and I find that Documents 9, 19, 22, 23, 24, 26 and 29 or parts thereof are not exempt from release pursuant to subparagraph 40(1)(c) of the FOI Act.
Personal information – s.41: documents 9, 19, 21, 22, 23, 24, 26, 27, 28 and 29
22. Customs asserts that Documents 9, 19, 21, 22, 23, 24, 26, 27, 28 and 29 are exempt from release because releasing them would involve the unreasonable disclosure of personal information about a person.
23. The term "personal information" is defined at s.4 of the FOI Act. That term and the term "personal affairs" which previously applied have been discussed in cases before the Federal Court and this Tribunal.[11] Consistent with those authorities "personal information" is, broadly, information which concerns or affects an individual whose identity is apparent or may be ascertained from the information. The question of whether disclosure of such information would be unreasonable is a separate issue, the determination of which requires consideration of all the circumstances, including the nature of the information, the circumstances in which it was obtained, the views of the person who is the subject of the information concerning disclosure, and the currency or present relevance of the information.[12]
[11] Ward v Centrelink [2005] FCA 73 at paragraphs 27-29; Lockhart J in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 432 to 436
[12] Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at paragraph 259
24. The documents or parts thereof that are claimed to be exempt on personal information grounds are, with the exception of Documents 21, 27 and 28, the same documents that were claimed to be exempt pursuant to s.40(1)(c). Documents 21, 27 and 28 have been released in part with deletions. The deleted material in Document 21 is legal advice and the deleted material in Documents 27 and 28 refers to the gist of the legal advice.
25. Information concerning an employee's working environment is not personal information in all cases or by definition under the FOI Act, whereas information concerning the work performance or capacity of an employee plainly is personal information.[13] The documents in issue contain information about the work performance and conduct of named persons, including Ms Albanese, the identity of whom would be apparent if the documents were fully disclosed. Thus, I am satisfied that these documents contain personal information. I so find.
[13] Re Cook and Comcare (1996) 23 AAR 19 at 27
26. When considering whether disclosure of personal information of a person would be unreasonable in the circumstances it is necessary to have regard to the objects of the FOI Act.[14] The general right of access established by subs 11(2) of the FOI Act is conditioned by heads of exemption set out in Part IV of the Act. The ‘personal information’ exemption is further conditioned by subs 41(2) and what Deputy President Hall described in Re Anderson and Australian Federal Police (1986) 4 AAR 414 at 426-427 as the personal right of an individual to have access to documents relating to his or her personal affairs. Subsection 41(2) provides for a personal right of access to information of the person that may otherwise be exempt from general release. Difficulties arise when the personal information of an applicant is intertwined with the personal information of another person. In those circumstances it is necessary to balance the interests of both people when deciding whether disclosure would be unreasonable in the particular circumstances. That is especially so as disclosure under the FOI Act is not specific to an individual but is to the world at large.
[14] s.3
27. The nature and subject of the documents are set out in the Schedule to Exhibit R1. It is not necessary to repeat that information here. The documents and the information in issue were brought into existence as a result of the investigation of Ms Albanese’s complaints against her employer and related procedures concerning Mr Eldridge. Dr Rollinson was engaged to investigate Ms Albanese’s complaints and made certain adverse comments in her report that Customs considered were not well founded as procedural fairness had been denied. Consequently Ms Godwin initiated procedures to address Dr Rollinson’s comments and to provide procedural fairness. Those procedures resulted in Mr Eldridge providing a detailed report to Ms Godwin in which he directly addresses the issues raised by Dr Rollinson and the substance of Ms Albanese’s complaints. In receipt of that material Ms Godwin concluded the investigation of Ms Albanese’s complaints.
28. The subject matter of the disputed documents and the identity of the other named party (Mr John Eldridge) have been disclosed to Ms Albanese and were disclosed generally during the Tribunal’s public hearing of this matter.[15] Thus disclosure of that personal information is unlikely to be unreasonable. However, the documents contain other personal information of Mr Eldridge and that information is, in part at least, inextricably intertwined with personal information of Ms Albanese.
[15] see Transcript and Respondent’s Statement of Facts and Contentions at paragraph 13
29. The matters in issue occurred a number of years ago and their relevance has diminished in those years. At the time Mr Eldridge was a senior public official employed by Customs. He remains so today albeit performing different duties in a different location. Ms Albanese is no longer employed by Customs. Mr Eldridge plainly stated that he opposed disclosure of his personal information in these documents. I accept that Mr Eldridge may suffer embarrassment if his personal information is divulged and the documents are released. His opposition weighs against disclosure.
30. However, it appears to me that the prospect of Mr Eldridge suffering any adverse effect in his career or in his employment by Customs, as asserted by the Respondent, has diminished with the passage of time, and is presently negligible. That is so because he was afforded procedural fairness by Ms Godwin and ultimately no adverse findings were made against him. The matter was closed as far as Customs and Mr Eldridge were concerned. However, the matter was not closed as far as Ms Albanese was concerned. She was not aware of what had occurred between Customs and Mr Eldridge in relation to the investigation of her complaints or how that aspect of the investigation into her complaints had been resolved. Mr Eldridge's response to Dr Rollinson's report, including the opinions, findings and recommendations contained therein, is germane to Ms Albanese’s complaints. Simply, had Mr Eldridge been afforded procedural fairness in the first place, he could reasonably have expected to find his evidence represented in Dr Rollinson’s report concerning Ms Albanese’s complaints. That did not occur, and his later evidence is neither represented in Dr Rollinson’s report nor has it been disclosed. The absence of transparency in such circumstances may lead Ms Albanese to speculate about unfairness, even to the extent of conspiracy. Ms Albanese has a powerful interest in obtaining access to information about the manner in which her complaint was investigated and the outcome of that investigation. Her interest is consistent with the public interest in the administration of justice and the objects of the FOI Act and weighs in favour of release.
31. Although the public interest aspects of this case are not strong it is necessary to consider the public interest in relation to the test of unreasonable disclosure. While not a public interest test itself, the consideration of unreasonableness requires consideration of the often competing public interests in disclosure of information about the workings of government, on the one hand, and on the other protecting a person's personal information from disclosure against their wishes when the only interest that is served is one of mere curiosity.[16] Customs asserts that Ms Albanese’s curiosity about the information is not sufficient reason to release the contentious information and, in so doing, to overrule Mr Eldridge’s opposition to disclosure of his personal information. However, I am satisfied that Ms Albanese’s curiosity is not the only interest that would be served by disclosure of the information. There are public interest considerations concerning the complaints Ms Albanese made and the manner in which they were addressed that are not so easily dispensed with.
[16] Heerey J in Colakovski v Australian Telecommunications Corporation (supra) at FCR 441
32. Even if Mr Eldridge gave his report to Ms Godwin on the basis that it would remain confidential, and I am not satisfied that he did, the report addresses the substance of Ms Albanese’s complaints concerning management and behaviour issues in Customs, in relation to which there is a strong public interest that exceeds mere curiosity about any individual. The public interest in the administration of government is in sharp focus when the probity and behaviour of senior public officials are in issue: the more senior the public official, the greater the public interest. Senior public officials are not simply expected to conduct their public offices and official duties properly and according to law, the public interest is served if they are seen to do so. While the disclosure of unsubstantiated findings against Mr Eldridge may excite curiosity without necessarily serving any other interest, in which case disclosure of his personal information may be unreasonable, the disclosure of information concerning the procedures followed to address such Ms Albanese’s complaints and subsequently Dr Rollinson’s report into her complaints, and any resulting conclusions, may serve the public interest, in which case disclosure of Mr Eldridge’s personal information may not be unreasonable. Furthermore the public interest is served by ending speculation that is potentially damaging to Ms Albanese and that may undermine public confidence in the probity of senior public officials and the management of Customs. Those factors weigh heavily in the balance in favour of release.
33. Is it unreasonable to disclose, generally to the public at large, Dr Rollinson's observations, findings and recommendations concerning Mr Eldridge as a result of her investigation of Ms Albanese's complaints, in relation to which it appears he was denied procedural fairness (Documents 9, 19, 22 and 23)? I am satisfied that it is, as to do so would unreasonably disclose Mr Eldridge’s personal information. Ms Albanese’s interest in that information is not sufficient reason to warrant its diasclosure. Is it unreasonable to disclose information about the procedures Ms Godwin followed and the way in which she dealt with the issues raised by Dr Rollinson's report concerning Mr Eldridge (Documents 21, 24, 27, 28 and 29)? I am satisfied that it is not unreasonable to disclose Mr Eldridge’s personal information in these documents. The documents concern procedures followed by Customs to conclude the investigation of Ms Albanese’s complaints following Dr Rollinson’s report and the controversial comments and findings therein. The public interest in the probity and behaviour of senior public officials, and in the management of government agencies according to law, is thus served. Furthermore Ms Albanese has a strong interest in the disclosure of information about the way in which her complaints were finally dealt with. Is it unreasonable to disclose Mr Eldridge’s submission to Ms Godwin, in which he responds directly to Ms Albanese’s complaints and the matters investigated by Dr Rollinson (Document 26)? I am satisfied that it is not unreasonable to disclose this document. The personal information of Mr Eldridge is inextricably intertwined with personal information of Ms Albanese in this document. Ms Albanese has a strong interest in the release of personal information about her and in the disclosure of information addressing the substance of her complaints.
34. Thus it follows and I find that:
(a)The information deleted from Documents 9, 19, 22 and 23 is personal information of Mr Eldridge that it is unreasonable to disclose. That material is exempt from release pursuant to subs 41(1) of the FOI Act.
(b)The deleted information in Documents 21, 27 and 28 does not contain personal information of Mr Eldridge that it would be unreasonable to disclose and is not exempt from release pursuant to subs 41(1). However, as will appear, this material is exempt on the grounds of legal professional privilege.
(c)Documents 24, 26 and 29 contain personal information of Mr Eldridge that it is not unreasonable to disclose and those documents are not exempt from release pursuant to subs 41(1).
Legal professional privilege – s.42: documents 17, 18, 20, 21, 27, 28 and 30
35. Customs asserts that Documents 17, 18, 20, 21, 27, 28 and 30 are exempt from release on the grounds of legal professional privilege.
36. Section 42 of the FOI Act provides that if a document would be privileged from production in legal proceedings on the ground of legal professional privilege then it is exempt from disclosure under the FOI Act.
37. Legal professional privilege applies to confidential communications between a lawyer and his or her client were brought into existence for the dominant purpose of obtaining or giving legal advice, or in reference to litigation in contemplation or on foot at that time.[17] The solicitor client relationship lies at the heart of the privilege.[18]
[17] Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
[18] Waterford v The Commonwealth (1987) 163 CLR 54
38. Document 17 contains e-mail communications between the Australian Government Solicitor and Customs with the dominant purpose of providing legal advice. I am satisfied that these communications were confidential within the solicitor client relationship and were brought into existence with the dominant purpose of providing legal advice. The document would be protected from production in legal proceedings on the basis of legal professional privilege. However that is only so long as there has been no waiver, implied or otherwise, of the privilege. Privilege may be waived, impliedly at least, if the contents of the legal advice are disclosed to a third party in a manner that is inconsistent with the maintenance of privilege.[19] The legal advice in Document 17 was disclosed, in essence, to Dr Rollinson by Ms Godwin on 27 January 2004.[20] Dr Rollinson was a contractor to Customs for the purpose of investigating Ms Albanese’s complaints and was bound by confidentiality clauses in her contract of engagement.[21] The disclosure of legal advice to Dr Rollinson in those circumstances is not inconsistent with the maintenance of privilege. Thus I am satisfied that legal professional privilege in relation to Document 17 was not impliedly waived on 27 January 2004. It follows that Document 17 is exempt from release pursuant to subs 42(1) of the FOI Act.
[19] Mann v Carnell (1999) 201 CLR 1 at 29
[20] Document 27
[21] see clauses 16 and 17 of Document 9
39. Document 20 is a minute from Ms Godwin to the Chief Executive Officer of Customs that has been released with deletions. The gist of privileged legal advice is anotated in the second handwritten paragraph on the minute. That material is protected from disclosure pursuant to subs 42(1) on the grounds of legal professional privilege. However there is nothing in the other handwritten paragraphs that is protected by privilege. I am satisfied that it is not unreasonable to disclose the name of the person identified in those paragraphs, being his personal information, as the named person, Mr Eldridge has been disclosed and is known to Ms Albanese. The deleted names in those two paragraphs are not protected from disclosure under any head of exemption under the FOI Act. I so find.
40. Document 21 has been released with deletions. The deleted material is a confidential communication of legal advice from the Australian Government Solicitor to Ms Godwin. I am satisfied that the communication was created for the dominant purpose of providing legal advice and is exempt from release on the grounds of legal professional privilege pursuant to subs 42(1) of the FOI Act.
41. Documents 27 and 28 are communications between Ms Godwin and Dr Rollinson that had been released with deletions. The deleted material contains the gist of legal advice that is protected from disclosure on the grounds of legal professional privilege. Thus I am satisfied that the deleted parts of Documents 27 and 28 are exempt from release on the grounds of legal professional privilege pursuant to subs 42(1).
42. The legal advice set out in Documents 18 and 30 is in reference to litigation then on foot in relation to Ms Albanese’s compensation claims against Comcare. These documents satify the dominant purpose test are protected by legal professional privilege and are exempt from release pursuant to subs 42(1) of the FOI Act.
43. Mr Bennett raised issues in relation to s.9 of the FOI Act. However, being mindful of the principles discussed by Emmett J in Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 at pars [39]-[43], I am satisfied that none of the documents over which legal professional privilege is claimed are documents that are within the terms of s.9 of the Act. The finding of privilege is not vitiated on that basis.
44. Mr Bennett asserted that the Tribunal was bound by the Brazil direction and Freedom of Information Memoranda concerning any claim of privilege, to the extent that the Tribunal has power to review the preliminary decision of an agency to assert privilege. I do not agree. Strictly, the Tribunal is not so bound, even though the policy set out in policy guidelines should be followed unless there is a good reason not to. Nonetheless, the Tribunal does not have jurisdiction to review the preliminary decision of Customs to claim legal professional privilege in isolation from the merit of the claim of privilege. The powers of the Tribunal are set out at s.58. The powers conferred on the Tribunal by subs 58(1) are subject to the other provisions of s.58. The Tribunal is bound by subs 58(2) and does not have the power to grant access to documents that are exempt under the Act. Thus it can be seen that the Tribunal does not have power to grant access to documents if an agency has made a discretionary decision not to grant access because the documents are exempt. Considering s.55 it is clear that the decision by an agency to refuse to grant access to a document is a decision that is within the power of the Tribunal to review once jurisdiction is enlivened. The terms of subs 58(1) are broad and may include decisions that are ancillary to requests for access to information under the Act. Under the Act the Tribunal exercises the powers of the person who made the decision that is under review. Section 58 does not expand those powers. Thus the Tribunal does not have power to review a preliminary decision by an agency to claim privilege without reviewing the decision under review, and thereby testing the merit or validity of the claim.[22]
[22] Bennett v Chief Executive Officer of the Australian Customs Service (supra) at paragraphs [71]-[72]; Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 53 at paragraph [52]
45. It is germane to consider whether any ‘real harm’ would result from disclosure of the communications that would otherwise attract privilege.[23] I am satisfied that real harm would probably be done if the confidential communications between Customs and AGS were to be released. While the communications and materials in issue are not especially sensitive or harmful to Customs in themselves, as a result of the particular contents, real harm is likely to be done to Customs if the confidence of Customs officers when obtaining legal advice in preparation for litigation is broken and the confidential communications and materials that were generated for the purpose of legal advice and representation in litigation are exposed to public scrutiny. Were that to occur it could reasonably be expected that Customs officers in the future may be less inclined to seek independent legal services and advice, and may be reticent or circumspect when disclosing relevant information in that context. Such changes would be likely to cause substantial prejudice to Customs in the conduct of its affairs. Thus, it is probable that real harm would be done to Customs if such circumstances were to occur. In those circumstances it is appropriate to maintain the confidentiality of the communications and materials in question.
[23] Bennett v Chief Executive Office of the Australian Customs Service (supra) at par [49]
46. Mr Bennett asserted that the Tribunal is bound by Legal Services Directions under the Judiciary Act 1903.[24] The finding of privilege over the subject documents, in whole or in part, is not contrary to Legal Services Directions issued by the Attorney-General pursuant to s.55ZF of the that Act. The finding of privilege is not vitiated on that basis.
[24] See ss 55N, 55ZF, 55ZG, 55ZH of the Judiciary Act 1903
Business and professional affairs – s.43: documents 2, 3, 4, 5, 6, 7 and 10
47. Customs asserts that Documents 2, 3, 4, 5, 6, 7 and 10 are exempt from release, in part at least, on the grounds that release of the documents would involve disclosure of information concerning Dr Rollinson's business and professional affairs that could reasonably be expected to adversely affect her lawful business or professional affairs.
48. Ms Albanese plainly stated during the hearing that she was not interested in obtaining access to information about Dr Rollinson's bank account details or other business or professional information concerning Dr Rollinson of a similar character.
49. Documents 2, 3, 4, 5, 6, 7 and 10 have been released with only minor deletions. The deleted material is information about Dr Rollinson's bank account details, her Australian business number, and the hourly charge out rates negotiated under contract. That being so and considering Ms Albanese's concession I am satisfied that the deleted parts of these documents are exempt from release pursuant to subs 43(1) of the FOI Act.
Conclusion
50. Documents 24, 26 and 29 are not exempt from release pursuant to subparagraph 40(1)(c) or subs 41(1) of the FOI Act. These documents are to be released. The second hand-written paragraph of annotations to Document 20 is exempt from release pursuant to 42(1). That document is to be copied for release with the exempt information deleted pursuant to subs 22(1). Otherwise the exemptions claimed are affirmed by this decision.
51. It follows that the decision under review is varied to the extent that access is granted to Document 20 with deletions, and to Documents 24, 26 and 29 in full.
52. Customs requested that the Tribunal stay the coming into effect of the decision for at least 28 days pursuant to subs 43(5B) of the AAT Act in order to ensure that disclosure as a consequence of this decision will not render any appeal otiose. For that reason the request is granted.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed: Peter Edwards
AssociateDate of Hearing 18 May 2006
Date of Decision 23 October 2006
Advocate for the Applicant Peter Bennett
Solicitor for the Respondent Lachlan Kennedy
6
11
0