Richardson and Commissioner of Taxation and Anor

Case •

[2004] AATA 367

•

7 April 2004


CATCHWORDS – FREEDOM OF INFORMATION –

access to documents – exemptions – whether internal working documents – whether disclosure would be contrary to the public interest – whether disclosure would affect enforcement or administration of the law and protection of public safety – whether disclosed under Income Tax Assessment Act 1936 – whether information respecting affairs of another person – whether disclosure would involve unreasonable disclosure of personal information – whether disclosure would found an action for breach of confidence – decision set aside.

Freedom of Information Act 1982 ss. 4, 11, 12, 13, 22, 24, 24A, 27, 36, 37, 38, 41, 43 and 45
Income Tax Assessment Act 1936 ss. 8, 16, 263 and 264
Customs Act 1901 s. 234
Freedom of Information Amendment Act 1991 (Act No.137 of 1991)

Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626
Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112
Re Waterford and Department of the Treasury (No.2) (1984) 5 ALD 588
Re James and Others and Australian National University (1984) 6 ALD 687
Kavvadias v Commonwealth Ombudsman (1984) 2 FCR 64
Harris v Australian Broadcasting Corporation and others (1983) 50 ALR 551
Smith and Aboriginal and Torres Strait islander Commission [2000] AATA 512
Booker and Department of Social Security (AAT 6189, 13 September, 1990)
Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626
Kelly v JRA Ltd (1990) 92 ALR 651
Re Bayliss and Department of Health and Family Services (1997) 48 ALD 443
Attorney-General’s Department v Cockcroft (1986) 64 ALR 97
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163
Re Collie and the Deputy Commissioner of Taxation (1997) 45 ALD 556
Corrs Chambers Westgarth and Commissioner of Taxation [1998] AATA 756
Re Hart and Deputy Commissioner of Taxation [2002] AATA 1190
Re Mann and Federal Commissioner of Taxation (1987) 87 ATC 2010
Re Morton and Australian Securities Commission (1997) 23 ACSR 454
Schokker & Anor v Federal Commissioner of Taxation (1996) 96 ATC 4885
Zalcberg and Australian and Overseas Telecommunications Corporation (AAT 8015, 12 June, 1992)
Wiseman v The Commonwealth, Full Court of the Federal Court, 24 October, 1989, 637/1989
Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Colakovski v Australian Telecommunications Corporation (1991) 13 AAR 261
Corrs Pavey Whiting and Byrne v Collector of Customs, Victoria (1987) 13 ALD 254
Kamminga and Australian National University (1992) 26 ALD 585

DECISION AND REASONS FOR DECISION [2004] AATA 367

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          V2003/127
GENERAL ADMINISTRATIVE DIVISION     )          

Re                JOHN BARRY RICHARDSON

Applicant

AndCOMMISSIONER OF TAXATION

Respondent

AndMARY-ANN MARTINEK

Party Joined

DECISION

Tribunal:                  Deputy President S A Forgie
Date:  7 April, 2004
Place:  Melbourne

Decision:The Tribunal:

1.set aside the decision of the respondent dated 11 December, 2002; and

2.substitute a decision that:

(1)the letter dated 27 June, 2002 (Letter 4) is exempt from disclosure pursuant to s. 45 of the Freedom of Information Act 1982;

(2)the following passages of letters dated 25 March, 2002 (Letter 1), 5 April, 2002 (Letter 2) and 24 April, 2002 (Letter 3) are exempt from disclosure pursuant to s. 38;

(a)     Letter 1

The passages outlined in yellow highlighter are exempt pursuant to s. 38 together with the passage beginning “and” at the end of line 16 of page 3 and concluding at the end of that sentence.

(b)     Letters 2, 3 and 4

The passages of the documents outlined in yellow highlighter are exempt pursuant to s. 38; and

(3)the applicant may have access to those parts of Letters 1, 2 and 3 that are not exempt.


S A FORGIE
  Deputy President

REASONS FOR DECISION

On 3 February, 2003, the applicant, Mr John Barry Richardson, applied for review of a decision dated 11 December, 2002 and made on behalf of the respondent, the Australian Taxation Office (“ATO”).  The ATO’s decision was to refuse Mr Richardson access to certain documents that it had identified as coming within a request for access that he had made to it under the Freedom of Information Act 1982 (“FOI Act”). It did so on the basis that the documents he sought were exempt within the meaning of ss. 37(1)(b), 38 or 45 of the FOI Act. Ms Mary-Ann Martinek, who was the author of documents sought by Mr Richardson, was joined as a party to the proceedings on 28 March, 2003.

  1. At the hearing, Mr Richardson represented himself. The ATO was represented by Mr Niall of counsel and Ms Martinek by a friend, Mr Baird. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence. No oral evidence was given.

THE REQUEST AND THE DECISION

  1. On 8 July, 2002, Mr Richardson requested, in essence, access to documents that the ATO had received from Ms Mary-Ann Martinek and which related to him. The ATO identified four documents as coming within Mr Richardson’s request. They were described as letters dated 25 March, 2002 (“Letter 1”), 5 April, 2002 (“Letter 2”), 24 April, 2002 (“Letter 3”) and 27 June, 2002 (“Letter 4”) which related to the affairs of a number of persons including Ms Martinek. Access to those documents was denied by the ATO on the basis that the documents were exempt pursuant to ss. 37(1)(b), 38 and 45.  On internal review, the ATO affirmed that decision on the same grounds.

THE ISSUES

  1. At the hearing, the ATO did not pursue its claim that the documents were exempt pursuant to ss. 37(1)(b) and 45 of the FOI Act but did pursue its claims that they were exempt pursuant to s. 38.  Mr Niall also raised the issue of s. 41 but made no submissions in relation to it. Contrary to the ATO’s position, Mr Baird, however, did claim that the documents were exempt pursuant to ss. 37(1)(b) and 45 and submitted further that they were exempt pursuant to ss. 36(1)(b) and 37(1)(c).  The issues in this case, therefore, are whether the documents, or any parts of them, are exempt by reason of:

s. 36: whether the documents are documents within the meaning of s. 36(1)(a) (i.e. are they what are often described as “internal working documents”) and whether their disclosure under the FOI Act would be contrary to the public interest within the meaning of s. 36(1)(b);

s. 37(1)(b): whether disclosure under the FOI Act would, or could reasonably be expected to, disclose, or enable a person to ascertain the existence or identity of a confidential source of information in relation to the enforcement or administration of the law;

s. 37(1)(c): whether disclosure under the FOI Act would, or could reasonably be expected to, endanger the life or physical safety of any person;

s. 38: whether disclosure under the FOI Act would be contrary to s. 16(2) of the Income Tax Assessment Act 1936 (“ITA Act”).

s. 41: whether disclosure under the FOI Act would involve the unreasonable disclosure of a person’s personal affairs.

s.45: whether disclosure under the FOI Act would found an action, by a person other than the Commonwealth, for a breach of confidence.

  1. If parts of the documents are exempt, there is a further issue to be decided. That is whether it is possible to make a copy of them with such deletions that the document would not be an exempt document and, if so, whether it is reasonably practicable to do so. They are issues that would need to be considered under s. 22 of the FOI Act.

CONSIDERATION

General structure of access provisions of FOI Act

  1. Section 11(1) of the FOI Act provides that:

“Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a)a document of an agency, other than an exempt document; or

(b)an official document of a Minister, other than an exempt document.”

  1. It is clear from the terms in which the right is couched that it is a qualified right.  The first qualification is that it is a right to have access to a “document of an agency” or to “an official document of a Minister”.  In so far as an agency is concerned, that means that the right is access to a document in the possession of the agency (s. 4(1)).  The word “document” is defined in terms that are broad enough to encompass within them records kept on paper and in electronic form, drawings and graphs as well as records of text or script.

  1. The words “Subject to this Act” appear in s. 11 for a person’s right is qualified by other provisions of the FOI Act. Those sections include ss. 12 and 13 (excluding access to certain categories of documents), 24 (permitting certain workload factors to be taken into account in refusing a request) and 24A (permitting a request to be refused if a requested document cannot be found or does not exist).  None is relevant in this case.  Apart from these qualifications, s. 11 is explicit in its terms that the right of access is not to every document of an agency.  The right is only given to every document in the possession of that agency that is not an “exempt document”.  In so far as an agency is concerned, an “exempt document” is a document that is exempt by virtue of a provision of Part IV of the FOI Act (s. 4(1)).  Five provisions in Part IV have been raised as relevant either on behalf of the ATO or on behalf of Ms Martinek.  I will consider each in turn.

Procedure under s. 27 – where documents relate to business affairs etc

  1. Mr Baird also submitted that the procedure in s. 27 should have been followed in this case.  Section 27 is a section that must be read with s. 43 that provides that a document is exempt if its disclosure under the FOI Act would disclose certain information that may, for the purposes of this case, be categorised generally as relating to the business or professional affairs of a person or organisation. It sets out a procedure that must be followed when an agency or the Minister receives a request in respect of a document containing information concerning a person’s business or professional affairs or the business, commercial or financial affairs of an organisation or undertaking. The agency or Minister may not decide to grant access to any part of the document containing that information unless, if it is reasonably practicable to do so, it has given the person or organisation a reasonable opportunity to make submissions supporting the contention that the document or, part of it, is exempt pursuant to s. 43. 

  1. In this case, there was no need for the ATO to follow the procedures set out in s. 27. That is so regardless of whether the documents contained information relating to the business or professional affairs of any person or organisation. The ATO did not make a decision to grant access under the FOI Act to the documents, or to any part of them that might have contained information of that type. While it made that decision relying upon ss. 37(1)(b), 38 and 45 and not upon s. 43, that is of no consequence.  The essential factor is that it did not make a decision to grant access.  Whether or not the procedure in s. 27 needs to be followed in this case depends on whether or not I decide to grant access to any parts of the document containing information of the sort described in that section.

Exemption under s. 36 – internal working documents

  1. Section 36(1) provides that:

“Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:

(a)would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or Government of the Commonwealth; and

(b)would be contrary to the public interest.”

Other provisions of s. 36 qualifying the operation of s. 36(1) are not relevant in this case.

  1. It is clear from the structure of s. 36(1) that both of its paragraphs must be satisfied before a document is an exempt document.  It is not enough that disclosure of a document would be contrary to the public interest within the meaning of s. 36(1)(b) if it does not come within the description set out in s. 36(1)(a).  Therefore in considering whether a document is exempt under s. 36, the first question to be asked is whether it comes within the description set out in s. 36(1)(a).

  1. Several words used in s. 36(1)(a) have been considered in a number of cases.  They include Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626 (Davies J), Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112 (Davies J, Coates and Sinclair), Re Waterford and Department of the Treasury (No.2) (1984) 5 ALD 588 (DP Hall, Prowse and Hughes), Re James and Others and Australian National University (1984) 6 ALD 687 (Deputy President Hall) and Kavvadias v Commonwealth Ombudsman (1984) 2 FCR 64 (Sheppard J). In so far as those cases considered the word “deliberation”, their conclusion may be summarised in the words of Beaumont J in Beaumont J in Harris v Australian Broadcasting Corporationand others (1983) 50 ALR 551 that:

“... ‘deliberation’ suggests not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision.”  (page 560 and see also Re Murtagh and Commissioner of Taxation at pages 118-119 and Re Howard and Treasurer of the Commonwealth of Australia at page 630)

None of the four letters in this case can be described as containing matter in the nature of, or relating to a discussion, let alone a collective discussion, that has taken place for any purpose.

  1. Matter in the nature of a deliberation is not the only matter within the scope of s. 36(1)(a).  Other matters within its scope are matters in the nature of “opinion, advice or recommendation … [or] consultation”.  In the case of Smith and Aboriginal and Torres Strait islander Commission [2000] AATA 512, I set out the ordinary meanings of the other words used in s. 36(1)(a) i.e. “opinion, advice or recommendation … [and] consultation”:

“Taking first the word “opinion”, it connotes “… a view held about a particular subject or point; a judgement formed; a belief …” (The New Shorter Oxford English Dictionary, 1993) or a “1. judgment or belief resting on grounds insufficient to produce certainty. 2. a personal view, attitude, or estimation: public opinion 3. the expression of a personal view, estimation, or judgment: to give an opinion on tariffs. 4. a formal or professional judgment expressed, especially in law: counsel’s opinion. …” (The Macquarie Dictionary, 3rd edition, 1997).  The word “advice” means “… The way in which a matter is looked at; opinion, judgement … consideration, consultation, reckoning … an opinion given or offered as to action; counsel … The result of consultation; determination, plan …” (The New Shorter Oxford English Dictionary, 1993 and see also The Macquarie Dictionary, 3rd edition, 1997) .   The meanings of “recommendation” include “… The action or an act of recommending a person or thing; a recommended course of action etc.; a proposal …” (The New Shorter Oxford English Dictionary, 1993 and see also The Macquarie Dictionary, 3rd edition, 1997).  To a certain extent, the meanings of the words “opinion”, “advice” or “recommendation” overlap.  Whether they overlap or not, all are expressing the notion of consideration followed by the formation of a view either about a certain subject or about a course of action and the transmission of that view.

The ordinary meanings of “consultation” include “… A meeting in which parties consult together, or one person consults another, … “ (The New Shorter Oxford English Dictionary, 1993) and “… the act of consulting; conference. … a meeting for deliberation … an application for advice to one engaged in a profession …” (The Macquarie Dictionary, 3rd edition, 1997).  Again, there is a notion of consideration inherent in the meaning of “consultation”.  That consideration may or may not lead to the formation of an opinion, advice or recommendation.” (paragraphs 54 and 55)

  1. On its face, s. 36(1)(a) appears to be broadly drafted to gather a broad range of matter within its scope and, with one exception, there is no reason in the context either of the remainder of the section or of the FOI Act to limit the ordinary meanings given to the words “opinion, advice or recommendation … consultation or deliberation”.  With that in mind, there is matter in the four letters that may be regarded as opinion, advice or recommendation.  I am not satisfied, though, that there is any matter that may be regarded as being in the nature of a consultation.  A consultation denotes the act of seeking advice or counsel, a conference or a meeting for a deliberation.  As I concluded in Booker and Department of Social Security (AAT 6189, 13 September, 1990) after reviewing various authorities, “… it seems to me that, in order for there to be a consultation, there must be something of a two way exchange between at least two parties.  …” (paragraph 25).  In the circumstances of this case, there is no evidence that either the ATO or the Commissioner of Taxation (“Commissioner”) sought advice or counsel or advice or that there was any meeting or deliberation at all.  Advice or counsel offered gratuitously cannot be regarded as consultation.

  1. That brings me to the one exception that is expressly stated in s. 36(1)(a) and that limits the meaning that must be given to the words “opinion, advice or recommendation” and also to the words “consultation or deliberation”.  That limitation is that it must have been “obtained, prepared or recorded” (if an opinion, advice or recommendation) or “have taken place” (if a consultation or deliberation) “in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency …”. 

  1. The expression “deliberative processes” has been considered in Re James and Others and Australian National University in which Deputy President Hall repeated the view he had expressed in Re Waterford and Department of the Treasury (No.2) that the “deliberative processes” of an agency are its “thinking processes” (page 693).  Sheppard J stated in Kavvadias v Commonwealth Ombudsman at 76-77 that the expression is not to be confined to policy making. Several authorities were reviewed by Davies J in Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626. He referred to Re Murtagh and Commissioner of Taxation, with which he agreed and in which the Tribunal had said:

“The term ‘deliberative processes’ would seem to have a wide ambit.  The term was considered by Beaumont J in Harris v Australian Broadcasting Corporation (1983) 50 ALR 551. At 560, his Honour said that: ‘... “deliberation” suggests not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision.’”  (pages 118-119 and see also page 630 Re Howard)

Davies J referred also to the Tribunal decision in Re Waterford and Department of the Treasury (No.2) where it said:

“As a matter of ordinary English the expression ‘deliberative processes’ appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency.  ‘Deliberation’ means ‘The action of deliberating: careful consideration with a view to decision’: see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one’s course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description. Only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does s36(1)(a) come into play.” (page 606 and see Re Howard page 630).

  1. What of the words “obtained, prepared or recorded” for, if the matter that would be disclosed is opinion, advice or recommendation, it must have been obtained, prepared or recorded for the purposes of the deliberative processes of the ATO if it is to come within s. 36(1)(a).  The word “obtain” was considered by Newman J in Kelly v JRA Ltd (1990) 92 ALR 651 in the context of s. 234(1)(b) of the Customs Act 1901.  That section provided, in part, that “A person shall not …obtain any … refund … which is not payable”.  His Honour said:

“… The word ‘obtain’ is defined in the Shorter Oxford English Dictionary as being ‘to procure or gain, as a result of purpose and effort … to possess’.  The Macquarie Dictionary showing consistency with its English counterpart, defines ‘obtain’ as ‘to come into possession of; get or acquire; procure as by effort or request.’.  In my view the action required of a person to come into possession of a refund of duty from the Collector of Customs requires, on that person’s part, a conscious effort to receive a refund evidenced by the fact that to get such refund, the person seeking it must actively do something to get it.” (pages 657-658)

  1. It seems to me that a similar meaning should be given to the word “obtain” as it is used in ss. 36(1)(a).  The opinion, advice or recommendation must have been acquired or procured by the ATO in the course of, or for the purposes of, its deliberative processes involved in its functions.  It is not enough that the opinion, advice or recommendation was received by it when it was not sought by it either explicitly or implicitly.

  1. The remaining words to consider are “prepared” and “recorded”.  Their meanings are clear and, given their context, it is equally clear that the opinion, advice or recommendation must have been “prepared or recorded” in, or for the purposes of collective discussions i.e. the deliberative processes. Generally, it would be expected that the opinion, advice or recommendation would be prepared or recorded within the agency. It is feasible, however, that the agency could ask a person outside it to prepare or record it and the opinion, advice or recommendation. Provided it is prepared or recorded with the imprimatur of the agency and the other criteria in s. 36(1)(a) have been met, that would be sufficient to bring it within the paragraph.  It is not enough, though, that opinion, advice or recommendation has been prepared or recorded and then proffered to the agency as has happened in this case.  To come within the paragraph, it must have been prepared or recorded for the ATO’s deliberative processes and, in the circumstances of this case, opinion, advice or recommendation prepared or recorded as a result of the ATO’s seeking it rather than its simply being the recipient of it.  

  1. It follows that I am not satisfied that any of the four letters, or any part of them, comes within the description of documents set out in s. 36(1)(a) of the FOI Act. As that is an essential criterion of s. 36(1)(a) that must be fulfilled, I have not gone on to consider the public interest criterion in s. 36(1)(b).

Exemption under ss. 37(1)(b) and (c) – documents affecting enforcement or administration of the law and protection of public safety

  1. Paragraphs 37(1)(b) and (c) provide that

“A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(a)…;

(b)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; or

(c)endanger the life or physical safety of any person.”

Section 37(1)(b) must be read with s. 37(2A), which provides that:

“For the purposes of paragraph (1)(b), a person is taken to be a confidential source of information in relation to the enforcement or administration of the law if the person is receiving, or has received, protection under a program conducted under the auspices of the Australian Federal Police, or the police force of a State or Territory, for the protection of:

(a)witnesses; or

(b)people who, because of their relationship to, or association with, a witness need, or may need, such protection; or

(c)any other person who, for any other reason, need or may need, such protection.”

  1. In relation to the documents generally, Mr Baird submitted that Ms Martinek did not want them released.  It was “as simple as that”, he said, and added a little later: “If she had wanted Mr Richardson to know their content, she would have sent them to him”.  The whole exercise, he observed, was pointless.  Nothing in the documents has anything in them that would affect Mr Richardson’s life.  Ms Martinek was greatly concerned about Mr Richardson’s behaviour, Mr Baird submitted.  Mr Richardson, he said, has connections with people against whom Ms Martinek had sought intervention orders.  He named one person against whom he said Ms Martinek’s partner, Mr McDermott, had been awarded $30,000 by the Victorian Civil and Administrative Tribunal.  Mr Richardson had a “connection” with that person and he, Mr Richardson, subsequently made a number of demands on Mr McDermott.  He is trying to render the maximum damage to Ms Martinek and her partner, Mr Baird submitted. 

  1. Beginning with s. 37(1)(b), its application turns upon the meaning of a “confidential source of information”.  I considered that in Re Bayliss and Department of Health and Family Services (1997) 48 ALD 443 where I said:

“(25) Section 37(1)(b) is also claimed by the department. There is nothing on the face of the facsimile sheet or in the evidence that the information has been given by a ‘confidential source of information’. Having heard Mr Treherne's evidence and considered the description of document 1 in the schedule, I am not satisfied that disclosure of the facsimile sheet would disclose, or enable a person to ascertain, the identity or existence of what could be described as a confidential source of information.

(26)  It cannot be said that obtaining information from a source outside an agency is, without more, obtaining it from a confidential source.  As Forster J said in Department of Health v Jephcott (1985) 8 FCR 85; 9 ALD 35; 62 ALR 421; at 425:

All information given to the department cannot be ‘confidential information’ or ‘given in confidence’ or come from ‘a confidential source’ so that the mere giving of information without more cannot make the giver a confidential source.  What then is a ‘confidential source’? I am content to accept the interpretation in Luzaich v United States (1977) 435F Supp 31 at 35, ‘a source is confidential if the information was provided under an express or implied pledge of confidentiality’. In the case of an existing document containing information it might be simple enough by reading the document to discover that the information was provided under an express or implied pledge of confidentiality, but in the case of a document which may or may not exist the matter is more difficult. It could be that departmental practice when receiving information of certain types might be of assistance, but this court knows nothing of this. It could also be that the presumed contents of the possibly non-existing document, apprehension as to its contents and the relationship of the supposed informant to the person supposedly informed about might enable an inference to be drawn that the information provided, if any, was so provided under an implied pledge of confidentiality ...

(27)  On the same issue, Keely J said in Jephcott at ALR 426:

... ‘a confidential source of information’ in s 37(1)(b) means a person who has supplied information on the understanding, whether express or implied, that his or her identity will remain confidential.

(28)  There is no direct evidence that the source of the information is a confidential source and there is nothing in the information itself which leads me to that conclusion.

(29) Disclosure of the second page would not reveal a confidential source of information. Nothing either on the face of the document or in the evidence satisfies me that it would. I am satisfied that neither the facsimile sheet or the second page of document 1 is exempt under s 37(1)(b).” (pages 448-449)

  1. Having regard to the information in each of the letters and to the form in which it is presented, I am not satisfied that its disclosure under the FOI Act would disclose or enable a person to ascertain the existence or non-existence of a confidential source of information or the identity of a confidential source of information. I have formed the view that its disclosure would not have this result and have reached that conclusion on two separate bases. The first is that the source of the information given to the ATO is not confidential and it is known. On behalf of Ms Martinek, Mr Baird has acknowledged that she is the source of the information. Indeed, that she was the source was implicit in the ATO’s identification of the documents sought by Mr Richardson. His request sought only documents of which Ms Martinek was the author.

  1. The second basis relates to documents 1, 2 and 3 and is found in the documents themselves.  They are marked as being “personal for” a named officer of the ATO but are also marked for the information of the holders of two named positions in two separate organisations.  Each is a body created under a Victorian statute.  The author has not restricted access to the addressee of the letter but has broadened its range of recipients.  There is nothing in the text of the documents that persuades me to conclude that the author provided the information to any of them, and particularly to the ATO, on the basis of an express or implied pledge that the author’s identity would be protected.  The fourth document is directed only to the named officer in the ATO and the second basis does not apply to it. 

  1. It follows that, on two bases, documents 1, 2 and 3 and, on one basis, document 4 is not exempt pursuant to s. 37(1)(b). 

  1. Section 37(1)(c) requires me to consider whether disclosure under the FOI Act would, or could reasonably be expected to, endanger the life or physical safety of any person. The opening words of s. 37(1)(c), “would, or could reasonably be expected to”, have been considered in cases such as Attorney-General’s Department v Cockcroft (1986) 64 ALR 97 (Bowen CJ, Sheppard and Beaumont JJ). Bowen CJ and Beaumont J said in considering the same expression used in s. 43(1)(c)(ii):

“In our opinion, in the present context, the words ‘could reasonably be expected to prejudice the future supply of information’ were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 per Gibbs CJ and Mason J.” (page 106)

  1. In that case, Sheppard J said of the same issue:

“What is required is that the decision-maker act reasonably.  For the document to be exempt his conduct must be taken to be that of the reasonable man.  But then comes the difficulty.  So acting, the decision-maker must expect that disclosure of the document could prejudice the future supply of information.  In my opinion he will not be justified in claiming exemption unless, at the time the decision is made, he has real and substantial grounds for thinking that the production of the document could prejudice that supply.  But, stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.”  (page 112)

  1. Cockcroft’s case was considered by the Full Court of the Federal Court in Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163. It had been submitted that there were differences between the approach adopted by Bowen CJ and Beaumont J and that adopted by Sheppard J. Referring to the majority’s approach, the Full Court said:

    “Their Honours did not suggest ... that it was sufficient that there be a possibility not irrational, absurd or ridiculous that the specified consequence would occur.  Their Honours specifically rejected that approach, saying that the words `could reasonably be expected’ meant what they said.  The practical application of their Honours’ view will not necessarily lead to a result different from that proposed by Sheppard J.

    In the application of s43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed or diminished if the information were disclosed.  It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable.”  (page 176)

  1. The question I must ask, therefore, is whether it is reasonable to expect that disclosure of any of the documents under the FOI Act would, or could reasonably be expected to, endanger the life or physical safety of any person. In this case, the only person who has been put forward as a person whose physical safety is in issue is Ms Martinek but I should not confine my consideration to her. Other people who should be considered are any who are named in the documents or affected by their contents and even officers of the ATO itself. Their positions must be considered on the basis of the evidence. That evidence may be found in the contents of the documents themselves and the evidence of the parties regarding matters such as statements or actions made in the past and that might reflect on what would, or could reasonably happen if the information were to be disclosed.

  1. In this case, I have listened to Mr Richardson and read what Ms Martinek has written in each of the four documents. She has not given evidence and was not available for cross-examination. Mr Baird’s statements of her views cannot be regarded as evidence. They were submissions only. Having regard to what evidence there is, I find that the relations between Ms Martinek and Mr Richardson are, at best, extremely poor. They have made complaints about each other and each other’s behaviour. Ms Martinek has sought intervention orders against a person or people whom Mr Richardson knows but not against Mr Richardson himself. Mr Richardson has been aware that Ms Martinek has passed information about him to the ATO or the Commissioner and has passed it to at least one other authority. He understands that she has also passed it to the members of a car club. Despite his knowing that and having known that for a year of so, there is no evidence that he has done anything to threaten her physical safety let alone endanger her physical safety or life. That is so even though he is upset by what Ms Martinek has written about him. It may be that the sniping that occurs between them may reasonably be expected to cause each of them emotional upset or disturbance but there is no evidence that either is so disturbed by it that they would cause harm to themselves. Given their long history of antipathy, Mr Richardson’s having knowledge that Ms Martinek has made complaints about him to the Commissioner and there being no evidence of any threat to harm Ms Martinek or any harm, I am not satisfied that disclosure of the letters under the FOI Act would, or could reasonably be expected to, endanger the life or physical safety of Ms Martinek. I have reached the same conclusion in relation to any persons who are named in the documents and officers of the ATO. It follows that I am not satisfied that the documents, or any parts of them, are exempt pursuant to s. 37 of the FOI Act.

Exemption under s. 38 – document to which s. 16(2) of the Income Tax Assessment Act 1936 applies

  1. On behalf of the ATO, Mr Niall submitted that the documents were exempt under s. 38 in so far as they contain material, the disclosure of which is prohibited by s. 16(2) of the ITA Act. Sub-section 38(1) is relevant in this case and provides:

“(1)   Subject to subsection (1A), a document is an exempt document if:

(a)disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and

(b)either:

(i)     that provision is specified in Schedule 3; or

(ii)     this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.”

  1. Section 38(2) qualifies the operation of s. 38(1) when it provides that:

“[Where] a person requests access to a document, this section does not apply in relation to the document so far as it contains personal information about the person.”

Regard must also be had to the definition of “personal information” set out in ss. 4(1).  It provides that:

“‘personal information’ means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”

It follows that, if s. 38 of the FOI Act is not to apply as a result of the operation of s. 38(2), the information must be “information or an opinion ... about” the person requesting the document.  The word “about” is defined in the New Shorter Oxford Dictionary, in so far as it is relevant as meaning:

“6 In connection with; appertaining to; dealing or occupied with; touching; concerning; on the subject of; in relation to”.

It is defined in similar terms in the Macquarie Dictionary.

  1. Section 16(2) of the ITA Act is a provision which is specified in Schedule 3 of the FOI Act and so is a provision within the purview of s. 38(1).  Section 16(2) provides that:

“Subject to this section, an officer shall not either directly or indirectly, either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of ‘officer’ in subsection (1).”

The definition of “officer” is in these terms: 

“ ‘officer’ means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax.” s. 16(1)

  1. What is meant by s. 16(2)? The first criterion is that the information must have been “acquired” by the officer in the circumstances mentioned in the definition of “officer”. The ordinary meanings of “acquire” include “come into possession of” (New Shorter Oxford English Dictionary). Given the intent of s. 16(2) to protect certain information from disclosure, I consider that this meaning is appropriate. 

  1. In Re Collie and the Deputy Commissioner of Taxation (1997) 45 ALD 556 I considered the information encompassed within the definition of “officer”:

“…  The information which an officer may not divulge except in the performance of his or her duty as an officer must meet the description in that subsection. In particular, it must be ‘information respecting the affairs of another person’ that has been acquired by the officer as mentioned in the definition of ‘officer’: s 16(2). Reference to the definition, shows that the information respecting the affairs of any other person must have been ‘disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax’: s 16(1).

43.             What are the ‘affairs’ of a person?  The word ‘affairs’ was considered in Johns v Connor and Others (1992) 27 ALD 25; (1992) 107 ALR 465 in the context of a notice issued under s 19 of the Australian Securities Commission Act 1989 (Cth). That notice required Mr Johns to appear for examination in relation to an investigation into the affairs of a certain company. One of the grounds upon which the notice was attacked as to its validity was that the notice failed to comply with a statutory requirement to state the general nature of the matter that the Australian Securities Commission was investigating.

44.             In finding that the notice was drafted too broadly to meet the statutory requirement, Lockhart J said (at 476):

‘Affairs’ is a word of very wide import.  In its ordinary meaning `affairs’ in relation to a corporation includes the activities, business or concerns of the corporation.

45.             A similarly wide meaning would seem to be appropriate whether the affairs of a corporation or the affairs of an individual are under consideration.  The only qualification is that the information about the affairs has been obtained under ITA or of any previous law of the Commonwealth relating to income tax.

46. I also note that, in order to come within the terms of s 16(2), the information must be ‘respecting the affairs’ of a person. Bearing in mind the ordinary meanings of the word ‘respecting’, this means that the information must be in ‘Relation, connection, reference, [or] regard’ to the person’s affairs (New Shorter Oxford Dictionary, 1993), or in similar terms, is information regarding or concerning his affairs: Macquarie Dictionary, 2nd ed, 1991.

47.      In order for information to come within the description of information “respecting any other person” must that other person be able to be identified?  I note that the tribunal in Re Mann considered a document in which the names of individuals were not ascertainable.  It said (at 270):

It was suggested that the documents contained information concerning the affairs of the CTHC and specialists employed by CTHC, said to number 45-50 during the fund’s existence. Unless the ‘information’ represented by these documents falls within s 16 of the ITA Act the whole question of s 38 is irrelevant. It was suggested that the documents contained information concerning the affairs of the CTHC (see para A(2)(a) of the written submission); of the trustees of the individual specialists were named in the documents no claim of exemption was made by the agency under s 41 (‘unreasonable disclosure of information relating to the personal affairs of any person’). While the wording of s 16 is of course not identical with s 41, it is hard to see how it is alleged on the one hand that a document contains information respecting the affairs of a person (s 16 ITA Act) so as to attract, on the broader view, s 38 FOI Act, but that it was apparently not regarded as an apt subject of a claim under s 41 should the s 38 claim fail. These aspects were not pursued at the hearing and we do no more than refer to them.”

48. I have some reservation in following this approach. That reservation stems from s 32(a) of the FOI Act. That paragraph provides that a provision under Pt IV delineating an exemption:

shall not be construed as limited in its scope or operation in any way by any other provision of this Part by virtue of which documents are exempt documents.

49.             In light of this paragraph I have concluded that I should not interpret s 38, and so s 16(2), in the light of the provisions of s 41.  I have had regard then to the provisions of s 16(2) on their own.  They do not require that the person be able to identified from the information before an officer is under an obligation not to reveal that information.  It is enough that it can be identified as information respecting the affairs of another person.

50. What is meant by the requirement that the information in respect of which the secrecy provision operates is not only information respecting the affairs of another person but that type of information that has been ‘... disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax’: s 16(1)? The ITA is the only legislation which is relevant in this case. Under it, obligations to disclose information by way of returns or further or fuller returns are found in ss 162 and 163 of the ITA Act. Under s 263, the commissioner or any officer authorised by him, has broad powers to obtain access to documentary material. Section 264 gives the commissioner wide powers to require persons to give him information and evidence. He has power to seek information and documents outside Australia and his powers in that regard are found in s 264.

51. Whether information comes within the description of information described in s 16(2) is a matter of fact. The burden of proving that it does meet the description falls upon the ATO: s 61. In some instances, it can do that by reference to the nature of the information itself. It may clearly be information of a sort that could only have been acquired by an officer of the ATO because it was disclosed or obtained under the provisions of the ITA or of a previous Commonwealth law relating to income tax. Where the nature of the information itself does lead to that conclusion, evidence needs to be found in other sources.” (pages 563-564)

  1. On behalf of the ATO, Mr Niall submitted that my final paragraph took too narrow a view of s. 16(2).  He referred to the cases of Corrs Chambers Westgarth and Commissioner of Taxation [1998] AATA 756, Senior Member Dwyer, and Re Hart and Deputy Commissioner of Taxation [2002] AATA 1190, Mr McCabe, now Senior Member. Mr McCabe found that the documents he had to consider in relation to s. 16(2) included information collected as a result of the execution of notices under ss. 263 and 264 of the ITA Act. He set out s. 16(2) and concluded that:

“65.   The expression ‘affairs of a person’ does not include information about the person’s tax affairs.  The wording of the statute suggests any information about an individual that was collected by the respondent may not be communicated: see Re Mann and Federal Commissioner of Taxation (1987) 87 ATC 2010 at 2012; see also Re Corrs Chambers Westgarth and Commissioner of Taxation [1998] AATA 756 at par 13-14.”

Although reluctant to disagree with a colleague, I am unable to agree with this passage in Re Hart.  In finding that the prohibition on disclosure extends to “any information that was collected by the respondent”, it seems to me that regard has not been had to one limitation that is inherent in a reading of s. 16(2) and the definition of “officer” in s. 16(1) but not to another.  The limitation to which it has regard is that the information is not limited to a person’s taxation affairs but extends to his or her affairs.  There is a second limitation, though, and that is that the information that has been acquired by an officer must have been “disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax” (s. 16(1)). 

  1. Senior Member Dwyer did not need to refer to the issue in Re Corrs Chambers Westgarth and Commissioner of Taxation but she did refer to the following passage from the reasons for decision in Re Mann and Federal Commissioner of Taxation (1987) 87 ATC 2010:

“In the result we go back to the cardinal principle of Australian income tax law that the knowledge of a person’s affairs gained by the ATO is sacrosanct, subject to carefully defined, albeit now very extensive, statutory exceptions. There appears to us to be no ground for a construction of the FOI Act that would lead us to intrude upon that principle.” (page 2014)

This passage has led me to review my thoughts in Re Collie and the Deputy Commissioner of Taxation regarding the information that might have been “disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax” and to go back to what is meant by the expression “under the provisions” of the named legislation. 

  1. I considered what was meant by a very similar expression, “under an enactment” in Re Morton and Australian Securities Commission (1997) 23 ACSR 454 and did so by examining a range of cases that had considered the issue in a variety of contexts:

    “24.           What is meant by ‘under an enactment’ was dealt with in the earlier case of Australian National University v Burns (1982) 43 ALR 25, Bowen CJ and Lockhart J said:

    The difficulty in the present case does not lie in the definition of the expression ‘under an enactment’.  We agree with Fox J who said in Evans v Freimann (1981) 35 ALR 428 at 436; 3 ALD 326 at 333, that the word ‘under’, in the context of the Judicial Review Act, connotes ‘in pursuance of’ or ‘under the authority of’: see also R v Clyne [1941] VLR 200. The difficulty lies in the application of the expression to particular circumstances. The present case poses the problem in an acute form. (at 31)

    This passage has since been adopted in other cases such as Chittick v Ackland (1984) 1 FCR 254; 53 ALR 143 at 153 (per Lockhart and Morling JJ) and referred to in cases such as Lewins v Australian National University (1995) 133 ALR 452 at 461.

    25.             Bowen CJ and Lockhart J also adopted the words of Ellicott J, from whose judgment the appeal had been taken, when he had said:

    The clear object of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment on Ministers, public servants, statutory authorities and others.  In many cases the power to do a particular thing will be precisely stated in the legislation.  In other cases the power to do a particular thing will be found in a broadly stated power.  The Act should not be confined to cases where the particular power is precisely stated.  In each case, the question to be asked is one of substance, whether, in effect, the decision is ‘made under an enactment’ or otherwise. (at 31, (1982) 40 ALR 707 at 716-717)

    26.             Applying the principles to the facts of the case before them, Bowen CJ and Lockhart J said:

    In our opinion the rights and duties of the parties to the contract of engagement were derived under the contract and not under the University Act. Section 23 [of the Australian National University Act 1946] empowered the council to enter into the contract on behalf of the appellant. Even if the council, in considering the position of the appellant under the contract, might be said to be acting under section 23, the effective decision for dismissal taken and notified to the respondent was directly under the contract. (at 32)

    27.             In Australian National Airlines Commission v Newman (1987) 162 CLR 466; 70 ALR 275, the High Court found that the Australian National Airline Commission’s conduct of a kitchen was not something ‘done or purporting to be done’ under the Australian National Airlines Act 1945 (Cth). As Brennan J said:

    In the present case, the Commission required no statutory authority to conduct a kitchen. That is an activity which, so far as appears, might lawfully be engaged in without statutory authority. The Commission was at liberty to perform the functions prescribed by s 19(1) or by other provisions of the Act by whatever lawful means it chose, and no further grant of power or prescription of functions was needed to authorise the conduct of the kitchen. True it is that the Act expressly confers powers on the Commission to operate services and facilities for the purposes of and incidental to the carrying on of its business (s 19D) and to do ‘all things necessary or convenient to be done for or in connection with, or as incidental to, the performance of its functions’ (s 19H(1)) but the Act is not to be regarded, for the purpose of s 63(1), as the source of power which the commission otherwise possesses. Freedom under the common law to engage in conduct requires no grant of statutory power to confirm it, and a limitation provision which affects liability for things done or purportedly done ‘under’ the statute does not affect liability for things which are and can be done without reliance on a statutory power to do them. The conduct of the kitchen was something which the Commission had capacity to undertake without the grant of statutory power to undertake it. It follows that an act committed in the course of conducting the kitchen is not an act arising out of something done or purportedly done under the Act for the purpose of s 63(1). (at 282-3)

    28.             The General Newspapers case was concerned, in part, with whether Telstra’s actions in negotiating the printing of its telephone directories or its decision to enter a contract with printers without calling for tenders was reviewable under the ADJR Act. In their joint judgement, Davies and Einfeld JJ reviewed a number of the authorities and continued:

    In the present case, the decisions relied upon involved the entry of contracts and the conduct challenged was conduct leading to the making of the contracts. No statute made specific provisions for such contracts, merely conferring upon Telecom all the powers of a natural person including the power to enter into a contract. That was a mere conferral of capacity to act. The contracts were not relevantly authorised or required by and were not made under an enactment. The validity of the contracts and of the acts done was governed entirely by the law of contract, not by the statutes. Thus, the ADJR Act had no application to the conduct or to the alleged decision. (at 637)

    29.             Nicholson J’s judgment in Schokker v FCT was referred to by Mr Morton. The applicants sought review of a decision not to prosecute staff of the Australian Taxation Office for alleged breaches of the secrecy provisions in s 16 of the Income Tax Assessment Act 1936 (Cth) (the ITA Act). Nicholson J reviewed the ITA Act and found that prosecutions for a taxation offence are either instituted by or on behalf of the Commissioner of Taxation. It follows that he must make a decision under that legislation as to whether or not a prosecution should be brought.

    30.             A similar approach can be said to have been taken by Jenkinson J in Terrule Pty Ltd v DCT (1985) 5 FCR 153, Jenkinson J decided that a decision by a Deputy Commissioner of Taxation to institute proceedings for the recovery of income tax was a decision of an administrative character made under an enactment. He found that s 209 of the ITA Act conferred upon the Commissioner of Taxation the power to take those proceedings and also the power to decline to take them.

    31. Some years later, Jenkinson J considered whether a decision by a Deputy Commissioner of Taxation to vote against a motion at a creditors’ meeting held under the Bankruptcy Act 1966 (Cth) was a decision under the ITA Act and, in particular, under s 8 or s 209. He did so in Hutchins v DCT (1994) 123 ALR 133; 29 ATR 52.

    32. Section 8 of the ITA Act provided that the Commissioner of Taxation had the general administration of the legislation. Jenkinson J decided that a general power cannot be understood to make provision for any of the many decisions which the Commissioner must make in exercising his authority. The function of the section, he said, is merely to nominate the person by whom decisions relating to general administration may be made. Section 209 provided that the Commissioner or a Deputy Commissioner could sue for and recover unpaid tax. Section 208 provided that, when income tax becomes due and payable, it is a debt due to the Commonwealth.

    33.             His Honour referred to his earlier judgement in Terrule and doubted its correctness.  He said:

    I see more force now than when I rejected it in the submission of counsel for the Deputy Commissioner in Terrule’s case that s 209 did not make provision for decisions of that character but merely authorised suit by the Commonwealth for recovery of income tax by the Commissioner or a deputy commissioner suing in his official name, and that no other section of the Income Tax Assessment Act 1936 made provision for such a decision. I have already given my reasons for thinking that s 8 does not make that provision. On the view for which counsel for the Deputy Commissioner contended in Terrule’s case the decision whether or not to institute the suit for recovery of the tax is an exercise of the executive power of the Commonwealth conferred by s 61 of the Constitution. (at 139)

    34.             An appeal from Jenkinson J’s judgement was dismissed by the Full Court of the Federal Court in Hutchins v Deputy FCT (1996) 136 ALR 153; 96 ATC 4372. The majority, Black CJ and Spender J, concluded that s 8 was expressed too generally and that ss 208 and 209 were too remote and non specific to support a conclusion that the decision had been made under an enactment. Lockhart J disagreed on this aspect.” (pages 460-462)

  1. Although expressed in different contexts, these authorities are applying common principles. One is that a general power of administration given in an enactment to a person or a body, such as that given to the Commissioner in s. 8 of the ITA Act, cannot be regarded as the statutory basis of every decision that is made by that person or body. Some decisions have their foundation in contract, for example, or under a specific head of power in the same enactment or another. At the same time, there need not be a specific head of power in an enactment authorising an action in order for an action to be said to have been made under that enactment. What seems to be required is that there be a link of substance between what is done and the powers that are given under the enactment. In the case of a prosecution under s. 16 of the ITA Act for alleged breaches of its secrecy provisions, for example, the fact that they must be instituted either by or on behalf of the Commissioner provides the necessary link of substance between the subject matter of the decision and the power to prosecute so that the decision not to prosecute may be said to have been made under the ITA Act (see Schokker & Anor v Federal Commissioner of Taxation (1996) 96 ATC 4885).

  1. Could the information in the letters written by Ms Martinek said to have been disclosed under the provisions of the ITA Act? It has not been disclosed under any particular provision and I am not aware of any particular provision of the ITA Act that seeks information from members of the public about other members of the public. At the same time, in administering the ITA Act, the Commissioner and his officers require information that is relevant in assisting them to assess taxpayers’ liabilities and to carry out other powers and duties they are given by that legislation. He is given powers to obtain information to assist him to make those assessments but, beyond those specific powers, his power to assess liability and to carry out his powers and duties would authorise him to receive information more widely and so through avenues other than those provided by specific heads of power. That would mean that information that the person disclosing the information intends to be directed to the Commissioner’s powers and duties would have a connection of sufficient substance with his powers under the ITA Act to say that the information has been disclosed under the ITA Act. That does not mean that the information must be used by the Commissioner or his officers or even that it is objectively relevant. It does mean that it must be disclosed on the basis that it is directed to his powers and duties under the ITA Act or any other law prescribed in s. 16(1). Whether or not the information is directed to matters within the Commissioner’s powers and duties, is a matter that would need to be assessed taking into account the nature of the information disclosed. By way of illustration, a letter addressed to the Commissioner and providing a critique of the performances of those appearing at a jazz and blues concert could not be said to be directed to the Commissioner’s powers and duties. A letter addressing the practices regarding the sale of tickets to that concert could be said to be directed to those powers and duties and would come within the purview of s. 16(2).  That would be so even if no further steps were taken in relation to the information in the letter and even if it were not objectively relevant to any issue within the Commissioner’s powers and duties.

  1. When I look to the letters written by Ms Martinek, I am satisfied that they are directed to the Commissioner’s powers to assess taxpayers’ liability under the ITA Act. Therefore the information has been disclosed under the provisions of the ITA Act. In making that finding, I am making no comment at all upon whether they are relevant to the exercise of his powers or in any way useful to him. The information in them is, from Ms Martinek’s point of view, directed towards assisting the Commissioner and his officers exercise their powers and perform their duties under the ITA Act. I am satisfied that they contain information respecting the affairs of a person or persons other than an officer or officers of the ATO. That information has come into the possession of an officer of the ATO and so has been acquired by him or her. This means that each of the four letters is, subject to the exception in s. 38(2) of the FOI Act, exempt.

  1. The exception in s. 38(2) excludes from exemption personal information relating to the person seeking access.  It raises, however, the issue of “mixed personal information” that I considered in Re Collie and the Deputy Commissioner of Taxation. By “mixed personal information”, I mean that access to the document under the FOI Act would disclose information or information about a person or persons in addition to information about the person requesting access to it. As I did in that case, I have examined each part of each letter to determine whether the information relating to Mr Richardson can be separated from that relating to other persons. Where it can be separated without disclosing personal information about other persons, I have excluded it from exemption under s. 38. Where it cannot be so separated, I have determined that it is exempt even though it may still relate to Mr Richardson’s personal affairs. I have taken that view for the exception in s. 38(2) only applies to personal information about the person requesting the information.  Where personal information of others is concerned their views as to whether or not disclosure would be reasonable are not relevant.

  1. When I do that, I find that the text of each of letters 1, 2 and 3 concerns Mr Richardson’s affairs but it also concerns the affairs of other persons.  It is practicable to separate some of the text concerning Mr Richardson’s affairs from that concerning others but some is so inextricably interwoven that the passages can fairly be said to relate to the affairs of Mr Richardson and of other persons.  It is not reasonably practicable to make a copy of the document that unravels those interwoven passages.  With that in mind, I am satisfied that:

Letter 1

The passages of the document outlined in yellow highlighter are exempt pursuant to s. 38 together with the passage beginning “and” at the end of line 16 of page 3 and concluding at the end of that sentence.

Letters 2, 3 and 4

The passages of the documents outlined in yellow highlighter are exempt pursuant to s. 38.

Exemption under s. 41 – documents affecting personal privacy

  1. Section 41(1) was raised, but not argued, by Mr Niall.  It was not the express subject of Mr Baird’s submissions but it was arguable inherent in them.  That section provides:

“A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).”

I have already set out the definition of the expression “personal information”.

  1. Many of the authorities about what is meant by an “unreasonable disclosure” of personal information were decided before the definition of “personal information” was inserted by the Freedom of Information Amendment Act 1991 (Act No.137 of 1991).  It has since been decided in cases such as Zalcberg and Australian and Overseas Telecommunications Corporation (AAT 8015, 12 June, 1992, Senior Member Gibbs, Mr Brewer and Ms Rodopoulos, Members) that the earlier cases are still relevant and that the amending legislation does not affect the meaning to be attributed to the words “unreasonable disclosure”.

  1. In Wiseman v The Commonwealth (24 October, 1989, 637/1989, Sheppard, Beaumont and Pincus JJ), the Full Court of the Federal Court said that “whether or not disclosure would be “unreasonable” is a question of fact and degree which calls for a balancing of all the legitimate interests involved”.  A similar view had been expressed earlier by Deputy President Hall in Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 when he said:

“51. ... [I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act.  Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs.  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.

52.  However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.” (page N259).

  1. In the case of Colakovski v Australian TelecommunicationsCorporation (1991) 13 AAR 261 (Lockhart, Jenkinson and Heerey JJ), Lockhart J said:

“This is not an appropriate case in which to examine definitively the circumstances that may constitute ‘the unreasonable disclosure of information’ relating to a person’s ‘personal affairs’ because the argument before us proceeded on the limited basis outlined previously. It is sufficient for present purposes to say that ‘every person’ has a ‘legally enforceable right to obtain access’ to documents under the FOI Act (s11). There is no requirement that the person seeking access have a proprietary or any other interest in documents or the information contained in them. The object of the Act, as expressed by s 3, is to give the ‘Australian community’ the right of access to information in the possession of the Australian Government. What is ‘unreasonable’ disclosure of information for purposes of s 41(1) must have, as its core, public interest considerations. The exemptions necessary for the protection of ‘personal affairs’ (s 41) and ‘business or professional affairs’ (s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights; rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access, provided the other conditions mentioned in ss 41 and 43 are satisfied. An examination of the other provisions of Pt IV of the Act concerning exempt documents confirms this approach.

Before parting from the case there is a final observation I wish to make. The FOI Act is, as its preamble states, ‘an Act to give to members of the public rights of access to official documents of the government of the Commonwealth and of its agencies’. The object of the Act is stated in s 3 as being to enable Australians to have access, as far as is possible, to information in the possession of the Federal Government by making available to the public, information about the operations of Departments of the Commonwealth and its public authorities and by creating a general right of access to information in documentary form in the possession of ministers, departments and public authorities. But, as s 3 itself recognises, there are limitations upon these rights of the Australian community which are expressed as being ‘necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities’.” (page 270)

  1. In considering whether disclosure is unreasonable, it would seem that reference should not be made to a person’s interest in obtaining access under the Act.  This would seem to be inherent in the passage from the judgement of Jenkinson J in Colakovski’s case when he said:

“no provision is made in the Act for restricting dissemination of information contained in a document to which access is granted.  I say nothing as to whether in this case the use of such a provision, if it had existed, might have been appropriate.  But it is not difficult to imagine circumstances in which the recipient of telephone calls of the kind made in this case would be thought to have a strong moral claim to access to information about the caller’s personal affairs which it would be unreasonable to disclose to other members of what s 3 of the Act calls ‘the Australian community’.  But nothing in the Act except s 91(2) qualifies the recipient’s freedom to disseminate throughout that community information contained in a document to which he has been granted access.” (page 272).

  1. Since Colakovski’s case was decided, s. 11(2) has been introduced into the Act and underlines that a person’s interest in obtaining access is not relevant.  That sub-section provides:

“(2)   Subject to this Act, a person’s right of access is not affected by:

(a)any reasons the person gives for seeking access; or

(b)the agency’s or Minister’s belief as to what are his or her reasons for seeking access”.

  1. I have considered the application of this section in relation to those parts of the letters that I have not already determined to be exempt pursuant to s. 38.  Mr Baird submitted that what Ms Martinek had written should not be released.  In so far as s. 41 is concerned, I consider that to grant access to her address, be it her street or mailing address, would involve an unreasonable disclosure of her personal affairs. She does not wish it to be released and Mr Richardson does not seek it. While it is true that she has given her address not only to the ATO and the Commissioner but also to the two organisations to whom her letters are copied, it is one thing to give it to a limited audience of three and another to give it, in effect, to the world at large under the FOI Act.

  1. The fact that she has written at all to the ATO and the Commissioner could be said to be personal information about her; it is information about her in the sense of what she has done.  In circumstances in which she has expressed opinions about another and copied the letters containing her opinions to two other organisations expecting some outcome as a result, I do not consider that disclosure of such personal information is unreasonable.

Exemption under s. 45 – document containing material obtained in confidence

  1. Section 45 provides that:

“(1)   A document is an exempt document if its disclosure under this Act would found an action, by a person other than the Commonwealth, for a breach of confidence.

(2)Subsection (1) does not apply to any document to the disclosure of which paragraph 36(1)(a) applies or would apply, but for the operation of subsection 36(2), (5) or (6), being a document prepared by a Minister, a member of the staff of a Minister, or an officer or employee of an agency, in the course of his or her duties, or by a prescribed authority in the performance of its functions, for purposes relating to the affairs of an agency or a Department of State unless the disclosure would constitute a breach of confidence owed to a person or body other than:

(a)a person in the capacity of Minister, member of the staff of a Minister or officer of an agency; or

(b)an agency or the Commonwealth.”

  1. Section 45(1) in its present form adopted the reasoning of the dissenting judgement of Gummow J in Corrs Pavey Whiting and Byrne v Collector of Customs, Victoria (1987) 13 ALD 254. He considered that s. 45, as it was originally drafted, used the expression “breach of confidence” in the sense known to law.  Consequently, he continued:

“… the case is to be approached in terms of the general law, not as a case of confidence protected by contract, but as one, if anything, of confidence protected in equity.  It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria.  The plaintiff (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge), (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence, and (iv) there is actual or threatened misuse of that information.  Saltman Engineering Co Ltd v Campbell Engineering Co (1948) 65 RPC 203 at 215; Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 50-1; 32 ALR 485 at 491-2; O’Brien v Komesaroff (1982) 150 CLR 310 at 326-8; 41 ALR 255 at 266-8. It may be necessary, as Megarry J thought probably was the case (Coco v Clark (AN) (Engineers) Ltd [1969] RPC 41 at 48), and as Mason J (as he then was) accepted in the Fairfax decision was the case (at least for confidences reposed within government), that unauthorised use would be to the detriment of the plaintiff.” (pages 262-263)

  1. His Honour’s formulation has been adopted as the correct interpretation to be applied to s. 45 in its current formulation in cases such as Kamminga and Australian National University (1992) 26 ALD 585. In relation to the report of the consultants, the information said to be confidential has been identified with specificity. It is all that identified in the Commission’s Schedule prepared pursuant to the FOI Practice Direction.

  1. I am satisfied that Mr Baird has identified with specificity the information for which confidentiality is claimed.  Given the broad ranging nature of the information in the first three letters and the number of people involved, I am doubtful on the evidence that I have, and that is very little, that the information has the necessary confidentiality.  It would seem to be information that is widely known but I have not made a finding on this aspect for it is the third of Gummow J’s criteria that I have not been able to overcome.  While each of the first three letters is marked “without prejudice” and is marked for the attention of a particular officer in the ATO, none is marked “confidential” or “in confidence” or with words to that effect. In addition, each of those three contained information that might, if sent only to the ATO, possibly be thought to have been sent in confidence but each was copied to two other organisations. Taking all of those matters into account, I am not satisfied that there was anything in the circumstances in which the letters were received by the ATO in circumstances importing an obligation of confidence. I am not satisfied that disclosure of the first three letters, or any part of them, would found an action for breach of confidence by a person other than the Commonwealth. Therefore, I am not satisfied that they are exempt pursuant to s. 45 of the FOI Act.

  1. Letter 4 is in a different category. It has not been copied to other organisations. While it is not marked as confidential, the subject matter of its three paragraphs does have the necessary quality of confidentiality. It is subject matter that would not appear on its face to be widely or commonly known and the subject matter is such that the ATO’s receiving it would import an obligation of confidence. To give access to letter 4 under the FOI Act would be a breach of confidence as set out in s. 45(1).

  1. For the reasons I have given, I:

    1set aside the decision of the respondent dated 11 December, 2002; and

    2.substitute a decision that:

    (1)the letter dated 27 June, 2002 (Letter 4) is exempt from disclosure pursuant to s. 45 of the Freedom of Information Act 1982;

    (2)the following passages of letters dated 25 March, 2002 (Letter 1), 5 April, 2002 (Letter 2) and 24 April, 2002 (Letter 3) are exempt from disclosure pursuant to s. 38;

    (a)     Letter 1

    The passages outlined in yellow highlighter are exempt pursuant to s. 38 together with the passage beginning “and” at the end of line 16 of page 3 and concluding at the end of that sentence.

    (b)     Letters 2, 3 and 4

    The passages of the documents outlined in yellow highlighter are exempt pursuant to s. 38; and

    (3)the applicant may have access to those parts of Letters 1, 2 and 3 that are not exempt.

I certify that the fifty-nine preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President S A Forgie

Signed:             R. Crook       ........................................................

R. Crook       Associate

Date of Hearing  5 August, 2003
Date of Decision  7 April, 2004
For the Applicant  self represented
Counsel for the Respondent         Mr R. Niall

Solicitor for the Respondent         Ms E. Lee,

Australian Taxation Office
For the Party Joined  Mr D. Baird

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Cases Cited

13

Statutory Material Cited

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Kavvadias v Commonwealth Ombudsman [1984] FCA 179
Kavvadias v Commonwealth Ombudsman [1984] FCA 179
Kavvadias v Commonwealth Ombudsman [1984] FCA 179