Robertson and Secretary, Department of Family and Community Services ('Centrelink')

[2006] AATA 245

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 245

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/1232   

GENERAL ADMINISTRATIVE DIVISION		)
Re		Jacqueline Robertson

Applicant

And Secretary, Department of Family and Community Services (‘Centrelink’)

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date15 March 2006

PlaceSydney

Decision The Administrative Appeals Tribunal sets aside the decision under review and in substitution for the decision set aside, decides that the documents identified as folio numbers 021-023 are exempt from disclosure under section 37(1)(b) of the Freedom of Information Act 1982 except for the parts of the documents as indicated and released in the attached edited version of documents numbered 021 to 023.

[Sgd] Ms N Isenberg, Member

CATCHWORDS

ADMINISTRATIVE LAW – Freedom of Information  - consideration of whether certain documents are exempt from disclosure to Applicant – consideration of whether the release of exempt documents would reveal identity of a confidential source of information in relation to the enforcement or administration of law – consideration of evidence and findings - the decision under review is set aside.

LEGISLATION

Freedom of Information Act 1982 - section 37(1)(b) and 41

CASELAW

George Hayes v Secretary, Department of Social Security (1996) AATA 11221

Department of Health and Another v Jephcott (1985) 9 ALD 35

REASONS FOR DECISION

15 March 2006    Ms N Isenberg, Member

DECISION UNDER REVIEW

1. The decision under review is a decision made by the Review Officer on 1 August 2005 that affirmed the decision made by Freedom of Information Co-ordinator on 27 May 2005 to exempt documents referred to as records 021 to 023, on public interest grounds under section 37(1)(b) of the Freedom of Information Act 1982 (“FOI Act”).

BACKGROUND

2.      On 2 February 2000, Ms Robertson informed Centrelink that she had married Mr Bozidar Bosanac on 16 January 2000 (T4/13-15).  This information was however, not recorded correctly on her Centrelink file and she continued to receive social security payments at the single rate.

3.      On 27 April 2005 a Centrelink Office received information that Ms Robertson was a member of a couple with Mr Bosanac.  This was recorded on the “Tip Off Recording System” document.

4.      On 3 May 2005, Centrelink commenced investigations into the allegations. (T7/16) and sent a letter to Ms Robertson requesting the completion of the enclosed “Assessment of Living Arrangement” Form within 14 days (T8/17).

5.      On 6 May 2005, Ms Robertson telephoned Centrelink in response to its correspondence of 3 May 2005 and enquired about the tip off.  Ms Robertson’s age pension payments were then suspended by Centrelink (T7/16).

6.      On 9 May 2005, Ms Robertson requested access to her Centrelink file by completing the Freedom of Information request.  (T9/18-19)

7.      On 27 May 2005, the Centrelink Freedom of Information Coordinator decided to grant access in full to 295 folio/paper records and 67 electronic records and refused access to electronic records 021 to 023 (T10/20-22), which folios comprise the completed ‘tip off’ document.  That decision was affirmed on review (T2/2-3).

ISSUE BEFORE THE TRIBUNAL

8.      The issues to be considered by the Tribunal are whether:

(a) The documents identified as folio numbers 021 to 023 are exempt from disclosure under the FOI Act; and

(b)    The release of these exempt documents in full would, or might, enable Ms Robertson to ascertain the existence or identity of a confidential source of information in relation to the enforcement or administration of the law?

THE HEARING

9.      A hearing was held before me on 18 January 2006 at which Ms Robertson was self represented.  Ms P Sharma, an advocate from the Legal Services Branch of Centrelink appeared for the Respondent.

10.     A resumed hearing was held on 22 February 2005.

11.     I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence.  Centrelink also tendered an affidavit by Mr M Chan dated 9 December 2005 which annexed a pro forma version of the “tip off” document.  Prior to the resumed hearing Centrelink provided information in relation to an email produced by Ms Roberson at the original hearing in relation to another “tip off”.

12.     I also had available to me a full version of the documents in dispute.

CONSIDERATION OF EVIDENCE AND FINDINGS

13.     In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

14.     Ms Robertson confirmed that the main purpose of her application was to identify the source of the tip off.  She said that she is constantly wondering who of her friends or associates has tried to hurt her this way.  She identified a couple of people who may have cause to have done this but acknowledged that this was speculation only.  One person she thought may have been responsible has some psychological disturbance and she would be able to excuse that person for that reason.  She said she has no intention of confronting the person responsible but just “wants closure”.  She said that this had made her ill, especially as some of the information provided was false.  There is medical evidence in the papers supporting her contention that her poor health has been exacerbated by her worries about what has occurred.

15. Section 37(1)(b) of the Freedom of Information Act 1982 provides as follows:

“Documents affecting enforcement of law and protection of public safety

(1)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;”

16.     Centrelink contended that pursuant to that section it is obliged to protect the identity of an informant.  In recording unsolicited information, one of Centrelink’s operational principles is that the information is provided under an implied request for confidentiality, even if the identity of the informant is disclosed to Centrelink. 

17.     Ms Sharma noted that the pro forma version of the tip-off document had been provided to Ms Robertson.  At the hearing Ms Sharma conceded that not every piece of information in the document might enable Ms Robertson to identify the informant.

18.     Ms Robertson has been informed that, in this case, Centrelink does not know the identity of the informant.  However to disclose such details about the informant that Centrelink has would reasonably enable Ms Robertson to ascertain the informant’s identity.

19.     Furthermore, Centrelink’s position was that to disclose aspects of the information provided by the informant would also reasonably enable Ms Robertson to ascertain the identity of the informant.  Ms Sharma suggested some information provided might be within the knowledge of a limited number of people.  To disclose the specific nature of the information and the grammatical style used by the informant may assist in the identification of the informant, whether the information was true or not (per GeorgeHayes v Secretary, Department of Social Security (1996) AATA 11221). Further, the combination of that information, or the identification of what information was known to the informant, was said to be likely to enable Ms Robertson to identify the informant.

20.     At the hearing Ms Robertson tendered a document dated 8 August 2005 which referred to a tip off.  That document had been supplied to her by Centrelink.

21.     Ms Sharma was asked to explain how it was that information in that document was provided to Ms Robertson, given that the information referred to there went beyond that provided by the informant in the tip off document. 

22.     By written submission to the Tribunal Ms Sharma advised that there had been a further tip off after the present FOI request had been processed and reviewed.  The information had been provided to Ms Robertson in response to her further FOI application.  It was the not exempt because the information therein was merely the Centrelink officer’s interpretation of the information that informant had provided. 

23.     Criteria for determining whether a document is exempt under this section was provided by Muirhead J in McKenzie v Secretary to Department of Social Security (1986) 65 ALR 645.His Honour there outlined the following three relevant questions: 

“(1)     Was the letter in question a confidential source of information?

(2)     If so, was it properly classified as relating to the enforcement or administration of the law?

(3)     Would its release in toto disclose the identity of the confidential source or in the alternative could it reasonably be expected to do so?”

24.     In relation to question one, having perused the document, I consider that the anonymous author has expressly declared an understanding that the document would remain confidential.  Even if this were not the case, the author implied such an understanding of confidentiality.

25.     In reference to the second McKenzie criterion, the Respondent argued that the document was appropriately classified as relating to the enforcement or administration of the law.  The document contained allegations which, if true, would suggest that Ms Robertson was being overpaid Centrelink benefits.  I find that Centrelink has an interest and indeed an obligation to ensure that appropriate payments are made to beneficiaries.  The 3 page tip-off document has been properly classified as relating to the enforcement or administration of the law.

26.     In relation to the third question referred to in McKenzie, that is, “Would its release in toto disclose the identity of the confidential source or in the alternative could it reasonably be expected to do so?”, Ms Sharma referred to the specific nature of the information contained in the document.  The submission was that the author is likely to be known to Ms Robertson and may be one of only a few people who have knowledge of the specific matters raised in the letter.  It was consequently submitted that release of the document is likely to allow Ms Robertson to identify its author.  I agree that release of the document in toto could reasonably be expected to identify a confidential source.  However, much of the information is inconsequential and a matter of public record.  Inclusion of that information is not prohibited.

27.     In all there were 8 entries in total sought to be excluded under this category.

28. I have decided that of those the following are not excluded under section 37 (1)(b) of the FOI Act, for the reasons set out below in respect of each:

·“CRN  205365980A”

This is Ms Robertson’s own client reference number and it is not contended that this information was supplied by the informant. 

·“DESCRIPTION                   BLEACHED BLONDE. 5’7” HEIGHT. 75KGS.

This is a matter of observation.

29. The remaining excluded entries would be likely, pursuant to section 37(1)(b) of the FOI Act, to enable Ms Robertson to ascertain the identity of the informant. This is precisely what Ms Robertson has sought, but the Act is quite clear: sources of confidential information cannot be disclosed.

30. Other information, it was submitted by Ms Sharma, should not be provided under section 41(1) of the FOI Act which is as follows:

“Documents affecting personal privacy

(1)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).

31.     The entries excluded in this category relate to Ms Robertson’s husband.  To that extent, it is not unreasonable to disclose this to Ms Robertson. 

32.     However, the information about Mr Bosanac which has been supplied may enable Ms Robertson to identify the informant, and has been excluded on that basis.

33.     Ms Robertson was especially upset because she said some of the information which appears to have been provided by the informant was untrue.  She pointed to aspects of the tendered document of 8 August 2005, which purports to reflect information provided by the later informant.

34.     In any event, as Centrelink contended, even if an informant’s allegations were found to be false or if the allegations could not be verified, Centrelink would still be bound by confidentiality provisions.  In this regard Ms Sharma referred me to Department of Health and Another v Jephcott (1985) 9 ALD 35.

35.     The Respondent contends that there is no error of law as also held by the AAT in Hayes (supra) with similar facts.

36.     I attach to this decision an edited version of documents 21-23, reflecting my decision.

37.     I accept that this is a frustrating result for Ms Robertson, as her main goal in bringing this application for review is in fact to identify the informant.

DECISION

38. The Administrative Appeals Tribunal sets aside the decision under review and in substitution for the decision set aside, decides that the documents identified as folio numbers 021 to 023 are exempt from disclosure under section 37(1)(b) of the Freedom of Information Act 1982 except for the parts of the documents as indicated and released in the attached edited version of documents numbered 021 to 023.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         Associate

Date of Hearing  18 January 2006 and 22 February 2006
Date of Decision  15 March 2006
Representative for the Applicant    Ms Robertson, Self-Represented
Solicitor for the Respondent          Ms P Sharma, Centrelink