S2000/319 and Department of Family and Community Services

[2001] AATA 90

DECISION AND REASONS FOR DECISION [2001] AATA 90

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2000/319

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re                  
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Miss WJF Purcell (Senior Member)        

Date9 February 2001

PlaceAdelaide

Decision      The Tribunal affirms the decision under review.          

(Signed)
  (W J F PURCELL)
  Senior Member
CATCHWORDS
FREEDOM OF INFORMATION  – documents containing materials obtained in confidence – disclosure of confidential information contained in documents to Centrelink – applicant's Newstart Allowance cancelled  - applicant requesting documents detailing disclosure of confidential information – whether release of documents would found an action for breach of confidence.
Words and Phrases: "Found".
Freedom of Information Act 1982 (Cth) s45
Social Security Act, 1991
Freedom of Information Amendment Act, 1991
FOI Memorandum No 92 "Freedom of Information Bill 1991"
Corrs Pavey Whiting & Byrne v Collector of Customs, Vic (1987) 13 ALD 254
Smith Kline and French Laboratories (Australia) Ltd and Others v Secretary, Department of Community Services and Health (1991) 99 ALR 679
Re Kamminga and Australian National University (1992) 26 ALD 585

REASONS FOR DECISION

9 February 2001                Miss WJF Purcell (Senior Member)        

1. This is an application for review of a decision of a Review Officer of the respondent (the Department) dated 23 July 2000, which affirmed the decision of the delegate, of 4 May 2000, not to release certain documents requested by the applicant pursuant to the Freedom of Information Act 1982 (the Act).

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with exhibits tendered by the parties. The applicant represented himself at the Hearing. Ms Boylan, departmental advocate, represented the Department.

3. The applicant, who is 49 years of age, has been in receipt of Social Security benefit for some years, and currently receives Newstart Allowance (NSA).  On 31 March 2000, the applicant's NSA was cancelled on the basis that a job application and resumé he submitted to an Employment Agency (the Employment Agency) was not consistent with the applicant actively seeking, or willing to undertake work.  In the delegate's opinion, the applicant had represented himself in such a light that his application was unattractive to any prospective employer. In these circumstances the applicant had failed to satisfy the "Activity Test" under the Social Security Act, 1991.  The applicant applied for review of the decision, and ultimately, the Social Security Appeals Tribunal set aside the decision, as it was satisfied that at the relevant time the applicant was actively seeking employment, and was eligible to receive NSA.

4. On 6 April 2000, the applicant lodged a request with the Department for a search to be conducted through his personal file. The essence of his request was that he would like copies of "everything everywhere about me". (T6/21) On 4 May 2000, the delegate decided to allow access to a number of documents, but excluded a letter of 15 March 2000, from the Employment Agency to the Department, headed "Private and Confidential", and part of the Departmental Manager's File Note which quoted directly from the Employment Agency's letter. The delegate decided that as the Employment Agency confirmed that the contents of its letter were provided to Centrelink in confidence, and it would incur detriment if the information did not remain confidential, the documents were exempt from disclosure in accordance with s 45(1) of the Act which provides:-

   "Documents containing material obtained in confidence

   45.      (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 breach of confidence."

5. On 12 May 2000, the applicant applied for a review, and his attached letter reads in part :-

   "I want a copy of this letter because the … resume was presented by Ms Jillian J. Testrow as the centrepiece for the reason she stopped my subsistence income.  To argue my case with the Social Security Appeals Tribunal I need to have all the available information in front of me.  Even if … want it confidential they have taken a course of action which has helped stop my subsistence income for at least six months – according to Ms Testrow.  They shouldn't be allowed to make accusations which have serious consequences then claim shyness and not wanting to have their accusations openly displayed. " (T10/28)

6. On 20 July 2000, the writer of the Employment Agency letter (the Writer) telephoned the Department and stated that he had received a letter from the applicant in which he said that the Employment Agency had exposed itself to an action for breach of confidence by releasing his application and resumé to the Department without his authority; and that the applicant might seek compensation for loss of income from them, as his NSA was cancelled as a result of their letter. (T15/38)

7. On 23 July 2000, the Review 0fficer affirmed the decision, and in the course of his letter of advice stated :-

   "I have agreed that the letter and quote in the Manager's note should not be released as the information is exempt under paragraph 45(1) of the FOI Act. (attached)  In arriving at my decision, I have considered that:

   a.The letter was headed "PRIVATE & CONFIDENTIAL" and consequently there was an expectation on the part of the sender/writer that the content was not to be released to you.  This information was therefore collected in circumstances which impute a confidential relationship between Centrelink and the person concerned.

   b.The writer has orally confirmed that they believe they could incur some detriment if the information did not remain confidential.  I have no reason to doubt that this is the case as you have also confirmed your intent to investigate legal action.

   c.Centrelink has accepted the letter as being given in confidence and has subsequently taken action on that letter whilst being aware of the writer's wishes." (T16/39)

8. The applicant has applied to this Tribunal for review of the decision, and submits that he relied absolutely on the confidentiality promises made plain on the Employment Agency's Web Site, which reads in part:

   "YOUR INFORMATION IS TREATED AS CONFIDENTIAL.  We make no approaches to third parties without your full approval. " (T1/6)

The Employment Agency, he maintains, divulged information about him and his job application to the Department, in clear breach of its undertaking of absolute confidentiality.  Neither the Employment Agency nor the Department can rely on circumstances which impute a confidential relationship between them, because in doing so, they are parties to a breach of the applicant's confidentiality in relation to his job application.  His confidentiality relationship with the Employment Agency predated the confidence (if any) between the Employment Agency and the Department; and as his confidence is the first in time, it should prevail to postpone the confidence asserted by the Employment Agency and the Department.  The Employment Agency cannot rely on confidentiality when the Writer did not, himself, give confidentiality to the applicant.

1. The applicant maintains also, that in relation to the question of "detriment" the Employment Agency cannot raise the defence of detriment, because the applicant's detriment (his non-receipt of NSA for a period of 14 weeks) pre-dates and thus postpones any detriment alleged by the Employment Agency.  The Writer has broken the law by breaking confidence; he has defamed the applicant and caused damage.

2. The Department argues that the applicant's letter and resumé did not constitute a genuine job application.  It was not regarded as a genuine application by the Employment Agency; it was not acknowledged, recorded on the data base or assessed in the manner that genuine applications are assessed.  The letter and resumé did not attract the consideration of confidentiality given by the Employment Agency to genuine candidates for employment.  Thus, when the Writer forwarded his letter to the Department, he did not breach confidentiality in relation to the applicant, as no confidentiality was owed to the applicant.  The pledge of confidentiality is given to genuine candidates.  The applicant was not a genuine candidate.

3. The Department submits also, that the letter was provided to the Department in confidence; the information contained therein is not common or public knowledge, as it is known only to the Writer and the Department; the information was received by the Department in circumstances that imparted obligations of confidentiality by the Department to the Writer. The applicant has stated that he wishes to use the information to take legal action against the Employment Agency, which would be a detriment to the Employment Agency. Disclosure of the information would found an action for breach of confidence, and it is appropriate that the documents be kept from disclosure, in accordance with s 45(1) of the Act.

4. The applicant said in evidence that since 1991, he has from time to time provided what he described as "joke resumés" for advertised positions.  He has applied for positions such as woman's adviser to the Premier, leader of the Salvation Army Band, and in the present case, Public Relations/Publicity Officer for an Orchestra.  The advertisement for the position stated that tertiary qualifications in journalism, public relations or a related field were essential, together with a proven ability to work with the media and two years' experience in a similar role.  The applicant's letter to the Employment Agency reads :

   "Please find enclosed my Resumé for consideration.
   This is your big chance to employ a prestigious personality like me for this average position.
   I dislike music, actually, but would not tell anyone once I was began (sic) with the Orchestra. I've watched orchestras on television and know how to stand up and clap at the end. I can also appear amazed and appreciative no manner what sort of noise has just been produced.
   Despite me being the ideal man I realise you must go through the formality of looking at other resumes and even doing a cursory interview or two with other candidates if only to justify your commission.  You may as a gesture of goodwill post me a reasonable amount of money and I shall decline all job offers for a period of seven days."  (T4/13)

5. The first page of the resumé contains a photograph of the applicant with the caption "I hate work".  At Page 2 the same photograph appears with the caption "Would you Employ this man?"  On page 3 he outlines his skills and hobbies as follows:

   "Skills
   Proficiency in firing and maintaining F1 and F2 semi-automatic and automatic weapons, throwing hand grenades, firing anti-tank rocket launchers.  Also proficient with older bolt action Lee Enfields, Mausers and Sub-machine guns (Sten guns). 
   Skills as a lookout man and truck loader for a self-employed gentleman who works at night.
   …
   Hobbies
   Random minimalist paint expressions on randomly selected sites executed during the nocturnal period.
   Complaining to businesses about the quality of their service and products.
   Handing out leaflets at Centrelink offices that urge the Underclass to consider the validity of assassination as a means to protect and further their interests.
   Doing Centrelink and Job Network Courses, observing illegal behaviour of the employees, then launching multiple complaints against them with the Human Rights Commission and other government bodies.
   Reading and collecting esoteric books on Underclass guerilla warfare." (T4/16)

Page 4 of the resumé outlines the applicant's work experience from 1971 to the present,in a similar vein to the other sections of the resumé.

1. The applicant said in evidence that he did not expect any response to his letter;  that anyone could see that it was not a real resumé; that even "an idiot could see that it was not a real resumé".  The "joke resumés", he said, were to break the dullness of the necessity to apply for positions, to put in a bit of mockery by applying for jobs in that manner.  He said that he was unprepared when the joke went wrong, and the Department cancelled his NSA.  On 8 September 2000, he sent an Electronic Mail entitled "Media Release" to the International Agency to which the Employment Agency belongs, stating that he was seeking release of the letter by this Tribunal.

   "The Aim:  'I want the letter for the purpose of taking legal action against … I will teach a lesson to … and all employers.  I say to them, if you inform on unemployed people to Centrelink then you will suffer the consequences.  I don't care how powerful you are supposed to be.  You will fry.'" (Exhibit R6)

The applicant said in evidence that he would like to take legal action against the Employment Agency for breach of confidence, and that if the letter was released he would seek legal advice.  The effect of getting the letter could mean that when he read it, he might take the matter no further.  If, on the other hand, he did not get the letter, he would attempt to obtain a copy of this defamatory letter through the South Australian Small Claims Court.

1. The Department called the Writer of the letter as a witness.  He said his employer's role is to recruit staff on behalf of companies, and he is Manager of Senior Level Recruitment.  Candidates for recruitment lodge resumés to make application for particular jobs which have been advertised in various media.  Candidates can lodge also, a resumé as a general "job watch" request.  When an application is made for a particular job, staff receive the applications, acknowledge them, using a standard letter signed by a consultant, and place them on a data base.  The applications are assessed then, by a consultant, and, where appropriate, the individuals involved are recommended to the client.  He said in evidence that it is Company policy that candidates' resumés and applications are not provided to potential employers without the consent of the candidate.

2. The Writer said in evidence that when the applicant's letter and resume were received on about 21 February 2000, they were brought to his attention.  He did not consider the letter to be a genuine application.  There was no information in the letter, or accompanying document, which addressed in a serious way the qualifications, skills and qualities listed in the advertisement.  It appeared to the Writer that the applicant had gone to great lengths to make it clear that he did not intend to present himself as a serious candidate.  As it was not considered a genuine application, it was not acknowledged with the usual letter, nor was it placed on the data base.  In the Writer's view, the applicant was not a serious candidate, and not entitled to their protection.  There was personal contact initiated, as the Writer considered the applicant a possible danger, because of his stated proficiency with weapons, and his stated hobby of collecting books on "Underclass guerilla warfare".  Subsequently, after consultation with other staff members, the Writer formed the view that the applicant had made every effort to appear unemployable, and that there appeared to be an attempt to abuse the social welfare system.  He considered it appropriate, on behalf of the Employment Agency, to contact the Department regarding the application.

3. The Writer gave evidence that he discussed the matter with a Departmental Officer, and on the basis that his name, and the name of the Employment Agency, would remain confidential, he sent the letter and documents to the Department.  The letter was headed "Private and Confidential".  His intention being that the letter not be released to the applicant.  He said that the Employment Agency and the International Agency to which it belongs, have received mail recently, a number of Electronic Mail communications from the applicant wherein he stated that a civil litigation specialist had advised him that the Employment Agency was vulnerable to paying court-ordered compensation payments to him.  He stated also that he was prepared to settle the matter for the sum of $5,000.00 to be paid by bank cheque within 14 days.  Failure to forward the cheque would expose the Employment Agency to more strenuous action.  The Employment Agency has replied in writing rejecting the applicant's claim.

4. Section 45 of the Act provides that a document is an exempt document if its disclosure would found an action by a person other than the Commonwealth, for breach of confidence. Prior to the amendment of the Act, by the Freedom of Information Amendment Act, 1991, s45 had been interpreted as having wider application to situations in which disclosure would not be actionable at general law. The effect of the amended section is stated in the Explanatory Memorandum to the amending legislation at paragraph 46:

   "Breach of confidence exemption
   The Bill narrows the breach of confidence exemption in section 45 of the Act.  To date section 45 has been interpreted as meaning something different from the meaning of 'breach of confidence' at general law.  That interpretation has created uncertainty and left open the possibility that section 45 might exempt documents that the general law would not protect from disclosure.  The Bill amends section 45 so that it exempts a document only if its disclosure would be actionable at the general law.  In future section 45 will not exempt a document from disclosure if under the general law the person to who the duty of confidence is owed would be denied assistance by the Courts to restrain disclosure of the document.  Thus a document is not exempt under section 45 where disclosure would reveal that fraud or some other crime has been committed."

5. The question for the Tribunal is whether disclosure could found an action by the Writer against the Department for breach of confidence.  In Corrs Pavey Whiting & Byrne v Collector of Customs, Vic (1987) 13 ALD 254 Gummow J, in his dissenting Judgment said at  pp 262-3:

   "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 & 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 also 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."

I adopt, with respect, His Honour's criteria:-

(i)Could the Writer, as plaintiff, identify with specificity the information in question?

The documents, in my view, satisfy the first criteria.  They are able to be identified with specificity, and not merely in global terms, and have been thus identified by the parties.

(ii)       Does the information have the necessary quality of confidentiality?

The contents of the documents are not known to anyone but the Writer and Departmental officers.

(iii)Was the information received by the defendant in such circumstances as to import an obligation of confidence?

In Smith Kline and French Laboratories (Australia) Ltd and Others v Secretary, Department of Community Services and Health (1991) 99 ALR 679 the Full Court said at p 690:

"To determine the existence of confidentiality and its scope, it may be relevant to consider whether the information was supplied gratuitously or for a consideration; whether there is any past practice of such a kind as to give rise to an understanding; how sensitive the information is; whether the confider has any interest in the purpose for which the information is to be used; whether the confider expressly warned the confidee against a particular disclosure or use of the information – and, no doubt, many other matters.  Confidential information is commonly supplied without payment: for example, by a prospective employee (or his referee) to support an application for employment.  The understanding ordinarily would be that the prospective employer would not disclose the information to any third party; but it would hardly be expected that its use would necessarily be confined to the employment application itself."

The Writer gave evidence, which I accept, of his telephone conversation with a Departmental Officer, and his understanding that his name, and that of the Employment Agency,would remain confidential.  The letter was headed "Private and Confidential" and it was his intention that the letter not be released to the applicant.  I consider that the letter was received by the Department in such circumstances as to import an obligation of confidence.

(iv)      Is there actual or threatened misuse of the information?

In the matter of ReKamminga and Australian National University (1992) 26 ALD 585, the Full Tribunal said at p593 that :

"The disclosure of the reports subject to an obligation of confidentiality would itself be misuse."

I consider that in the present matter, disclosure would itself be misuse of the information.

1. I am satisfied on the evidence that the necessary criteria for the founding of an action for breach of confidence has been established. The applicant maintains that the Writer/the Employment Agency could not found a breach of confidence action against the Department, because he, and it, have breached the ethical confidentiality obligations owed to the applicant, by divulging information held in confidence. The Writer and the Employment Agency would come to the action with unclean hands and should not succeed. In my view, it is not necessary for the purposes of s 45 of the Act that the Tribunal be satisfied that a person would succeed in an action for breach of confidentiality. It is necessary only that the Department show that disclosure of the document would "found' an action for breach of confidence. 'Found' is defined in the Macquarie Dictionary (Second Edition) at p 688 as:

   "1.       to set up or establish on a firm basis or for enduring existence …

   3.        to base or ground."

2. I am satisfied on the evidence that disclosure of the documents would found an action by a person other than the Commonwealth, for breach of confidence, and that the documents are exempt, therefore, from disclosure under section 45 of the Freedom of Information Act, 1982.

3. For these reasons the Tribunal affirms the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member).

Signed:         .....................................................................................
  Personal Assistant

Date/s of Hearing  29 November 2000
Date of Decision  9 February 2001
Counsel for the Applicant        In Person
Solicitor for the Applicant         -
Counsel for the Respondent    Ms M Boylan
Solicitor for the Respondent    Centrelink