Saunders and Australian Federal Police
[2001] AATA 847
•9 October 2001
DECISION AND REASONS FOR DECISION [2001] AATA 847
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2000/75
GENERAL ADMINISTRATIVE DIVISION )
Re BRIAN SAUNDERS
Applicant
And AUSTRALIAN FEDERAL POLICE
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Senior Member
Date9 October 2001
PlacePerth
Decision The decision under review is affirmed.
...........(sgd S D Hotop)..........
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION - exempt documents – applicant requested access to certain documents created and held by respondent – whether documents contain personal information – whether disclosure of personal information would be unreasonable.
Freedom of Information Act 1982 ss3, 4(1), 11(1), 41(1), 58(1), 58(2)
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Re Scholes and Australian Federal Police (1996) 44 ALD 299
REASONS FOR DECISION
9 October 2001 Associate Professor S D Hotop, Senior Member
This is an application by Brian Saunders ("the applicant") for review of a decision of an officer of the Australian Federal Police ("the respondent") made on 18 January 2000 following an internal review of a decision pursuant to s54 of the Freedom of Information Act 1982 ("the FOI Act") refusing to grant to the applicant access to a document under the FOI Act.
The applicant requested the Tribunal to decide this matter "on the papers" without holding a hearing of the proceeding, and the respondent did not oppose that request. The Tribunal agreed to follow that course and, for that purpose, afforded each party the opportunity to make written submissions. Such submissions were lodged with the Tribunal by the respondent, but no submissions were lodged by the applicant.
In making its decision in this matter the Tribunal has had regard to:
the documents ("T documents") lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act");
the written submissions lodged by the respondent on 21 November 2000;
a copy of the document access to which was refused to the applicant in the decision under review; and
a copy of a letter dated 28 September 1999 from Harry Mason to the respondent.
The 2 lastmentioned documents were the subject of a Confidentiality Order made by the Tribunal under s35(2)(c) of the AAT Act on 22 November 2000.
Background
The background to the present application for review, as found by the Tribunal on the basis of the T documents, is as follows.
On 28 October 1999 the applicant made a request to the respondent for access under the FOI Act to documents described by him as follows:
"All records, file notes, diary entries, action sheets, and/or record sheets prepared by F/A Paynter of Perth during the period June to October 1999 inclusive that mention Harry Mason (of Jarrahdale) or that refer to conversations with Harry Mason."
(T3)By letter dated 30 November 1999 an officer of the respondent notified the applicant that, in response to his abovementioned request for access to documents, he had decided to release to him in full 7 documents (folios 1-2, 4-8 inclusive) but had decided that 1 document (folio 3) was "totally exempt" under s41(1) of the FOI Act. In an accompanying schedule, the relevant documents were briefly described as follows:
folio 1 Letter to Commonwealth DPP
folios 2-7 Diary Entries
folio 8 Computer Entry
The author of all those documents was named as "S Paynter". (T5)
On 6 December 1999 the applicant lodged with the respondent a request for an internal review of the "decision to exempt folio 3 under s41(1)". (T6)
By letter dated 18 January 2000 another officer of the respondent notified the applicant that, upon reviewing the decision of 30 November 1999 to refuse access to folio 3, she had decided that that decision was correct and that access to folio 3 should be refused. (T12)
On 13 March 2000 the applicant lodged with the Tribunal an application for review of the internal review decision of 18 January 2000.
The LegislationThe relevant provisions of the FOI Act are as follows:
"3. (1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:
(a) …(b)creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions 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; and
(c)…
(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
4. (1) In this Act, unless the contrary intention appears:
…
'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;
…11. (1) 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.
…
41. (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).
…
58. (1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
(2) Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
…61. (1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.
…".
Consideration and Findings
Is folio 3 an exempt document under s41(1) of the FOI Act?
Does folio 3 contain "personal information"?
Having inspected folio 3 the Tribunal notes that that document contains information about various individuals whose identities are specified therein. Accordingly, the Tribunal finds that folio 3 contains "personal information" (as defined in s4(1) of the FOI Act), within the meaning, and for the purposes, of s41(1) of the FOI Act.
Would disclosure of the personal information contained in folio 3 be unreasonable?The proper approach to the issue of the reasonableness or unreasonableness of the disclosure of personal information, for the purposes of s41(1) of the FOI Act, has been explained in some well known dicta of the Tribunal and the Federal Court. In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 the Tribunal (Deputy President Hall) said (at pN259):
"...[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 s41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.
However, consistently with the stated object of the Act (see s3), 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." (original emphasis)
In Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 Lockhart J said (at p438):
"What is 'unreasonable' disclosure of information for purposes of s41(1) must have, as its core, public interest considerations. The exemptions necessary for the protection of 'personal affairs' (s41) and 'business or professional affairs' (s43) 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 ss41 and 43 are satisfied. An examination of the other provisions of Pt IV of the Act concerning exempt documents confirms this approach."
Heerey J said (at p441):
"Turning to the criterion of unreasonableness prescribed by the s41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary in order to make out the s41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would inure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable."
In Re Scholes and Australian Federal Police (1996) 44 ALD 299 the Tribunal (Senior Member Dwyer, Members McLean and Woodard) reviewed various authorities, including the abovequoted dicta in Chandra and Colakovski, and concluded (at p343):
"Those passages seem to us to lead to the following conclusions:
(i)the onus is on the agency to advance material establishing the unreasonableness of disclosure;
(ii)the mere fact that a document contains personal information about a person is not sufficient to establish the unreasonableness of disclosure of that personal information;
(iii)in order to decide whether or not a proposed disclosure of personal information would be unreasonable the tribunal must balance competing public interests. The first is the public interest in ensuring that personal information about individuals is not necessarily to be disclosed on applications for access to documents. The other public interest is that of having access to information held by government agencies which is relevant to the affairs of government where the disclosure will contribute to a public gain."
Lines 1-22 of folio 3 appear to be a handwritten record made by Federal Agent S Paynter of a conversation between himself and Harry Mason regarding the latter's personal affairs, during which some personal information about other persons is referred to. Lines 23-32 of folio 3 appear to be a handwritten record made by Federal Agent Payner of a separate conversation with another person which contains personal information which appears to have no connection with the matters referred to in lines 1-22 of that document.
Having regard to the considerations referred to in the authorities set out in paragraph 12 above, the Tribunal considers that:
lines 1-22 of folio 3 contain information regarding Harry Mason's personal affairs that was apparently conveyed to Federal Agent Paynter in a private conversation and which it is likely that Harry Mason would not wish to be disclosed to the applicant or to other third parties without his consent;
there is no public interest that would be served by disclosure of the information contained in lines 1-22 of folio 3 - that information has no relevance to the affairs of government and its disclosure would not contribute to a public gain.
Accordingly, the Tribunal finds that disclosure of the personal information contained in lines 1-22 of folio 3 would be unreasonable, within the meaning, and for the purposes, of s41(1) of the FOI Act.
As regards the personal information contained in lines 23-32 of folio 3, the Tribunal, having regard to the abovementioned considerations and, in addition, to the consideration that that information on its face has no connection with Harry Mason and therefore appears to fall outside the scope of the applicant's request for access to documents under the FOI Act made on 28 October 1999, finds that disclosure of that personal information would be unreasonable, within the meaning, and for the purposes, of s41(1) of the FOI Act.
ConclusionAccordingly, the Tribunal finds that folio 3 is wholly an exempt document under s41(1) of the FOI Act. That being the case the Tribunal, by reason of s58(2) of the FOI Act, has no power to decide that access to that document be granted.
DecisionFor the above reasons, the Tribunal affirms the decision under review.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop (Senior Member)
Signed:
.................................(sgd S Railton).................................
AssociateDate/s of Hearing N/A ("on the papers")
Date of Decision 9 October 2001
Counsel for the Applicant -
Solicitor for the Applicant -
Counsel for the Respondent -
Solicitor for the Respondent -
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