SEAN MULLEN and DEPARTMENT OF BROADBAND, COMMUNICATIONS AND THE DIGITAL ECONOMY
[2010] AATA 523
•13 July 2010
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/1634
General Administrative Division )
Re: Sean Mullen
Applicant
And: Department of Broadband, Communications and the Digital Economy
RespondentCORRIGENDUM
TRIBUNAL: Mr R G Kenny, Senior Member
DATE: 26 July 2010
PLACE: Brisbane
Pursuant to section 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) I direct that the Decision on page 1 and the Reasons for Decision in paragraph 25 should read:
The Tribunal sets aside the decision under review and substitutes its decision that:
the Schedule of Documents dated 25 June 2009 constitutes the full response to Mr Mullen’s Freedom of Information request dated 11 December 2008;
all parts of the documents in the Schedule of Documents dated 25 June 2009 which contain personal information other than that pertaining to Mr Mullen be exempt, under s 41(1) of the Freedom of Information Act 1982 (Cth), from disclosure except for that to which the person identified has consented to the release of that information; and
all documents and parts of the documents in the Schedule of Documents dated 25 June 2009 which are proposed to be exempt under s 42(1) of the Freedom of Information Act 1982 (Cth) are exempt from disclosure.
...................................................................
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 523
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1634
GENERAL ADMINISTRATIVE DIVISION ) Re SEAN MULLEN Applicant
And
DEPARTMENT OF BROADBAND, COMMUNICATIONS AND THE DIGITAL ECONOMY
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date13 July 2010
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes its decision that:
the Schedule of Documents dated 25 June 2009 constitutes the full response to Mr Mullen’s Freedom of Information request dated 11 December 2008;
all parts of the documents in the Schedule of Documents dated 25 June 2009 which contain personal information other than that pertaining to Mr Mullen be exempt, under s 41(1) of the Freedom of Information Act 1982 (Cth), from disclosure except for that to which the person identified has consented to the release of that information; and
all parts of the documents in the Schedule of Documents dated 25 June 2009 which are proposed to be exempt under s 42(1) of the Freedom of Information Act 1982 (Cth) are exempt from disclosure
................[Sgd]..............................
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION - Access to documents – Deemed refusal of respondent to make decision – Partial exemption on basis that material contains personal information – Partial and full exemption on the basis of legal professional privilege – Documents scheduled for release fall within the scope of the applicant’s request for access - Decision set aside.
Freedom of Information Act 1982 (Cth) ss 4, 15, 41, 42, 55, 56
REASONS FOR DECISION
13 July 2010 Mr R G Kenny, Senior Member BACKGROUND
1. On 11 December 2008, Sean Mullen made a request (FOI request) under s 15 of the Freedom of Information Act 1982 (Cth) (“the Act”) to the respondent. He requested that he be provided with all documents “created as a result of the independent claims assessment scheme agreed to during investigations on the full privatisation of Telstra”. By 21 April 2009, the respondent had not completed the process and Mr Mullen lodged an application for review by the Tribunal. The time-frames for responding to an FOI request are set out in the Act[1] and Mr Mullen’s application was made on the basis of a deemed refusal by the respondent because these time-frames had not been complied with[2].
[1] See s 15 of the Act.
[2] See s 55 and 56 of the Act.
2. In July 2009, the respondent completed a Schedule of Documents[3] (the Schedule) in which 266 documents were identified as being relevant to Mr Mullen’s FOI request. Of these, 122 were marked for release in full, 143 were marked for partial release and 1 was marked not to be released. For 119 documents, partial release was provided for on the basis of s 41 of the Act which exempts unreasonable disclosure of personal information about any person[4]; for 13 documents, partial release was provided for on the basis of s 42 of the Act which exempts documents subject to legal professional privilege; and, for 12 documents, partial release was provided for on the basis of both s 41 and 42 of the Act. The marking of the document for full exemption was on the basis of s 42 of the Act.
[3] The version taken into evidence was dated 25 June 2010: see exhibit 3.
[4] The term personal information is defined in s 4(1) of the Act.
3. Where s 41 of the Act was the basis for partial exemption, this was for the purpose of withholding any information which identified other persons. With most of these, the exemptions were of names, e-mail addresses, postal addresses, signatures and salutations. However, in some documents, bodies of the text which contained such material were deleted. This sometimes included whole paragraphs.
4. Mr Mullen provided the Tribunal with a copy of the Schedule in which he included an additional column where he entered his response for most of the documents in the Schedule. For 85 of the documents, his response was “challenge” as he did not accept that the exemption in s 41 or s 42 of the Act was applicable. For 109 documents, his response was that they were “outside scope” in that they were not within the scope of his initial FOI request.
ISSUES FOR DETERMINATION
5. It will be seen below that, at the hearing, Mr Mullen conceded that the exemptions claimed under s 41 and 42 of the Act are appropriate. The remaining issue for the Tribunal is whether the respondent’s schedule of 266 documents encompasses the scope of Mr Mullen’s FOI request.
EXEMPTIONS
6. The respondent wrote to persons who were identified in the documents in the Schedule. These letters gave each recipient the option of consenting to the release of personal information. Some recipients responded by advising that there was no objection to its release; others objected to such releases; and others did not reply. Evidence was given by Duncan McIntyre, the Manager of the Consumer Policy and Post Branch of the respondent. His evidence was that only where an individual or a business consented to release of their personal information was that personal information not exempted in the documents in the Schedule. Otherwise, he said, personal information was exempted under s 41 of the Act. In relation to exemptions under s 42 of the Act, Mr McIntyre said that this was confidential information which was deleted from documents in the Schedule because it was subject to legal professional privilege.
7. Mr Mullen was critical of time-frames which were given to individuals for responding to the respondent’s letters. Nevertheless, he conceded that, in those documents where the exemption in s 41 of the Act was applied, partial release was appropriate provided that the material deleted comprised only those parts of the text which identified an individual. For the respondent, Avenish Chand conceded that, for the purposes of s 41 of the Act, extended portions of the text of documents, including whole paragraphs, should not be deleted but that the deletions should be limited to the content which identified persons such as names, e-mail addresses, postal addresses, signatures and salutations. Mr Mullen also conceded that the partial release of those documents where the exemption in s 42 of the Act was applied was appropriate.
8. Having considered the terms of s 41 and s 42 of the Act, I am satisfied that the concessions by both Mr Mullen and Mr Chand were properly made. Accordingly, the documents which were partially or fully exempted by the respondent under s 42 of the Act may be released[5]. Also, the documents which were partially exempted by the respondent under s 41 of the Act may be released once the deletions have been amended by limiting them to content which identifies persons such as names, e-mail addresses, postal addresses, signatures and salutations[6].
[5] This is subject to any other relevant consideration such as the payment by Mr Mullen of any outstanding fee.
[6] This is subject to any other relevant consideration such as the payment by Mr Mullen of any outstanding fee.
SCOPE OF THE FOI REQUEST
9. Mr Mullen submitted that 109 of the documents in the Schedule were not within the scope of his initial FOI request. Further, he submitted that there were other documents which had not been identified by the respondent which had been omitted from the respondent’s Schedule.
10. Mr Chand submitted that the Schedule had been agreed to by Mr Mullen during negotiations in mid 2009 and that the respondent continued with its responsibilities under the Act on that basis. He also submitted that the Schedule comprised a complete list of those documents which were related to the specific terms of Mr Mullen’s FOI request.
11. In April 2006, the respondent provided a report to the Minister for Communications, Information Technology and the Arts[7] (the Minister) on its “Independent Assessment of Claims against Telstra” (the Report) as requested by the Minister after the privatisation of Telstra. As part of the process of completing the Report, the respondent invited persons, including Mr Mullen, who had outstanding claims against Telstra to participate in the assessment process. Mr Mullen advised the respondent that he did not wish to participate. The Report was approved by the Minister in May 2006.
[7] As the respondent was then styled.
12. Mr Mullen was critical of the Report. He contended that the respondent was not in a position to provide an independent analysis of the assessment process. However, his main objection was that the nature of the Report was not what had been agreed to initially between the Minister and another Senator (the Senator) with whom he had spoken directly in September 2005. He said that, at that time, he had been advised by the Senator that the Senator and the Minister had agreed that an independent assessment should be conducted in relation to those who had claims against Telstra and that the assessment should be in relation to the extent to which individual claimants should be compensated by Telstra in relation to their claims. He contended that the Report did not pursue that form of assessment but, rather, was concerned with the status of the respective disputes and the process adopted in relation to them. He contended that the documentation to which his FOI request was directed was that relating to a merits-based assessment of the kind described to him by the Senator.
13. Communications from the Senator to the Minister referred to the assessment process. On 3 March 2006, the Senator expressed the view that an assessment by the respondent would not be seen as an independent one because of the respondent’s involvement with the Telstra claimants over many years. On 24 July 2006, after the Report was completed, the Senator advised that the Report did not reflect the commitment that he had made to certain claimants against Telstra or the agreement that he had reached with the Minister in September 2005. He considered that the assessment had morphed from one regarding assessment of the merits of individual claims to an assessment by the respondent of the process by which the claims were to be dealt with.
14. In evidence were copies of letters and minutes of conversations relating to the interactions between Mr Mullen and the respondent since his FOI request was made. Some of these are concerned with the charges assessed by the respondent for which Mr Mullen was liable. An estimate of charges was provided to Mr Mullen by letter dated 24 December 2008. In that letter, Mr Mullen was invited to give consideration to narrowing the scope of his FOI request. On 7 January 2009, Mr Mullen advised that he did not wish to narrow the scope and he agreed to the charges as advised by the respondent. As requested, he paid a deposit which represented 25% of the charge estimate[8] and it is not disputed that the balance of the charge has not yet been paid.
[8] See s 29 of the Act.
15. On 15 January 2009, the respondent wrote to Mr Mullen and set out its assumptions concerning the scope of Mr Mullen’s FOI request. These were that it related to documents created by the respondent in its Independent Assessment of Claims against Telstra; that it did not include documents relating to an earlier FOI request which Mr Mullen had made; that it did not include duplicates/copies of documents or copies of correspondence between Mr Mullen and the respondent. By letter dated 16 January 2009, Mr Mullen advised that he rejected the respondent’s interpretation and changes to his FOI request. In evidence was further correspondence in January 2009 between Mr Mullen and the respondent concerning the scope of the FOI request. By letter dated 30 January 2009, Mr Mullen set out the scope of his FOI request. He gave the time-frame as being from 13 September 2005 until his request was made. He required drafts as well as final versions of documents; the last in an e-mail chain with earlier messages included; and FOI requests by other people. He did not require: duplicates/copies of documents; correspondence between him and the respondent; or letters between the Senator and the Minister dated 13 September 2005.
16. Following further telephone discussions with Mr Mullen, the respondent, in a letter dated 3 April 2009, advised that the terms of reference for the independent assessment were focussed on due process i.e. whether all dispute resolution options had been explored by those who agreed to participate and not whether there was merit in any individual claim. In that letter, the respondent again invited Mr Mullen to consider narrowing the scope of his request.
17. On 8 July 2009, the respondent sent Mr Mullen a copy of the Schedule advising him that it contained the 266 documents which comprised its response to his FOI request. At that stage, no decisions had been made by the respondent on whether or not they would be released. On 24 July 2009, Mr Mullen and a solicitor from the Australian Government Solicitor (AGS), representing the respondent, participated in a telephone conference with the Tribunal’s District Registrar. In evidence were minutes of the outcomes of that conference as prepared by the District Registrar and by AGS. They record that Mr Mullen was surprised that there were not more documents in the Schedule but that he agreed the Schedule represented the documents which should be the subject of the respondent’s investigation. They also record that Mr Mullen agreed that all of the 266 documents should be considered by the respondent and that the respondent was to make its decision on the documents in the Schedule by 4 September 2009.
18. On 4 September 2009, the respondent provided Mr Mullen with its decisions in relation to some of the documents in the Schedule and, on 11 September 2009, it provided Mr Mullen with its decisions in relation to the remainder of the 266 documents. By letter dated 17 September 2009, the respondent advised Mr Mullen that the documents as described in the Schedule would be released to him when the balance of the estimate of charges was paid by him.
19. In evidence were documents which related to an earlier FOI request made by Mr Mullen in July 2006. In that request, Mr Mullen made it clear that he was applying for documents relating to the “independent commercial loss assessment” agreed to by the Minister. In a letter, dated 9 January 2006, and an e-mail, dated 4 September 2006, the respondent advised Mr Mullen that the assessment undertaken by the respondent was not a commercial loss assessment but one relating to the processing of individual’s claims which was called the “independent assessment of claims against Telstra”. In that e-mail, the respondent was asked to clarify whether he was seeking documents under the assessment which led to the Report. In his e-mail reply, dated 13 September 2006, Mr Mullen wrote that various titles could be given to the assessment process i.e. independent commercial loss assessment, independent assessment of claims against Telstra, loss assessment, compensatory commitments, claims assessment or outstanding claim. He considered that, in the context of the claims against Telstra, they referred to the same thing.
CONSIDERATION
20. I have noted Mr Mullen’s concerns about the time-frame within which responses were required by the persons whose personal information appeared in documents identified for release by the respondent to Mr Mullen. However, as he has conceded that the exemptions under s 41 of the Act are appropriate, I am satisfied that this objection need not be considered further. I have also noted his concern about the independence of the respondent. This is not a matter within the Tribunal’s jurisdiction.
21. I have noted Mr Mullen’s statement in 2006 that whatever words were used to describe an assessment process, they had the same meaning. I do not accept that. Indeed, in his own documentation, Mr Mullen distinguished between the type of assessment undertaken by the respondent and one which would consider the merits of individual claims. His first FOI request related to “independent commercial loss assessment”. The request in 2008 was expressed in terms of the “independent claims assessment scheme”. Mr Mullen was advised of the distinction between those types of assessments prior to making his FOI request in 2008. This was by letter and e-mail from the respondent on 9 January 2006 and 4 September 2006, respectively. He was also advised that the assessment conducted by the respondent was in respect of process on 3 April 2009, which was before the Schedule was provided to him in July 2009.
22. There is evidence to support Mr Mullen’s contention that the Senator believed that his discussions with the Minister were in relation to a commercial loss assessment of individual claims. It is likely that this was the understanding that Mr Mullen had after his discussion with the Senator. However, as I understand the matter, there was no undertaking of any merits-based or commercial loss assessment of the kind described by the Senator or Mr Mullen. There was only one claims assessment undertaken by the respondent. This resulted in the Report. It is not disputed that it was requested by the Minister or that the Minister approved it. The documents identified for release by the respondent to Mr Mullen relate to that assessment.
23. On 24 July 2009, Mr Mullen agreed that the scope of the documents to be released by the respondent comprised the 266 documents in the Schedule. The respondent was directed by the District Registrar to make a decision in relation to those 266 documents. It has done so. I am satisfied that the documents identified in the Schedule by the respondent were “created as a result of the independent claims assessment scheme agreed to during investigations on the full privatisation of Telstra” and that they fall within the scope of Mr Mullen’s FOI request.
24. As to the documents identified by Mr Mullen as being “beyond scope”, Mr Chand submitted that the brief description of the document in the Schedule was not enough to enable Mr Mullen to conclude that a particular document was not within scope. I accept that submission and, by way of examples, note documents 27 and 30 in the Schedule. Each was tabbed as being beyond scope by Mr Mullen. Each is described in the Schedule as a “Minute to the Minister on the Report of the Independent Assessment of Claims Against Telstra”. Inspection of those documents reveals that they are specifically related to the respondent’s assessment process and are within the scope of Mr Mullen’s request.
DECISION
25. The Tribunal sets aside the decision under review and substitutes its decision that:
the Schedule of Documents dated 25 June 2009 constitutes the full response to Mr Mullen’s FOI request dated 11 December 2008;
all parts of the documents in the Schedule of Documents dated 25 June 2009 which contain personal information other than that pertaining to Mr Mullen be exempt, under s 41(1) of the Freedom of Information Act 1982, from disclosure except for that to which the person identified has consented to the release of that information; and
all parts of the documents in the Schedule of Documents dated 25 June 2009 which are proposed to be exempt under s 42(1) of the Freedom of Information Act 1982 are exempt from disclosure.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny Senior Member
Signed:.............[Sgd].................................................................
Kate Slack, AssociateDates of Hearing 1 and 2 July 2010
Date of Decision 13 July 2010
The Applicant was not represented
Solicitor for the Respondent Mr Avenish Chand
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