Singh and Commonwealth Ombudsman (Freedom of information)
[2024] AATA 969
•6 May 2024
Singh and Commonwealth Ombudsman (Freedom of information) [2024] AATA 969 (6 May 2024)
DecisionNumber: 2020/5740, 2020/7746
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2020/5740 and 2020/7746
Re:Pravindra Kumar Singh
APPLICANT
AndCommonwealth Ombudsman
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:6 May 2024
Place:Melbourne
The Tribunal affirms the decisions under review.
.............................[sgd]...........................................
Deputy President Britten-Jones
Catchwords
FREEDOM OF INFORMATION – review of decision to refuse access to documents related to a complaint lodged with the Commonwealth Ombudsman about the Department of Immigration – claim that documents are exempt under s 42 of the Freedom of Information Act 1982 because documents would be privileged from production on the ground of legal professional privilege – further exemptions under sections 47E(d) and 47F – whether disclosure of documents would have a substantial adverse effect on the operations of the office of the Commonwealth Ombudsman – whether disclosure would involve unreasonable disclosure of personal information – whether disclosure is in or contrary to the public interest – whether parts of a document are irrelevant to the access request – decision affirmed
Legislation
Freedom of Information Act 1982 (Cth)
Cases
AWB Ltd v Cole (2006) 155 FCR 30
Grant v Downs (1976) 135 CLR 674
Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645Southern Equities Corporation Ltd (in liq) v Arthur Anderson & Co (1997) 70 SASR 166
Secondary Materials
Office of the Australian Information Commissioner, Freedom of Information Guidelines – Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Cth) (November 2023)
REASONS FOR DECISION
Deputy President Britten-Jones
The applicant is seeking access to certain documents requested under the Freedom of Information Act 1982 (Cth) (FOI Act). He is a citizen of Fiji who first came to Australia in 2002.[1] In 2017 he became dissatisfied with his dealings with the Department of Immigration, and he lodged a complaint with the respondent.[2] The applicant then commenced litigation against the respondent in the Federal Court.
[1] Applicant Affidavit sworn 30 June 2021 (‘Applicant Affidavit’ at Exhibit 1, 279) at [4].
[2] Applicant Affidavit at [13].
The documents requested by the applicant on 20 November 2018 relate to a decision by the respondent to not investigate his complaint about the Department of Immigration. The documents requested by the applicant on 8 May 2019 relate to the respondent’s reconsideration of the complaint and a further decision to not investigate.
The issues for determination are:
(a)What is the extent of the material responsive to the requests?
(b)Are the documents in issue exempt or conditionally exempt from disclosure under ss 42, 47F and 47E(d) of the FOI Act?
(c)If conditionally exempt, would disclosure be contrary to the public interest?
The respondent has prepared a schedule of documents which describes the 30 documents in issue in 2020/5740 and the 14 documents in issue in 2020/7746.
The applicant provided an affidavit sworn on 30 June 2021. The respondent provided an affidavit affirmed on 11 June 2021 from Lisa Collett, the Chief Operating Officer from the office of the respondent. The applicant prepared written submissions dated 16 July 2021, 27 August 2021, 25 May 2022, 25 January 2024 and 12 February 2024. There was a hearing before the Tribunal (differently constituted) on 4 April 2022 and a decision dated 15 August 2022 which was subsequently set aside by a consent order of the Full Court of the Federal Court on 12 July 2023. The re-hearing of the matter took place on 5 February 2024. The parties agreed for the re-hearing that no further evidence was required and that they would rely upon the transcript of evidence given at the hearing on 4 April 2022. At that earlier hearing Lisa Collett was cross-examined on her affidavit.
With respect to the request for access to documents in action 2020/7746, the applicant said in his affidavit:
13.On 7 October 2017 Navindar made a formal complaint (the complaint) on my behalf to the Respondent.
14.The Respondent did not accord the complaint any real consideration in truth. His
delegates were simply not interested and made us (Navindar, myself and Carla) look
like troublemakers; making unnecessary complaint against Immigration. This simply
aggravated Carla's mental health issues.15.There's huge amount of documents generated by the complaint. Due to my Caregiver duties to Carla and the strict deadlines to file my affidavit with AAT, I cannot produce all of these documents that fully demonstrates the Respondent treating me unfairly.
16.Most of the documents were with Navindar but he cannot locate them now. It included information Navindar had sought from the Respondent under the FOI legislation. Some of the information was provided; but most were withheld by the Respondent.
17.During mid-August 2018 I met Andrew Moti Singh (Andrew) who is a social justice advocate for members of the Fijian and Pacific Island communities. Andrew has taken complaints against Immigration and other federal agencies to the Commonwealth Ombudsman since 1990. I am not related to Andrew.
18.On 13 September 2018 I sought judicial review of the Respondent's decision not to
investigate the complaint. Annexed as Exhibit A is a sealed copy of my application by the Federal Court Australia NOS1701/2018 (the application).
19.After I served the application on the Respondent, I received a letter dated 24 October 2018 from his lawyers AGS. Annexed as Exhibit B is a copy of that letter.
20.I recall discussing the letter with Andrew. He advised me to reject AGS's suggestion that the Court make orders to dismiss the application. He said I should discontinue the application by consent so that if the Respondent made the same decision after the reconsideration, then I could re-activate my application.
21.On 2 November 2018 I signed Notice of Discontinuance. Annexed as Exhibit C is a
copy of that document.
22.I also formally appointed Andrew to be my authorised representative to deal with the
Respondent in his reconsideration of the complaint. I recall signing the Respondent's
forms to this effect.23.On 20 November 2018 I sought access under FOI from the Respondent. This is the
AAT matter 2020/7746. I later asked Andrew to handle this matter on my behalf because I knew from past experience the Respondent will withhold crucial information.
(emphasis in original)
With respect to the request for access to documents in action 2020/5740, the applicant said in his affidavit:
24.Andrew told me the Respondent's delegate Shelly Tong (Tong) would reconsider the complaint and she asked for any further submissions including medical reports on Carla and myself.
25.On 29 November 2018 Andrew provided Tong with further submissions and pointed out that he was going through the documents released by the Respondent that Navindar had previously sought. Annexed as Exhibit D is a copy of Andrew's letter.
26.By letter dated 3 May 2019 Tong indicated she will not investigate the complaint. Annexed as Exhibit E is a copy of that letter. She sought further submissions from Andrew before making her final decision.
27.On 8 May 2019 Andrew sought access under FOI regarding Tong's reconsideration of the complaint. This is the AAT matter 2020/5740.
28.I recall Andrew providing Tong with his lengthy response on 9 June 2019. He gave me a copy of that letter. I could not locate it at the time of singing this affidavit. I could only locate an attachment to it which is a copy of email of 16 August 2018 from David Pezzanite. Annexed as Exhibit F is a copy of that email.
29.In her reply dated 25 June 2019 Tong stood by her decision not to investigate my complaint. Annexed as Exhibit G is a copy of Tong's letter.
30.I did not re-activate my judicial review because within days after Tong refused to investigate the complaint Immigration advised me that they had granted the waiver so I could re-lodge my partner visa.
31.While I was pleased about this, I continued to seek information from the Respondent that I honestly believe will expose his misconduct and unfair treatment of me and Carla.
The applicant provided other reasons for why he was seeking the documents in issue, but I note that s 11(2) of the FOI Act provides that a person’s right of access is not affected by their reasons, nor the agency’s belief as to what their reasons are. The onus in this case, where the applicant has applied for review, is upon the respondent to establish that the decisions refusing access are justified, or that the Tribunal should give a decision adverse to the applicant. This requires the Tribunal to consider each of the provisions of the FOI Act said to apply, namely ss 42, 47F and 47E(d).
STATUTORY FRAMEWORK
Freedom of Information Act 1982
The High Court considered the legislative framework of the FOI Act in Kline v Official Secretary to the Governor-General:[3]
…The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.
[3] [2013] HCA 52; (2013) 249 CLR 645, 661 at [37].
The general objects of the FOI Act are set out in s 3 as follows:
(1)The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a)requiring agencies to publish the information; and
(b)providing for a right of access to documents.
(2)The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a)increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b)increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
To promote the objects in s 3(1)(b), s 11(1) 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.
Section 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the FOI Act ‘subject to this section’.
Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document.
The term ‘exempt document’ is defined in s 4(1) to include ‘a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)’. Section 31B provides that:
A document is exempt for the purposes of this Part if:
(a) it is an exempt document under Division 2; or
(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
If a document is exempt, the agency is not required to provide the document.
THE CLAIM FOR EXEMPTION UNDER SECTION 42 – LEGAL PROFESSIONAL PRIVILEGE
Section 42 and case law on legal professional privilege
The respondent has withheld certain documents as exempt due to a claim of legal professional privilege. Section 42 provides:
Documents subject to legal professional privilege
(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
(3) A document is not an exempt document under subsection (1) by reason only that:
(a) the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and
(b) the information is operational information of an agency.
A document will be exempt from disclosure pursuant to s 42 if it would be privileged from production in legal proceedings on the ground of legal professional privilege. There is no definition of legal professional privilege in the FOI Act and therefore one turns to the common law concepts.
The principle of professional privilege to be applied in Australia was first stated by Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677:
…a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.
The relevant principles were later articulated by Young J in AWB Ltd v Cole (2006) 155 FCR 30 at 44 to 47:
(1) The party claiming privilege carries the onus of proving that the communication was undertaken, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice. The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation. It might also be discharged by reference to the nature of the documents, supported by argument or submissions.
(2) The purpose for which a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive. It may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication.
(3) The existence of legal professional privilege is not established merely by the use of verbal formula. Nor is a claim of privilege established by mere assertion that privilege applies to particular communications or that communications are undertaken for the purpose of obtaining or giving “legal advice”. If assertions of that kind are received in evidence in support of the privilege claim, their conclusionary nature can leave unclear what advice was really being sought. There will be cases in which a claim of privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed.
(4) Where communications take place between a client and his or her independent legal advisers, or between a client's in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications. In Kennedy v Wallace, Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.
(5) A “dominant purpose” is one that predominates over other purposes; it is the prevailing or paramount purpose.
(6) An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence.
(7) The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character.
(8) Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like, whether or not they are actually provided to the client.
(9) Subject to meeting the dominant purpose test, legal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client's legal adviser to enable him or her to advise. The privilege extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or not they are themselves actually communicated to the lawyer.
(10) Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client…
(11) Legal professional privilege protects communications rather than documents, as the test for privilege is anchored to the purpose for which the document was brought into existence. Consequently, legal professional privilege can attach to copies of non-privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test. In Propend at 512, Brennan CJ added a qualification to this principle: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the persons seeking to execute the warrant, and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the otherwise privileged copy loses its protection.
(12) The Court has power to examine documents over which legal professional privilege is claimed. Where there is a disputed claim, the High Court has said that the court should not be hesitant to exercise such a power…
(citations omitted)
Documents claimed to be privileged
The material that the respondent claims to be exempt under s 42 is: [4]
(a)parts of the respondent’s records, namely the AGS quote for legal representation in the Federal court proceedings (NSD1701/2018) that would reveal advice regarding the litigation strategy, as well as approval of expenditure and specific invoices that contain details of the litigation strategy or legal advice and assistance provided by AGS;[5]
(b)communications with AGS about the proceedings including advice and matters for instruction regarding representation of the respondent throughout and resultant to the proceedings;[6] and
(c)internal communications within the respondent between the Legal Team and staff.[7]
[4] Affidavit of Lisa Collett at [15].
[5] Documents 12, 17, 18, 19 and 20 in 2020/5740 and documents 1, 2 and 3 in 2020/7746.
[6] Documents 15 and 17 in 2020/5740 and documents 4 to 7 and 9 to 14 in 2020/7746.
[7] Document 11 in 2020/5740.
Applicant Contentions as to privilege
The applicant initially contended that advice given by the respondent’s in-house lawyer was not protected by legal professional privilege in the absence of a practising certificate. This issue has fallen away because of the evidence that Ms Wandmaker did hold a practising certificate.[8]
[8] Exhibit 3.
The applicant maintains his primary contention that privilege cannot be claimed because of the existence of fraud.
The applicant relies upon Southern Equities Corporation Ltd (in liq) v Arthur Anderson & Co (1997) 70 SASR 166, in which Doyle CJ addressed the issue of the breadth of this exception and concluded at 174:
I conclude from this reference to authority that the claim of privilege will fail only if there is material raising an arguable case that the relevant communications were made for the purpose of furthering or assisting a crime or fraud, and that fraud in this context embraces a range of legal wrongs that have deception, deliberate abuse of or misuse of legal powers, or deliberate breach of a legal duty at their heart. It is not enough, I consider, that one could simply say that a transaction constituted sharp practice, or fell below the normal standard of commercial probity. It is not enough, I consider, that one would regard a transaction on which advice was sought as artificial, or as deliberately structured to take advantage of the law on a topic. In light of the authorities, one cannot be more precise than that.
The applicant contends that it was improper for the respondent to request in the AGS letter dated 24 October 2018[9] for the applicant to sign a consent dismissal. The applicant says that he provided his consent to the dismissal of his Federal Court proceedings on the basis of a false assurance that his complaint would be reconsidered and that the respondent’s delegate, Ms Tong, did not reconsider it according to law. The applicant says that there is clear evidence of fraud by Ms Tong “in the form of deliberate abuse or misuse of legal powers, breach of legal duty or simply outright illegality.”[10] In earlier correspondence dated 27 July 2019, the applicant made claims of “an orchestrated campaign to derail full and proper investigation” of the applicant’s complaint and that the applicant “was later hoodwinked to withdraw his application … because that would have exposed corruption within the Immigration Department”.[11]
[9] Applicant Affidavit, Exhibit B.
[10] Applicant’s Further Submissions dated 25 May 2022 at [49].
[11] Exhibit 1, 58.
Findings as to privilege
I do not accept the applicant’s contentions as to fraud in support of his argument that privilege cannot be claimed. The evidence does not establish a prima facie case of fraud or improper conduct. There was nothing misleading or duplicitous in the 24 October 2018 letter by which the respondent notified through its lawyers that it was prepared to reconsider the original complaint of 7 October 2017. Indeed, the respondent did exactly that, namely it reconsidered the complaint and decided to exercise the available discretion under s 6 of the Ombudsman Act 1976 (Cth) not to investigate his complaint. The letters dated 3 May 2019 and 25 June 2019[12] from Ms Tong, as the delegate of the respondent, disclose that appropriate consideration was given to the issues raised by the applicant. There is not even a hint of impropriety or fraud. I have no doubt that the applicant was disappointed with this outcome but there was no evidence of fraud or improper purpose.
[12] Applicant Affidavit Exhibits E and G.
It remains to consider whether the documents the subject of a s 42 claim would be privileged from production in legal proceedings on the ground of legal professional privilege.
The documents over which privilege is claimed either in part or full are documents 11 (and its duplicate at 26), 12, 15, 17, 18, 19, 20 and 27 in 2020/5740 and documents 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13 and 14 in 2020/7746. These documents are dated from 8 October 2018 to 23 April 2019. The litigation in the Federal Court in which AGS represented the respondent was commenced by the applicant on 13 September 2018. AGS provided a quote for its legal services to the respondent on 8 October 2018 and provided preliminary advice with respect to the Federal Court proceedings on 19 October 2018. AGS remained engaged by, and provided advice to, the respondent after the applicant filed a notice of discontinuance in the Federal Court on 2 November 2018 and during the period of the reconsideration of the applicant’s complaint. AGS rendered invoices to the respondent which contained details of the work done including the giving of advice. Ms Wandmaker was working as the Principal Lawyer in the office of the respondent providing in-house legal services to the respondent on an independent basis. The assertion by the applicant of a lack of independence was without any foundation. She had her own legal team which operated independently and separate from other areas of the respondent’s office.[13] Her advice was confidential and was marked ‘Sensitive: Legal’. Other communications were also marked ‘Sensitive: Legal’ and contained a note that they may contain confidential or legally privileged information. Ms Collett deposes in her affidavit to the lawyer-client relationship that existed during this period between the respondent both internally with its legal team and externally with the AGS.
[13] Collett affidavit at [17] to [19].
It is apparent[14] to me from the face of the documents in issue that they are subject to legal professional privilege because they disclose:
(a)communications for the dominant purpose of engaging legal representation, including the communications with AGS and options for the litigation strategy received from AGS in the quote provided;
(b)communications between the respondent and AGS for use in, or in relation to, the Federal Court proceedings;
(c)legal advice given (or sought to be given) by AGS to the respondent; and
(d)internal communications between the legal team and others in the respondent about the legal issues for response to litigation.
[14] See AWB Ltd v Cole (2006) 155 FCR 30, 45 at [4).
I accept the evidence of Ms Collett at paragraphs 20 and 21 of her affidavit that the documents over which privilege is claimed and confidential and were created for the dominant purpose of representing and advising the respondent in the Federal Court proceedings and in the actions arising from and subsequent to those proceedings.
I conclude that the claimed documents are exempt from disclosure under s 42 of the FOI Act because they would be privileged from production in legal proceedings on the ground of legal professional privilege.
THE CLAIM FOR EXEMPTION UNDER SECTION 47F – PERSONAL PRIVACY
Relevant principles
Section 47F relates to documents which disclose personal privacy of individuals and provides:
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(a)the extent to which the information is well known;
(b)whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c)the availability of the information from publicly accessible sources;
(d)any other matters that the agency or Minister considers relevant.
The FOI Guidelines at 6.138 say that the personal privacy exemption is designed to prevent the unreasonable invasion of third parties’ privacy. The Guidelines at 6.142 say that the key factors for determining whether disclosure is unreasonable include:
(a) the author of the document is identifiable
(b) the documents contain third party personal information
(c) release of the documents would cause stress on the third party
(d) no public purpose would be achieved through release.
Other matters that have been considered relevant include:[15]
·the nature, age and current relevance of the information
·any detriment that disclosure may cause to the person to whom the information relates
·any opposition to disclosure expressed or likely to be held by that person
·the circumstances of an agency’s collection and use of the information
·the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act
·any submission an FOI applicant chooses to make in support of their application as to their reasons for seeking access and their intended or likely use or dissemination of the information, and
·whether disclosure of the information might advance the public interest in government transparency and integrity.
[15] Freedom of Information Guidelines at [6.143]
The s 47F claim relates to very limited parts of documents 2, 3, 4, 5, 6, 7, 11, 14, 17, 18, 19 and 20 of 2020/5740 and document 2 of 2020/7746. Most of the claims relate to names, phone numbers and email addresses.
Ms. Collett expresses her concerns in her affidavit if this information is disclosed. I accept that the following concerns are genuine and are made out:
35. If the direct contact information for agency officers is released, I am concerned that it could expose these officers to demanding, aggressive or abusive behaviour, including obscene language. I consider it is important to have processes and practices to mitigate the exposure of agency staff to risks from such behaviour.
36. Communications from the applicant's representative to Ombudsman officers has demonstrated that this risk arises directly in the present situation. This is evident in the language used by the applicant's representative in:
36.1.making an application for internal review (FOI 2019-10019) in which Mr Andrew Singh referred to the Ombudsman officer who made the first instance decision as a "dickhead" and a "fuckwit", and
36.2.a recent communication from the applicant's representative annexed at LC-4 in relation to another client (name withheld). I regard the further response to my email to Mr Singh counselling him on his unreasonable behaviour which lacked insight about his behaviour by justifying the use of 'bigot' and 'fuckwit' to describe a member of staff as 'part and parcel of everyday Australian vernacular'.
37. While the above examples occurred in communications to the group mailboxes, I consider the impact to agency staff would be much greater if they are exposed to phone calls and direct emails to their individual mailboxes.
38. I am further concerned about the flow-on consequences if additional contact details of staff or Office inboxes are publicly disclosed. Beyond the Applicant's representative, there are a number of members of the public in relation to whom the Office has needed to engage its UCC Policy to manage their unreasonable contact. If these details were to be made public, including on our disclosure log under s 8C of the FOI Act, I expect those individuals could obtain and use those details to directly contact staff with vexatious or harassing content.
39. The options to manage unreasonable complainant conduct are more confined in relation to FOI requests. I am advised that unless there is an applicable vexatious applicant declaration, the Office does not have the same option to refuse to deal with a request for access to documents under the Freedom of Information Act 1982 (FOI Act).
40. I am therefore concerned that the officers involved in the requested documents are protected from having their name, direct contact and signature details released in this situation.
41. The impact would not just be for this situation. The same information could be disclosed to others dealing with this office or the Department of Home Affairs. The Department of Home Affairs expressed its concern about the disclosure of personal and contact details of officers not in the Senior Executive Service (SES) as well as the mobile and work telephone numbers of SES staff. Their response to the Office (with redactions to contact information that is not relied on as evidence in this proceeding) is at LC-5.
I consider that the release of the name, phone number and email address of government officers in the documents in issue would be an unreasonable disclosure of personal information. The limited extent of the current redactions of that personal information is appropriate. I find that the documents containing this personal information are conditionally exempt under s 47F of the FOI Act. The release of that personal information would likely cause stress to those persons and it would amount to an unreasonable invasion of privacy. Further, it would serve no useful purpose. This is particularly so in circumstances where the applicant has shown a tendency to abuse and use foul language and make unsubstantiated allegations in his correspondence to officers of the respondent.[16]
[16] See for example pages 66 to 69 of Exhibit 1 in the letter from the applicant dated 27 July 2019.
DOCUMENTS AFFECTING OPERATIONAL CONDUCT – S 47E(D)
Section 47E(d) relates to documents which disclose certain operations of agencies and provides:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
…
(d) have a substantial adverse effect on the proper and efficient conduct of
the operations of an agency.
The FOI Guidelines further advise on the meaning of ‘substantial adverse effect’ at [5.20]:
The term ‘substantial adverse effect’ broadly means ‘an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person’ [see Re Thies and Department of Aviation [1986] AATA 141 [24]). The word ‘substantial’, taken in the context of substantial loss or damage, has been interpreted as ‘loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal’ [see Tillmanns Butcheries Pty Ltd v Australasian Meat Employees Union & Ors (1979) 27 ALR 367 383].
(Footnotes included)
The phrase ‘could reasonably be expected’ requires more than a mere assumption or allegation that damage may occur. The Guidelines provide at [6.103]:
…The particulars of the predicted effect should be identified during the decision making process, including whether the effect could reasonably be expected to occur. Where the conditional exemption is relied upon, the relevant particulars and reasons should form part of the decision maker’s statement of reasons, if they can be included without disclosing exempt material (s 26, see Part 3).
The s 47E(d) claims relate to parts of documents 2, 3, 4, 5, 6 and 7 in 2020/5740 and in particular an email address of the Department of Home Affairs which is not used for public communications. Disclosure of this email would circumvent the necessary approach of centralising through a Public Contact Team the management of communications with the public. It is reasonable to expect that individuals who are frustrated by the conduct of government agencies could use the private contact details, if they are disclosed, to air their complaints which would affect the efficiency of managing multiple complaints. There is no need for the disclosure of these private details and it would cause detriment to operational procedures if they were made public. Accordingly, it is appropriate for the applicant to be denied access to them.
I conclude that the parts of the documents over which there is a s 47E(d) claim are conditionally exempt documents.
The public interest
If the documents are conditionally exempt, s 11A(5) provides that access must be given to them unless access at that time would, on balance, be contrary to the public interest.
Section 11B(3) provides:
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a)promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b)inform debate on a matter of public importance;
(c)promote effective oversight of public expenditure;
(d)allow a person to access his or her own personal information.
The above factors have little to no applicability to the personal information in the documents and they are overwhelmingly outweighed by the factors in favour of denying access. The release of personal information would likely cause stress to those persons and it would amount to an unreasonable invasion of privacy. The release of information sought would cause detriment to operational procedures. Giving the applicant access to this private personal information would, on balance, be contrary to the public interest.
Reasonableness of searches
Ms Collett deposes to the searches for documents undertaken in response to the requests for access as follows:
8. I am aware from my review of documents relating to this matter, and advice from Office staff, that various aspects of the FOI requests made by the applicant returned `nil documents' results at the original or internal review decision stages. The Office has undertaken further enquiries and searches to explore further those issues.
9. In relation to AAT 2020/5740:
9.1.In the course of the Tribunal review, the Office has undertaken further searches for documents responsive to items 11-14 of the request. These included:
9.1.1.Searches by the Human Resources team for any document(s) responsive to item 11 for position descriptions for Ms Tong and Mr Pezzanite, and Inquires with the Ombudsman's administrator of the Resolve complaint management system, to consider whether any further information relevant to items 12-14 of the request could be produced.
9.2.As a result of these searches, a further 3 documents were located that I understand are relevant to items 11, 12 and 14. These are documents 28-30 in the schedule of documents.
9.3.The Ombudsman's Resolve administrator confirmed, and I believe, that the information for item 13 is not captured in information fields in the Resolve system and there is not a way to generate a report that would provide this information.
9.4.There are no further searches I am aware of that could reasonably be undertaken and I believe that all documents relevant to this request have now been identified.
10. In relation to AAT 2020/7746:
10.1.Further searches were conducted for any document responsive to item 3 (organisation chart for the Legal Team) including on the Ombudsman's intranet with information on our electronic records management system Objective for any organisational chart or structure with this information.
10.2.The Ombudsman's organisational chart is published on its website. This includes Ombudsman personnel to the team level but not below that.
10.3.There is no document reflecting the Legal Team members or structure for that time
10.4.There are no further searches that could reasonably be undertaken for this document.
10.5.Members of the Ombudsman Legal Team are now substantively different to members in the team at the time of the request.
11. From my knowledge of the Ombudsman system and practices, I consider these searches to be all the ones that could reasonably be undertaken to identify documents relevant to the requests.
I accept the evidence given by Ms Collett in relation to the searches and I conclude that all reasonable steps have been taken to identify documents relevant to the requests made.
DECISION
The decision of the Tribunal is to affirm the decision under review.
48. I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
..................................[sgd]......................................
Associate
Dated: 6 May 2024
Dates of hearing: 5 February 2024 Applicant: Self-represented Advocate for the Respondent: Justin Davidson Solicitors for the Respondent: Australian Government Solicitor ANNEXURE A
Exhibit List
Party Tendering Description of Evidence Exhibit Number 49. Respondent
50. Remittal Bundle 1 to 16 (paged 1 to 658)
1
51. Applicant
52. Applicant’s submissions dated 18 January 2024 (paged 1 to 7) together with Attachments A to H (paged 8 to 70)
2
53. Respondent
54. Practising certificates from ACT Law Society for Ms Kate Wandmaker dated 5 June 2017, 1 July 2018 & 5 June 2019 (paged 1 to 3)
3
2
7
0