Singh and Commonwealth Ombudsman (Freedom of information)

[2021] AATA 54

Singh and Commonwealth Ombudsman (Freedom of information) [2021] AATA 54 (27 January 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)  No: 2020/5740

FREEDOM OF INFORMATION DIVISION               )

Re: Pravindra Kumar Singh

Applicant

And: Commonwealth Ombudsman

Respondent

DIRECTION

TRIBUNAL:  Mr S Evans, Member

DATE OF CORRIGENDUM:            4 May 2021

PLACE:  Sydney

IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), that the text of the decision in this application is to be altered such that the reference to file number “2020/7746” on page one of the decision is removed.

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Mr S Evans, Member

Division:                  FREEDOM OF INFORMATION DIVISION

File Numbers:         2020/5740

2020/7746

Re:  Pravindra Kumar Singh

APPLICANT

And  Commonwealth Ombudsman

RESPONDENT

DECISION

Tribunal:                  Mr S Evans, Member

Date:  27 January 2021

Place:  Sydney

1.Pursuant to subsection 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal orders that publication or other disclosure of direct telephone contact numbers of Commonwealth Ombudsman staff in T-Documents T15, T15(b), T15(c), T15(f), T17 and T18 and the names of two, and direct telephone contact details of one, Department of Home Affairs staff members in T15(c), is restricted to:

(a)  the Respondent, their legal advisers and other persons who are directly involved in the preparation and conduct of the Respondent’s case; and

(b)  Members and staff of the Tribunal, including transcription service providers, performing duties in relation to the proceeding.

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Mr S Evans, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for confidentiality order – direct contact details

– information not materially relevant – risk of harm to individuals – whether public interest requires disclosure – application for confidentiality order granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 37

CASES

Bartucciotto and Commonwealth Ombudsman [2005] AATA 1109 JWTT v and Commissioner of Taxation (Taxation) [2017] AATA 1612 Pochi and Minister for Immigration And Ethnic Affairs [1979] AATA 64

REASONS FOR DECISION

Mr S Evans, Member 27 January 2021

INTRODUCTION

1.This is an interlocutory decision concerning an application made by the Commonwealth Ombudsman, who is the respondent in a substantive application made by Pravindra Kumar Singh (“Mr Singh”). The Commonwealth Ombudsman is seeking that specific sections of the documents lodged under section 37(1)(b) of the Administrative Appeals Act 1975 (Cth) (“the AAT Act”) be subject to a confidentiality order under section 35(4).

BACKGROUND

2.Mr Singh is seeking review of a decision of the Commonwealth Ombudsman made on 28 August 2019. The decision follows an internal review of Mr Singh’s request for documentation relating to a migration application, which provided partial access to certain documents requested under the Freedom of Information Act 1982 (Cth) (“the FOI Act”).

3.The internal review decision allowed appeal rights to the Office of the Australian Information Commissioner (“OAIC”). On 24 August 2020 a delegate of the OAIC decided not to undertake a review of the decision and instead determined Mr Singh could make a direct application to the Administrative Appeals Tribunal (“the Tribunal”). On 20 September 2020 Mr Singh applied to the Tribunal for review of the decision of the Commonwealth Ombudsman.

4.In preparation for the matter coming before the Tribunal, the Commonwealth Ombudsman has lodged documents (“T-documents”) under section 37(1)(b) of the AAT Act.

5.The Commonwealth Ombudsman has requested that the Tribunal give a direction prohibiting the publication of confidential material contained within the T-documents and that those parts of the T-documents be redacted.

6.The Tribunal has before it a copy of the unredacted T-documents and written submissions were received from both parties prior to an interlocutory hearing which took place on 15 December 2020.

ISSUES AND LEGISLATION

7.Section 37 of the AAT Act requires that where a person has made a decision that is the subject of an application for review by the Tribunal, they must lodge with the Tribunal a copy of a statement setting out the findings on material questions of fact and every other document that is relevant to the review of the decision by the Tribunal:

Decision-maker must lodge material documents

(1)  Subject to this section, a person who has made a decision that is the subject of an application for review (other than second review) by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of:

(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

(b)  subject to any directions given under section 18B, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.

8.Section 35(4) of the AAT Act provides that the Tribunal may give directions prohibiting or restricting the publication or disclosure of information which relates to a hearing and is lodged with the Tribunal:

(4)    The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:

(a)  relates to a proceeding; and

(b)  is any of the following:

(i)    information that comprises evidence or information about evidence;

(ii)  information lodged with or otherwise given to the Tribunal.

9.Section 37(1AF)(a) provides for an exemption to the requirement to lodge documents where an application is made for a direction under section 35(4):

(1AF) If:

(a)  a person who has made a decision that is the subject of an application for a review by the Tribunal would, apart from this subsection, be required under paragraph (1)(b) or subsection (1AAB) to lodge a copy of a document with the Tribunal in respect of the application; and

(b)  within the period applicable under subsection (1) the person:

(i)  applies to the Tribunal for a direction under subsection 35(3) or (4) in relation to the document and lodges with the Tribunal, together with the application for the direction, a copy of the document; and

(ii)  gives a copy of the application for the direction to each party to the application for review;

the person is not required to comply with paragraph (1)(b) or subsection (1AAB) in relation to the document unless and until the Tribunal, after hearing the application for the direction, directs the person to do so.

CONTENTIONS OF THE PARTIES

10.The Commonwealth Ombudsman specifically requests the Tribunal give directions prohibiting the publication of the confidential material, which it has identified as the direct telephone contact numbers of Ombudsman Office staff contained in parts T15, T17 and T18 and the names of two, and direct telephone contact details of one, Home Affairs staff members contained in T15.

11.In support of the application it is argued that the identified telephone contact details and the names of the Home Affairs and Ombudsman Office staff will not be materially relevant to any issue in the proceeding. It was submitted that any public interest in the open administration of Tribunal proceedings carries little weight in relation to the redactions that are proposed to the T-documents.

12.Mr Singh has provided a detailed submission opposing the Commonwealth Ombudsman’s request. He asserts that it is in the interests of ‘open justice’ that the direction is not issued and refers to the Commonwealth Ombudsman’s claims in support of the application as ‘humbug’. He claims that phone numbers are a public resource and the provision of the information will aid in exposing what he alleges is unlawful behaviour on the part of the government officers.

CONSIDERATION

13.The purpose of documents filed in accordance with section 37 of the AAT Act is to provide the Tribunal and applicant with information relevant to the review of the decision that is before the Tribunal. The decision before the Tribunal in this application is a decision to refuse access to FOI documents. The role of the Tribunal in conducting such a review is to make the correct or preferable decision. It is not a process to aid Mr Singh’s stated efforts to uncover ‘the unlawful and egregious conduct of the respondent’s senior staff’.

14.The Department of Home Affairs wrote to the Commonwealth Ombudsman stating that the disclosure of staff telephone numbers and direct contact details may expose those staff to the risk of inappropriate, unsolicited approaches, personal attack and harassment.

15.The Tribunal is directed by the Commonwealth Ombudsman to the decision of Bartucciotto and Commonwealth Ombudsman [2005] AATA 1109 (“Bartucciotto”) where Senior Member M D Allen provided a confidentiality order for similar reasons to that claimed by the respondent in this application. In Bartucciotto the Tribunal considered a request which was made pursuant to a different section of the FOI Act; however, the subject documents were similarly created following a complaint made to the Commonwealth Ombudsman concerning the actions of an Australian government department. In Bartucciotto the Tribunal decided that it was proper to refuse disclosure to the applicant of the means of direct contact with individual Commonwealth officers and that access would be contrary to the public interest.

16.Further, whilst acknowledging that this specifically is not a concern in relation to Mr Singh, the Commonwealth Ombudsman noted the general concern that is raised by SM Allen in Bartucciotto at [16] where the Tribunal concludes:

Given the circumstances of this matter and in particular the propensity of the Applicant to pursue his particular concerns obsessively I believe that it is proper to refuse disclosure to him of the means of direct contact with individual

Commonwealth officers. He still has access to the general enquiry number or email address of the agencies who can then direct his enquiries to the appropriate officers without the necessity of disturbing other officers who may be irrelevant to the Applicant’s enquiry.

17.Mr Singh states that ‘the public have a right to know and access those numbers’ and that if ‘if there were any substance to his allegations of threats, intimidation or harassment to his[sic] staff following disclosure of their full name and direct phone contact, then they have a right to report the matter to the Police…’.

18.In Pochi and Minister for Immigration And Ethnic Affairs [1979] AATA 64, Brennan J recognised that the Tribunal could use its powers under section 35 of the AAT Act to promote or facilitate the flow of information. His Honour explained:

Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by [section 35] authorizes it to remove those impediments to the receipt of information.

19.However, the arguments put forward by Mr Singh are not compelling, and I note the observation of DP Bernard J McCabe in the matter of JWTT and Commissioner of Taxation (Taxation) [2017] AATA 1612 (at [18] - [19]) where he stated in relation to section 35 of the of AAT Act that:

While s 35(5) requires that the Tribunal start from the principle that openness is desirable, the sub-section recognises other considerations may point in a different direction. After weighing all the relevant considerations in the balance, the Tribunal may be justified in making confidentiality orders under sub-sections 35(3) or (4).

Sub-section (5) refers to “the confidential nature (if applicable) of the information” as one such consideration. The sub-section understandably does not specify what the other considerations might be. The Tribunal is left to identify what is relevant in each case with the assistance of the parties. [The Tribunal] must then perform the balancing exercise required by the sub-section.

20.Consistent with this observation and the authorities cited above, the Tribunal is satisfied that there is good reason and it is appropriate in the circumstances, that a direction is made under section 35(4) of the AAT Act prohibiting the publication of the direct contact numbers of Ombudsman Office staff and the names and direct telephone contact details of Home Affairs staff as requested by the respondent.

DECISION

21.Pursuant to subsection 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal orders that publication or other disclosure of direct telephone contact numbers of

Commonwealth Ombudsman staff in T-Documents T15, T15(b), T15(c), T15(f), T17 and T18 and the names of two, and direct telephone contact details of one, Department of Home Affairs staff members in T15(c), is restricted to:

(a)the Respondent, their legal advisers and other persons who are directly involved in the preparation and conduct of the Respondent’s case; and

(b)Members and staff of the Tribunal, including transcription service providers, performing duties in relation to the proceeding.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate

Dated: 27 January 2021

Date of hearing:  15 December 2020

Advocate for the Applicant:              Mr A Singh

Solicitors for the Respondent:          Australian Government Solicitor