Singh and Office of the Australian Information Commissioner (Freedom of information)
[2024] AATA 3431
•27 September 2024
Singh and Office of the Australian Information Commissioner (Freedom of information) [2024] AATA 3431 (27 September 2024)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2023/3868
Re:Andrew Singh
APPLICANT
AndOffice of the Australian Information Commissioner
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:27 September 2024
Place:Sydney
The decision of the respondent made on 19 December 2023 is affirmed.
..................................[sgd]......................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – exemptions claimed under ss 47F and 22 – public interest test – whether material was relevant to scope of request – whether disclosure of personal information of a seconded employee is in the public interest – consideration of s 37 in the context of risk of endangering the physical safety of a seconded employee in the public service – decision under review affirmed
LEGISLATION
Freedom of Information Act 1982 (Cth)
Privacy Act 1988 (Cth)
Public Service Act 1999 (Cth)
CASES
Cox v Secretary, Department of Agriculture, Water and the Environment and (Freedom of information) [2023] AATA 375
Re Green and Australian and Overseas Telecommunications Corporation [1992] AATA 252 (1992) 28 ALD 655
Re Maksimovic and Australian Customs Service [2009] AATA 28
Re Murphy and Queensland Treasury (1995) 2 QAR 744Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557
SECONDARY MATERIALS
Office of the Australian Information Commissioner, FOI Guidelines (2023)
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
27 September 2024
Freedom of information (FOI) legislation is designed to achieve transparency and public accountability in Commonwealth administrative decision-making, thereby promoting Australia’s representative democracy. This objective is enshrined in the Freedom of Information Act 1982 (Cth) (FOI Act).
In performing its review function, decision-makers (and the Tribunal standing in the shoes of the original decision-maker) must have regard to the objects of the Act, and the FOI Guidelines (the Guidelines)[1] issued by the Information Commissioner.[2] Although the Guidelines must be taken into account, they are not binding on decision makers, lacking statutory force.[3]
[1] The Guidelines are updated from time to time. The most recent revision occurred in March 2024.
[2] Freedom of Information Act 1982 (Cth) (‘FOI Act’) s 9A.
[3] See Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557 at [87].
BACKGROUND
On 11 August 2022, an employee of a private law firm contracted by the respondent to provide legal services recommended to the Deputy Information Commissioner (DIC) that the single point of contact (SPOC) policy be applied to the applicant for a period of six months.[4] A person subject to the SPOC policy is required to use a dedicated email address in communications with the respondent. This is intended to provide a more efficient customer service.
[4] T20, 150.
The executive brief accompanying the recommendation provided the following rationale:
(i)The large volume of matters opened with the respondent by the applicant;
(ii)The volume of the applicant’s communications with the respondent across a number of service areas, which fostered uncertainty on the part of the respondent’s employees in identifying matters that particular correspondence relates to;
(iii)The applicant creating uncertainty for the respondent’s employees when responding to the respondent’s requests by inviting one line area to rely on documents provided to another area, such as authority, for a different purpose; and
(iv)The applicant’s hostile and often abusive communication to the respondent’s employees, amongst other reasons.
On 15 August 2022, the secondee’s recommendation was accepted by the relevant executive committee of the respondent, after a detailed file review. On 12 September 2022, the DIC informed the applicant, enclosing the relevant SPOC policy, and stating that the decision was based on the number and complexity of the applicant’s matters, and to enhance customer service.
THE APPLICANT’S FOI REQUEST
On 4 October 2022, the applicant made a request for access to documents under the FOI Act, seeking the following:
1. Full names, work designations and status (APS and/or SES) of the current members of the operations committee (the committee) referred to in the policy.
2. All information showing the deliberation and consideration by the committee to put me on SPOC.
3. Information regarding “other relevant matters” that the committee took into consideration in deciding to put me on SPOC.
4. Information showing number of other cases (individuals and organisations) placed on SPOC since the inception of the policy till 30/9/22 inclusive.
5. Information showing “significant efficiencies for the OAIC and enhanced customer service to the individual” resulting from invocation of the policy since its inception till 30/9/22 inclusive.
6. Information regarding advice to the committee from assistant commissioner or principal director regarding a SPOC being assigned to me.
The respondent identified ten documents as falling within scope of the access request,[5] and granted access to five in full and five in part.[6] This was communicated to the applicant by an authorised officer on 5 December 2022.[7]
[5] T22, 213.
[6] T22, 224-225.
[7] An officer of the respondent authorised under subsection 23(1) of the FOI Act to make such decisions.
On 25 January 2023, the applicant requested that the matter be referred directly to the Tribunal. On 30 May 2023, the respondent decided under subsection 54W(b) of the FOI Act not to undertake an IC Review on the basis that “the interests of the administration of the FOI Act” made it desirable that the Decision be considered by the AAT.[8]
[8] T3, 11.
Before the Tribunal, the applicant argued that access should be granted to all ten documents in full.
LEGISLATIVE PROVISIONS
The documents were partially redacted under sections 22 and 47F of the FOI Act. Broadly speaking, section 22 relates to relevance, and section 47F relates to the personal privacy.
Section 22 provides:
Access to edited copies with exempt or irrelevant matter deleted
Scope
(1) This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and
(b) it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that:
(i) access to the edited copy would be required to be given under section 11A (access to documents on request); and
(ii) the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request; and
(c) it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to:
(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and
(d) it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy.
Access to edited copy
(2) The agency or Minister must:
(a) prepare the edited copy as mentioned in paragraph (1)(b); and
(b) give the applicant access to the edited copy.
Notice to applicant
(3) The agency or Minister must give the applicant notice in writing:
(a) that the edited copy has been prepared; and
(b) of the grounds for the deletions; and
(c) if any matter deleted is exempt matter--that the matter deleted is exempt matter because of a specified provision of this Act.
(4) Section 26 (reasons for decision) does not apply to the decision to refuse access to the whole document unless the applicant requests the agency or Minister to give the applicant a notice in writing in accordance with that section.
Section 47F relevantly provides:
Public interest conditional exemptions--personal privacy
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.
As section 47F is a conditional exemption, I must apply the public interest test set out in subsection 11A(5) of the FOI Act. Subsection 11A(5) provides:
Exemptions and conditional exemptions
(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
The applicant’s grounds for review are set out in a statement dated 18 September 2023. His submission identifies several issues, including the following:
(a) In respect of the information in the Redacted Documents found to be conditionally exempt under s 47F of the FOI Act, whether the Respondent properly applied the public interest test in deciding that it would be against the public interest to provide the Applicant with access to such information;
(b) By not providing the conditionally exempt information (being the name and other information of the individual seconded to the Respondent), whether the Respondent has subverted its accountability, in breach of the objects of the FOI Act;
(c) In respect of the information in the Redacted Documents found to be irrelevant or out of scope under s 22 of the FOI Act, whether the Respondent was able to make such a finding without consulting the individuals whose information was subject to redaction; and
(d) Whether the Respondent had jurisdiction to apply s 22 of the FOI Act to the Redacted Documents in the circumstances.
THE HEARING
The matter was heard by the Tribunal on 20 March 2024. The applicant was self-represented. The respondent was represented by Ms H. Sims, solicitor.
The applicant filed the following documents:
·Applicant’s reply to RSFIC (with attachments) dated 19 November 2023 and filed on 20 November 2023;
·Applicant’s amended reply to RSFIC dated 19 November 2023 and filed 24 November 2023;
·Letter from respondent dated 19 December 2023 (with covering email from Applicant dated 2 February 2024);
·Applicant’s response to Affidavit of Ms Hale and Amended RSFIC dated and filed on 19 March 2024; and
·Submission of Mr Rex Patrick Undated, filed on 19 March 2024.
The respondent filed the following documents:
·Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated and filed 27 October 2024;
·Supplementary RSFIC dated 13 March 2024 and filed on 15 March 2024;
·Affidavit of Annamie Karin Hale dated 13 March 2024 and filed on 14 March 2024;
·T-Documents; and
·Unredacted copies of T5, T7, T11, T14, T20, T22 and T23 (subject to s.35 Order).
In response to orders made by the Tribunal on 9 October 2023, the respondent filed an affidavit by Ms Hale, Assistant Commissioner of the OAIC sworn on 13 March 2024, relating to the exemption claim. The affidavit states:
3. …In preparing my affidavit I have reviewed unredacted copies of the six documents disclosed in part to the Applicant on 5 December 2022, which are the subject of this proceeding.
4. In conducting my review of the redactions applied to the documents disclosed in part to the Applicant on 5 December 2022, I confirmed that:
(a) the redactions applied to six documents marked within the bundle of documents filed by the Respondent under s 37 of the Administrative Appeals Act 1975 (T22) relate to third party individuals or matters relating to third party individuals that are irrelevant to the Applicant's request for access to documents dated 4 October 2022. Section 22 requires agencies to prepare an edited copy of a document with irrelevant material deleted, if possible. The redactions to third party information were applied for this purpose; and
(b) minor redactions were made on the basis of s 47F of the Freedom of Information Act 1982 (Cth) to remove the name and other personal information of a secondee to the OAIC from an external law firm (at T22, 226 and 267 271)
5. No redactions were applied to text relating to the Applicant.
6. Secondees, contracted by the OAIC, are not public servants and remain employed by their employer, the external service provider outside of the public service.
7. The secondee whose information was redacted from the documents that were provided to the Applicant was not a decision particular, the secondee was not a decision maker to put Mr Singh on the Single Point of Contact (SPOC) arrangement. The secondee was a junior member of a third party law firm who provided the OAIC with temporary assistance. The secondee is no longer a secondee with the OAIC.
8. The secondee was consulted (Tl 1) and opposed the release of their personal identifying details (T14). I considered that the personal privacy interests of the secondee outweighed the interest the Applicant had in knowing the identity of this person and considered it contrary to the public interest to give the Applicant access to that information.
9. The Applicant is able to understand the basis for why he was put on the SPOC arrangement and who the OAIC decision makers were without knowing the personal identifying details of the secondee.
At the applicant’s request, the respondent made the Assistant Commissioner available for cross-examination. The applicant wished to test her opinions regarding the applicability of the relevant statutory provisions (sections 22 and 47F) by reference to her qualifications and expertise.[9] The applicant also wished to test her understanding of the secondee’s status as a secondee, and the recommendation made in connection with the SPOC policy.[10] Ms Sims submitted that it would not be appropriate to allow questioning of the witness about the merits of otherwise of applying the SPOC policy to him.
[9] Transcript, 27 March 2024, 3.
[10] Transcript, 27 March 2024, 9.
I indicated that the witness could be asked questions about the basis of her belief that the relevant provisions had been correctly applied, as well as the grounds for her belief that secondees are not public servants.[11] The views of the learned Assistant Commissioner although important are by no means determinative, but as an indulgence I agreed to allow questions relating to her qualifications and expertise. The merits or otherwise of the decision to apply the SPOC policy were beyond the scope of cross-examination. The cross-examination proceeded on that basis.[12]
[11] Transcript, 27 March 2024, 8.
[12] Transcript, 27 March 2024, 17.
In response to the applicant’s questions, Ms Hale confirmed that she was authorised by virtue of her position as Assistant Commissioner of the Corporate Branch to affirm the affidavit, and that she was a qualified lawyer and admitted to practice in Victoria.
The applicant asked about the number of people to which the SPOC policy had been applied. The witness said that it was six in number and noted that he had been provided with that information.[13] The applicant indicated that he had not noticed that this information had been provided.[14]
[13] T22, 358.
[14] Transcript, 27 March 2024, 20.
The applicant asked whether secondees in general were bound by some code of conduct equivalent to the Public Service Act1999 (Cth) (PS Act) or describing the values of the PS Act. The witness explained that the secondee was an employee of an external law firm contracted to provide services to the respondent. Secondees were required to sign a confidentiality agreement, but she could not say definitively whether compliance with the PS Act formed part of the confidentiality agreement.[15]
[15] Transcript, 27 March 2024, 26.
The applicant also asked whether there was any evidence of improved customer service flowing from applying the SPOC policy. Ms Hale responded that she was not aware of any such document or analysis.
DOCUMENTS IN ISSUE
The documents retrieved by the respondent as falling within the access request are set out in the following table.[16]
[16] T22, 224-225.
Document Number Date Number of pages Description Decision on access Exemption/comments 1 11/08/2022 13 Executive brief regarding the applicant’s appointment to SPOC Released in part ss 22, 47F 2 12/08/2022 3 Email summarising Executive Brief Released in part s 47F 3 11/08/2022 3 Email summarising Executive Brief Released in part s 47F 4 15/08/2022 5 Minutes from the Operations Committee meeting dated 15 August 2022 Released in full with irrelevant material redacted s 22 5 04/01/2022 9 Operations Committee terms of reference Released in full 6 30/10/2020 5 SPOC Policy Released in full 7 19/09/2022 1 Internal email re SPOC arrangement for applicant Released in full 7.1 19/09/2022 1 Attachment to doc 7 – Email to Mr Singh notifying of SPOC arrangement Released in full 7.1.1 30/10/2020 - Attachment to doc 7.1 – SPOC policy (Duplicate of doc 6) Released in full
(Duplicate of doc 6)
7.1.2 12/09/2022 1 Attachment to doc 7.1 – SPOC letter Released in full 8 08/08/2022 3 Internal email re SPOC arrangement for Mr Singh Released in part ss 22, 47F 9 02/08/2022 1 Internal email re SPOC arrangement for Mr Singh Released in part s 47F 9.1 02/08/2022 13 Attachment to doc 9 – Draft executive brief Released in part ss 22, 47F 10 22/11/2022 1 Document created under s 17 of the FOI Act Released in full
The documents were redacted on the following basis:
Document Exemption claim T5 ss 22, 47F T7 ss 22, 47F T11 s 47F T14 s 47F T20, T22, T23 ss 22, 47F
The respondent’s rationale for the redactions are as follows:
(a) Documents T5, T7, T11, T14, T20, T22 and T23 all contain matters claimed to be exempt documents under s 47F of the FOI Act. The grounds for redaction are:
(i) the Respondent referred to the FOI Guidelines in interpreting s 47 of the FOI Act and in making its determination to redact the material;
(ii) material containing the name, position title and contact details of an employee of a private law firm seconded to the Respondent are such that the individual can be identified from this information in accordance with the definition of personal information in s 6 of the Privacy Act 1988 (Cth);
(iii) the release of the personal information of an individual contained in the materials would be unreasonable due to the detriment and stress that disclosure may cause to the individual, as they would not ordinarily expect that information relating to their usual duties would be made publicly available as a secondee and not a public servant; and
(iv) Disclosure is unlikely to advance the public interest in government transparency as the individual was not involved in the making of the decision to place the Respondent on a SPOC arrangement, and the following relevant public interest factor against disclosure in this case is that disclosure could reasonably be expected to prejudice an individual’s right to privacy.
(b) Documents T5, T7, T20, T22 and T23 also contain redactions to documents claimed to be irrelevant by the Respondent under s 22 of the FOI Act. The grounds of redaction are:
(i) material relating entirely to other SPOC candidates; and
(ii) material relating to unrelated matters considered at Operations Committee Meetings, being unrelated to SPOC matters and material referring to OAIC staff leave arrangements.
(c) The Respondent contends that the Redacted Documents provide the full reasoning of the decision to place the Respondent on a SPOC arrangement and the names of the decision makers in compliance with the Applicant’s FOI Request, without the conditionally exempt material being provided.
The applicant’s written submissions are contained in his reply and amended reply to the respondent’s SFIC dated 19 November 2023, his response to Ms Hale’s affidavit and amended SFIC dated 19 March 2024, and his email dated 2 January 2024.
There appear to be two areas of contention. The applicant contends that the identification of irrelevant material under section 22 depends upon the application of a public interest test, with a commensurate duty to consult with parties related to the supposedly irrelevant material. Secondly, he contends that the exclusion of the secondee’s identity and personal details was a misapplication of the public interest test in relation to the conditional exemption under section 47F.
In response, the respondent contends that:
(a) The Respondent properly considered whether disclosure of the Redacted Documents found to be conditionally exempt under s 47F of the FOI Act would be contrary to the public interest, balancing the factors favouring disclosure against the public interest against disclosure. The fact that the third party was on secondment from a private law firm was one of the factors weighing against disclosure;
(b) There is no basis for the Applicant to contend that the finding that the Redacted Documents were conditionally exempt was made by the Respondent under the pretext of privacy, and in breach of the objects of the FOI Act;
(c) There is no basis for the Applicant to contend that s 10(2) of the Australian Information Commissioner Act 2010 (Cth) prohibits a third party on secondment to the Respondent from a private law firm from making recommendations regarding whether to place the Applicant on a SPOC arrangement. Further, as noted in the Decision, although the individual was involved in preparing the Executive Brief and other documents used by the Operations Committee in considering whether to place the Applicant on a SPOC arrangement, the individual was not involved in making the Decision, so disclosure of personal information relating to the individual therefore does not advance the public interest in government transparency.
(d) There is no basis for the Applicant to contend that the SPOC arrangement was a deliberate attempt by the Respondent to circumvent transparency and accountability.
(e) The FOI Guidelines provide that the Respondent may have regard to any submissions made before deciding whether to give access to the document. In the present case, the Respondent had proper regard to the submissions of an individual in respect of the release of their personal information contained within the document. The decision that the Redacted Documents were conditionally exempt was not made on behalf of the individual, but by the Respondent based on the materials before it.
(f) The Respondent correctly found that information that was redacted in the Redacted Documents would be reasonably regarded as irrelevant under s 22 of the FOI Act. There is no basis for the Applicant to contend that it was legally unreasonable for the Respondent to make this finding without consultation from the affected third parties. The obligation for such consultation only arises where access to documents affecting personal privacy is considered as contrary to public interest or conditionally exempt, rather than irrelevant under s 22 of the FOI Act, as the Respondent found. The Decision identified the basis for that finding. There is no basis for the Applicant to contend that the Respondent was incapable of making a finding of irrelevance.
Relevance: section 22
Section 22 of the FOC Act provides for the disclosure of information ‘that would reasonably be regarded as irrelevant to the request for access’. The Tribunal has examined the redacted documents in original form. Five of the documents have been redacted by reference to section 22, namely, T5, T7, T20, T22 and T23.
·T5 Email from [Lawyer from the OAIC] to OAIC staff regarding FOI request.
·T7 Email from Rocelle Ago to Molly Cooke regarding FOI request.
·T20 Email from OAIC legal to other OAIC members regarding FOI request
·T22 Email from OAIC to Applicant attaching decision to give Applicant access to some documents and partial access to some documents, schedule and documents (with redactions as provided to Applicant)
·T23 Email from Applicant to OAIC with IC review application and attachments
In the present case, the applicant asked for the number of individuals or organisations subject to the SPOC policy.[17] The applicant was in fact provided with that number well before the hearing.[18]
[17] See para [6] above.
[18] Transcript, 27 March 2024, 20.
On 19 November 2023, the applicant made a further FOI request related to the respondent’s decision of 19 December 2023.[19] His application sought the following:
I refer to OAIC’s SPOC policy. In regard to this policy, I seek:
1. The date the policy came into effect.
2. Provide details including full names and addresses of all the applicants oaic put on SPOC since the inception of the policy till 15/11/23 inclusive.
3. Information including any analysis, feasibility studies or other material showing significant efficiencies for oaic and enhanced customer service to the individuals placed on the policy since its inception till 15/11/23 inclusive.
[19] Member’s file, item 3. FOIREQ/2300251
The respondent’s decision on that request is not before the Tribunal. The applicant does however rely on it as showing an alleged inconsistency in the processes applied by the respondent. He states:
8. In her SIFC dated 27 October 2023 the respondent claimed (inter alia) at [34] (f) that she is obliged to consult the affected third parties who are on her SPOC policy only where access to such information affects their privacy which is contrary to public interest in the respondent's view. The Tribunal will note that in her 19 December decision the respondent did not consult with any of the parties (whether individuals or other entities) to obtain their views on disclosure of their information. This again demonstrates that the respondent's 20 October contentions are false, misleading or both raising serious issues about the credibility of her contentions.[20]
[20] Members file, item 3; Covering email, 2 January 2024.
In responding the applicant’s claim, the respondent stated:
34 (f) The Respondent correctly found that information that was redacted in the Redacted Documents would be reasonably regarded as irrelevant under s 22 of the FOI Act. There is no basis for the Applicant to contend that it was legally unreasonable for the Respondent to make this finding without consultation from the affected third parties. The obligation for such consultation only arises where access to documents affecting personal privacy is considered as contrary to public interest or conditionally exempt, rather than irrelevant under s 22 of the FOI Act, as the Respondent found. The Decision identified the basis for that finding. There is no basis for the Applicant to contend that the Respondent was incapable of making a finding of irrelevance. [21]
[21] RSFIC, [34].
The Tribunal is satisfied that the position as expounded by the respondent in this passage is correct. There is no obligation on a decision-maker to consult an affected third party before deciding whether specific information falls within the scope of the request. A finding of irrelevance is essentially a matter of logic based on a proper examination of the scope of the request when considered in relation to the information sought.
Personal identifying information about other parties subject to the SPOC policy falls outside the scope of the request made in the present case. It is therefore irrelevant to the access request. I do not accept that those other entities subject to the SPOC policy ought to have been consulted by the respondent in deciding whether information about their identity (which had not been requested) was relevant to the access request. The applicant’s subsequent contention that, properly construed, his original request was a request for personal information about those individuals or organisation, rather than the bare number of such entities, is without merit.[22]
[22] Transcript, 27 March 2024, 52.
I am satisfied that the excised material is unrelated to the applicant’s requests. I find that the excised material may reasonably be regarded as irrelevant material within section 22.
Personal privacy conditional exemption: section 47F
In his original access request dated 4 October 2022, the applicant sought:
2. All information showing the deliberation and consideration by the committee to put me on SPOC.
3. Information regarding “other relevant matters” that the committee took into consideration in deciding to put me on SPOC.
These access claims are ostensibly wide enough to include the identity of non-public servants involved in making recommendations to the ultimate decision-makers.
On 7 November 2022, the secondee requested that their identity be withheld, stating:
If possible, I would like my full name exempted from release where it occurs on the documents at issue. This is because of the subject matter of the document at issue, being the executive brief and associated emails regarding the decision to place Mr Andrew Singh on SPOC, and the nature of Andrew Singh’s previous interactions with the OAIC, where he appears to engage in sustained harassment of OAIC workers, such as through engaging in abusive language and making defamatory allegations etc about OAIC workers.
While noting that my name has previously been released in FOI requests at the OAIC in the context of my processing of FOI requests, it appears to me that the circumstances in this instance justifies redaction. This is because it appears reasonable to believe that Mr Singh may take particular umbrage with the workers who assisted with the executive brief recommending he be placed on SPOC, thereby risking exposing me to harassment and similar conduct, as he has engaged in with other OAIC workers in the past. Similarly, I would argue there is no public interest justification for releasing my name in the circumstances. It appears to me that my personal information is only incidental to the subject matter of the documents at issue, and also that Mr Singh can be provided the full reasoning of the decision to place him on SPOC without my personal details being included. While noting I am not a public servant, I would argue that part 6.156 of the FOI Guidelines is relevant here, where it notes: “…where an individual has a propensity to pursue matters obsessively and there is no need for them to contact a particular public servant in the future, disclosure of the public servant’s name may be unreasonable...[23]
[23] T14, 129. Paragraph 6.156 of the FOI Guidelines (v 1.3) previously provided that where an individual has a propensity to pursue matters obsessively and where there is no need for them to contact a particular public servant in the future, disclosure of the public servant’s name may be unreasonable. The reference to obsessive claimants has been deleted from the 2024 revision of the Guidelines.
The applicant is indeed a prodigious litigant. In the 12 months preceding 11 August 2022, he had 54 matters open with the Office of the Australian Information Commissioner (OAIC), of which 34 remained active.[24] In six of those matters he acted as a representative. The matters broadly traverse privacy complaints about government departments, private entities and the respondent, service complaints about the respondent, general enquiries, and litigation matters. He currently has several matters in the Tribunal.[25]
[24] T5, 35.
[25] T5, 44.
At the hearing, the applicant said that he wanted the person’s name so that he could initiate legal proceedings for defamation. He said that the allegations made against him were:
totally false and it’s very upsetting that that sort of allegation has been made. Constant bullying and harassment. If a public servant would have made that allegation, the sanction would be disciplinary sanctions which would be a quite severe sanction, taking into account somebody’s subsistence is involved. But here a private person has made serious allegations against me. Serious allegations against me, and which are defamatory – which are very defamatory. It gives me indication that whether I’m worthy of coming before this tribunal as an applicant or as applicant’s representative, to argue a case. It diminishes my credibility.[26]
[26] Transcript, 27 March 2024, 64.
Law enforcement and public safety: section 37
I digress to consider the relevance of section 37. Under paragraph 37(1)(c) of the FOI Act, a document may be exempt where disclosure would, or could reasonably be expected to, endanger the life or physical safety of any person.[27] Paragraph 5.17 of the Guidelines provides that:
The use of the word ‘could’ in this qualification is less stringent than ‘would’ and requires analysis of the reasonable expectation rather than certainty of an event, effect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future.[28]
[27] FOI Act s 37(1)(c).
[28] Citing Re Maksimovic and Australian Customs Service [2009] AATA 28, at [28].
The Guidelines state:
5.121 Under s 37(1)(c) a document is exempt if its disclosure would, or could reasonably be expected to, make a person a potential target of violence by another individual or group. That is, whether release of the documents could be expected to create the risk, not whether the documents reflect an existing credible threat. This exemption requires a reasonable apprehension of danger which will turn on the facts of each particular case. For example, the disclosure of the name of an officer connected with an investigation into threats made by the FOI applicant will not be sufficient. A reasonable apprehension does not mean the risk has to be substantial, but evidence is necessary. For instance, intemperate language and previous bad behaviour, without more, does not necessarily support a reasonable apprehension.
5.122 Some illustrations of the application of the exemption in the Commonwealth, Queensland and Victoria include the following:
• If release of the document might lead to abusive behavior in the form of insulting and offensive communications this will not be enough to make the document exempt. However, if the applicant has a documented history of abusing and threatening departmental staff including threats of serious physical harm this may be sufficient to make the document exempt…
• The Queensland Information Commissioner, in considering a similar provision in Queensland’s former Freedom of Information Act 1992, found that a threat of litigation against a person is not harassment which endangers a person’s life or physical safety…[29]
[29] Re Murphy and Queensland Treasury [1995] QICmr 23; (1995) 2 QAR 744
As reflected in the Guidelines, a threat of litigation is not of itself harassment which endangers a person’s life or physical safety. In terms of threatening behaviour, I note the reference to ‘sustained harassment’ in the secondee’s email of 7 November 2022. However, the respondent has not relied upon section 37 in these proceedings. Given my conclusion regarding section 47F, it is unnecessary to form a concluded view as to whether the nature of the applicant’s dealings with the respondent and its staff engages section 37. I make no findings on this issue.
CONSIDERATION
The respondent relies on section 47F which provides for conditional exemption of personal information where the release of that information is not in the public interest. A document is conditionally exempt if its disclosure would involve the unreasonable disclosure of personal information about any person (including a deceased person). Personal information can include a person’s name, address, and telephone number.[30]
[30] See FOI Guidelines [6.125]; citing Re Green and Australian and Overseas Telecommunications Corporation [1992] AATA 252 (1992) 28 ALD 655.
The application of conditional exemptions identified in Division 3 of the FOI Act involve a 'two-step' process. The first question is whether the access to the material within the contested documents would involve the unreasonable disclosure of personal information.
Having looked at the unredacted documents, I am satisfied that the redacted material including the name, position and contact details of the secondee is personal information for the purposes of the FOI Act.
I note the various factors identified in subsection 47F(2) to which the Tribunal must have regard in determining whether the disclosure of the document would involve the unreasonable disclosure of personal information.
(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.
It cannot be said that the personal information sought (that is, identifying information about the secondee) is well known, or that the secondee is by name known to be associated with the SPOC recommendation process. Nor would this information be available from publicly accessible sources. Moreover, I note that the secondee is no longer engaged to assist the respondent.
I am satisfied that the disclosure of the identity of the secondee would constitute an unreasonable disclosure of public information. I agree with the respondent’s view that the material identified within the document is conditionally exempt.
The second stage involves the public interest. As I have determined that the materials in question are conditionally exempt, I must apply the public interest test. Subsection 11A(5) of the FOI Act provides that when a document is conditionally exempt under an exemption in Division 3 of Part IV of the FOI Act, access must be given to the document unless, in the circumstances, giving access would, on balance, be contrary to the public interest.[31]
[31] See FOI Guidelines, [6.2].
In working out whether providing access to a conditionally exempt document would, on balance, be contrary to the public interest, the Tribunal should consider the following factors identified in subsection 11B:
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.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b) access to the document could result in any person misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Guidelines
(5) In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.
I am satisfied that none of the factors referred to in subsection 11B(4) have been taken into account.
I am satisfied, with reference to subsection 11B(3), that allowing reference to the document in full would not promote the objects of this Act (including all the matters set out in sections 3 and 3A); inform debate on a matter of public importance; (c) promote effective oversight of public expenditure; or (d) allow a person to access his or her own personal information.
None of these factors are applicable in the present circumstances.
The respondent referred to Cox v Secretary, Department of Agriculture, Water and the Environment and (Freedom of information) [2023] AATA 375 where the Tribunal found that it was not in the public interest to release private information about junior members of the public service not directly involved in relevant decision-making. The Tribunal found, having regard to the fact that non-SES staff names were not well known or publicly available, that the disclosure of non-SES staff names would be an unreasonable disclosure of personal information. It therefore followed that access to the names of non-SES staff would, on balance, be contrary to the public interest. The applicant distinguishes this decision on the ground that the subject of the present inquiry is not a member of the public service but an employee of a law firm contracted to provide legal services to the respondent.
However, I am satisfied that Cox and the present case share an important feature, namely, that the subject whose personal information are sought played a very limited role in the relevant decision-making. Moreover, when consulted by the respondent, the secondee provided understandable reasons for non-disclosure of their personal information. Those reasons go beyond mere embarrassment or inconvenience and relate to the fear of ongoing harassment and anxiety engendered in the secondee.
The applicant’s written communications to the OAIC are often cast in pejorative terms, describing departmental officials as ‘corrupt’, ‘failed lawyers’, ‘incompetent’, ‘village idiots’, or the ‘filth that pervades the department’. Their decisions or submissions are variously described as ‘hogwash’, ‘bollocks’ or ‘utter garbage’. The applicant has been cautioned by the Tribunal in person about the use of insulting and hostile language.[32]
[32] Telephone Directions Hearing, 31 January 2024, Boto and Commonwealth Ombudsman (2023/1321). A file note records “SM Fairall put A’s rep on notice re his communications with the Respondent and the language that he uses.”
The ideal of cordiality in legal and commercial matters is perhaps unattainable, and the perception of those who give and those who receive such insults is invariably very different, as amply demonstrated by recent examples of the abuse of players in various sporting codes. There is a sometimes a fine line between language that is insulting and offensive, and language that is threatening or abusive. In his dealings with the respondent and its officers, I consider that the applicant steps well over that line. In my opinion, his submissions contain far too many pejorative and inflammatory comments. Many of the phrases and expressions used by the applicant in his communications with the respondent contain a threatening edge. Under these circumstances, there is no public interest in the release of personal information, given the degree of hostility and abuse shown by the applicant towards the respondent and its officers.
I am satisfied that the relevant documents are conditionally exempt under section 47F; and that providing access to those documents would, on balance, be contrary to the public interest.
It is perhaps unnecessary to stress that this decision is not based on the notion that external consultants or secondees are beyond the reach of FOI. The disclosure of personal information about such individuals may well be justified in the public interest.
This is a special case, distinguished by the degree of enmity displayed by the applicant towards the respondent and its officers.
I am satisfied that the correct and preferable decision is to affirm the decision under review.
DECISION
The decision of the respondent made on 19 December 2023 is affirmed.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
...................................[sgd].....................................
Associate
Dated: 27 September 2024
Date(s) of hearing: 20 March 2024 Applicant: In person Solicitors for the Respondent: Ms H Sims, Holding Redlich
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