Sobczuk and Department of Health and Aged Care - [2002] AATA 338

DECISION AND REASONS FOR DECISION [2002] AATA 338

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/359, 798

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PEDRO SOBCZUK
  Applicant
           And    DEPARTMENT OF HEALTH AND AGED CARE
  Respondent

DECISION

Tribunal Mr K L Beddoe, Senior Member

Date13 May 2002
PlaceBrisbane

Decision The Tribunal decides: (a) the decisions under review are set aside; and (b) the matters are remitted to the respondent to give effect to its concessions and the reasons for decision herein.

(Sgd) K L Beddoe
Senior Member
Decision No: 338/2002
CATCHWORDS
FREEDOM OF INFORMATION – access to documents – personal information – business information – non-existent documents
Freedom of Information Act 1983 s 24A, 41, 43

REASONS FOR DECISION

13 May 2002 Mr K L Beddoe, Senior Member

The applicant seeks review of two deemed refusals, by the respondent, to grant access to documents under the Freedom of Information Act (1983) ("the Act").
In application Q1999/359 the applicant had applied to the respondent by letter dated 20 October 1998 seeking access to documents described as follows:
(a)"All documents containing my personal information held by your office since my dealings with your office including my dealings with your staff member Jean Thornton since 1995 until now"; and
(b)"All the documents containing my personal information about your dealing with the Carnarvon Aboriginal Medical Services Corporation and the ATSIC Registrar."
In application Q1999/798 the applicant had made a request for access to documents which is dated 19 May 1999 and particularised and broadened the earlier request so as to request access to the following documents:
(a)"All information reports about my dealings with Jean Thornton.".
(b)"All documents of the action taken by your office to recover the funds misappropriated by the director and her family (?) Executive Committee."
(c)"Defamation letter sent to Susan Oakley by your Office."
(d)"All documentation regarding your acceptance of misleading financial statements presented by the director and her family where an account was created and is called Recoveries and Unexplained Cheques."
(e)"All documentation regarding the Outcome, recoveries, action taken by your office described in my letter dated 20 July 1998."
(f)"All documentation regarding the assets purchased with Commonwealth funds and given away to family run organisations and your action to recover them."
(g)"All information regarding funds used not for Aboriginal health but for family businesses."

In my view the respondent was correct to treat this request as a new application for access to documents. The respondent made a limited grant of access claiming exemption for certain documents and exemptions in relation to parts of documents to which access had been granted.
At the hearing, the applicant conducted his own case and Mr Belcher appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered by the respondent and marked as exhibits. Oral evidence was given by Mr Pyke, a senior project officer in the respondent department and by the applicant.
The hearing was adjourned so as to allow the Tribunal to read the relevant files of the respondent which were subsequently lodged in the Tribunal. Those files are identified in the affidavit of Mr Pyke (Exhibit B) as follows:
(a)File No WA 95/0864
(b)File No CO 95/1683
(c)File No WA 96/1068
(d)File No WA 96/1113
(e)File No CA 96/1429
(f)File No CO 96/1448

The Tribunal has taken a considerable period of time to read those files but found no relevant documents that had not been previously brought to attention by the respondent.

The applicant is seeking access, in particular, to documents relevant to his allegations of financial misappropriation at the Carnarvon Aboriginal Medical Service. In essence he has adopted the role of a "whistleblower" but so far the results of his allegations have resulted in deprivation of his own employment and his liberty.
He seeks access to documents and deleted portions of documents relevant to investigation of those allegations.
Exhibit A is a confidential affidavit of documents by Mr Pyke which exhibits the relevant documents without deletions. An order under section 35(2) of the Administrative Appeals Tribunal Act 1975, applies to the affidavit.
Exhibit B is a further affidavit by Mr Pyke which exhibits the documents as released to the applicant.
At the hearing I was told that further documents had been released to the applicant (Exhibit C). It is therefore appropriate that I confine my decision to those documents and deleted portions of documents still in dispute.
Document D10 is correspondence to the respondent and ATSIC relating to proceedings in the District Court, Perth. The respondent has released the text of the two letters except details identifying the author. Exemption is claimed under sections 43(1)(c)(ii) of the Act. In so far as the claim under section 41 is concerned I doubt that the name and address of an informant is correctly characterised as personal information about any person. However the author is a person who has supplied information to the Commonwealth and the disclosure is of a kind coming within paragraph 43(1)(c)(ii). It is reasonable to conclude that disclosure of information about the informant could reasonably be expected to prejudice the future supply of information to the Commonwealth, however likely or unlikely any future supply may be.
I will affirm the respondent's decision in relation to Document D10.
Document D11 is an internal working document prepared by an officer of the respondent arising out of D10. Identification of the informant has been deleted and details relating to another agency have been deleted as being not relevant to the claim. I am satisfied that paragraph 43(1)(c)(ii) also applies, in relation to details of the informant to exempt from access that part of the document.
I will affirm the respondent's decision in relation to Document D11.
In relation to Document D24 it is a copy of two emails which appear on one sheet with two attachments. One attachment (D25) being a file note relating to a complaint by the applicant has been released subject to a deletion which appears to have no basis and that is conceded by the respondent. The other document is clearly an internal working document being internal advice as to proposed advice to the applicant. As such it is part of the deliberative processes of the respondent. On balance I am satisfied that it would be contrary to the public interest to release the draft document and the portion of D24 discussing the draft.
Document C4 is a copy of a letter by the Carnarvon Medical Service Aboriginal Corporation. The respondent released this document subject to extensive deletions. Before the Tribunal the respondent elected to make no submissions about the document. I have considered the document and am satisfied that it is relevant to the applicant's claim and that as the respondent no longer claims exemption it should be released in its entirety.
Document C4 is to be released, in its entirely, to the applicant.
Document C6 is a copy of another letter by the Carnarvon Medical Service Aboriginal Corporation dated 10 September 1997 which has been released, subject to deletions. Those deletions include handwritten annotations on the copy letter. The respondent now concedes that part of the deleted material should be released but maintains that the first paragraph and the handwritten annotation are not relevant to the applicant's claim. After considering the full document, I am satisfied that the first paragraph and the handwritten annotation are irrelevant to the claim. The rest of the document should be released to the applicant there being no claim for exemption.
Document C6 is to be released except for the first paragraph and the handwritten notation.
Document C8 is a copy of a further letter by the Carnarvon Aboriginal Medical Service dated 4 November 1997 and addressed to the respondent. The letter deals with a number of disparate matters only one of which is relevant to the applicant's claim. The respondent twice deleted, from the released portion of the letter, the name of a solicitor but does not now seek to justify that deletion. I agree that the first five paragraphs referring to restitution of funds by the applicant are relevant to the claim and should be released in full. I also agree that the remaining paragraphs of the letter are irrelevant to the claim by the applicant. The signature block should be released.
Document C8 is to be released only as to the letterhead, address and salutation, first five paragraphs and signature block.
The applicant has been granted access to Documents C9 & C10 only in so far as they are relevant to his claim. After considering the whole of each document, I am satisfied that the balance of the documents is not relevant.
Documents C11 and C12 have now been released in full.
In relation to the applicant's submission that Document D3 should include another letter I have personally searched the respondent's files but have not found, nor any suggestion of, another letter. I cannot be satisfied, on the material before me, that there is such a letter and I so find.
In application Q1999/798 the applicant made specific requests for access to documents (T6). The respondent says there are no such documents and relies on section 24A in so far as the claim is not satisfied by the release of documents to the applicant. In particular the respondent says that the alleged action to recover funds from the directors of the Carnarvon Aboriginal Medical Service Corporation has no basis in fact and therefore there are no documents relating to such an action. My search of the respondent's files satisfies me, on the balance of probabilities that this is correct – the alleged documents do not exist.
In so far as the applicant seeks access to documents relating to "7 Oaks Corporation" the respondent has previously granted access to any documents held by the respondent and asserts that the respondent has no interest in the 7 Oaks Corporation (Exhibit B para 19).
In the result the applicant has succeeded in obtaining access to a substantial number of documents following the deemed refusal and in the course of proceedings in this Tribunal. Most of those documents are to be found in Exhibits B, C and D. Given the further concessions during the hearing it is appropriate that the decisions under review are set aside and the matters be remitted to the respondent with a direction to give formal effect to the concessions and these reasons for decision.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  3 April 2000
Date of Decision  13 May 2002
Applicant  In Person
Respondent  Mr Belcher