Sobczuk and Registrar of Aboriginal Corporations

DECISION AND REASONS FOR DECISION [2002] AATA 515

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/766

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PEDRO SOBCZUK
  Applicant
           And    REGISTRAR OF ABORIGINAL CORPORATIONS
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date27 June 2002
PlaceBrisbane

Decision The Tribunal decides: (a) the deemed refusal under review is set aside; and (b) the matter is remitted to the respondent to give effect to the Tribunal's reasons for decision.

(Sgd) K L Beddoe
Senior Member

Decision No: 515/2002
CATCHWORDS
FREEDOM OF INFORMATION – access to documents and reports – personal information – business information – non-existent documents
Freedom of Information Act 1983 s 11, 22, 41, 43, 58
Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 at 118

REASONS FOR DECISION

27 June 2002 Mr K L Beddoe (Senior Member)

The applicant sought access under the Freedom of Information Act 1983 ("the Act") to documents relating to himself held by the respondent in respect to the applicant's employment with the Carnarvon Medical Service Aboriginal Corporation ("the Corporation").
Access was requested in specific terms as follows:
(a)       copy of the allegations by the Corporation in 1995/1996;
(b)copy of allegations made by ATSIC against the applicant to CIB, Carnarvon;
(c)       copy of all my contacts with ATSIC office;
(d)       copy of all evidence about stealing of the applicant's air fares;
(e)       copies of records about the applicant held by the respondent; and
(f)        copy of the 1996 independent report conducted on the Corporation.
The applicant also sought access to a report about the affairs of the Corporation from the Commonwealth Ombudsman. The Ombudsman transferred the request to the respondent.
By letter dated 6 May 1999 addressed to the Australian Government Solicitor, the applicant particularised and amplified the original request for access (T5). The Government Solicitor formally transferred that request to the respondent (T6).
The respondent proposed to grant access to documents held which were relevant to the applicant's claim. This was opposed in part by the Corporation (T10, T13 and T15).
On 20 January 2000, the Corporation lodged an application for review of the respondent's decision to grant access to the applicant (Q2000/74). On 28 June 2000 solicitors acting for the corporation, withdrew the application for review.
At the hearing the applicant represented himself and Mr Boughton represented the respondent. Evidence was given by an officer of the respondent. Documents tendered to the Tribunal were marked as exhibits. Orders made pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 apply to exhibits 3, 5 and 6.
The applicant only attended the initial part of the hearing on the first day and was not present when oral evidence of Mr Glynn was taken. No explanation was given for the absence but it is understood that the applicant was unwell. The Tribunal arranged for the applicant to be sent a copy of the transcript of evidence with a right of cross-examination reserved to the applicant. The hearing resumed on 12 and 13 September 2000 for further evidence and was adjourned for submissions from the parties to be made in writing. The applicant lodged written submissions on 20 October 2000. The respondent also lodged written submissions.
The evidence of John Joseph Glynn is that he holds the position of Director Information and Training in the office of the Registrar of Aboriginal Corporations ("the respondent") and is acquainted with the office procedures in that office. He described the system of filing in the office in relation to each Aboriginal Corporation incorporated under the Aboriginal Councils and Associations Act 1976. He said there are approximately 2700 such incorporated bodies.
My Glynn said that each file in relation to a corporation comprised a documents part, being documents required to be lodged by the Corporation in accordance with the Act. That section of the file is on the public record. The other part of the file is a correspondence file containing copies of correspondence relating to the Corporation. There may be sub-parts containing special documents such as a section 60 report file where there has been an examination of the corporation. These parts containing special documents are kept apart from the documents and correspondence files. All files are kept in general chronological order in each part of the file.
In the case of the Corporation there is a documents file and a correspondence file with seven parts. The Registrar holds the following separate folders from the correspondence file:
(a) a set of copy documents prepared for the section 60 examiner;
(b)terms of reference of the section 60 examination together with tender details etc;
(c)a project file relating to the selection of an examiner to carry out the section 60 examination.
The documents file is on the public record and within the terms of section 12(1)(b) of the Act.
Because of the objections by the Corporation to release certain documents albeit that the objections were not pursued before this Tribunal, the respondent asked the Tribunal to direct access to all documents contained in Annexure A to the section 37 statement. There are 467 documents covered by Annexure A.
Documents listed in Annexure B of the section 37 statement are the subject of limited claims for exemption in respect of personal information about others. Those claims mostly emanated from the objections taken by the Corporation. The nature of the documents is disclosed in Annexure B with deletions as to names where the exemption claim is in dispute.
Annexure C lists four documents. Exemption is claimed in respect of those documents which are essentially summarised as two copies of a job application by a person employed by the Corporation and which in my view is simply irrelevant to the applicant's claim. In any event a claim for exemption under section 41 of the Act would succeed because the document is essentially personal information of a third party.
The other documents are letters addressed to government agencies by a third party which are not relevant to the applicant's claim. I need not consider whether an exemption would apply if the documents were relevant.
I do not propose giving any further consideration to the Annexure C documents because they are not within the ambit of the applicant's claim for access.
At the hearing the respondent disclosed further documents, copies of which are in Exhibit 6. These are documents found on the Australian Government Solicitor's file but not contained on the respondents correspondence file.
In his evidence Mr Glynn described the searches undertaken to comply with the applicant's claim for access to documents. That evidence satisfied me that the respondent has conducted a reasonable search for the relevant documents. I am also satisfied that the fact of documents being in the possession of the Australian Government Solicitor is not a matter which reflects upon the adequacy of Mr Glynn's search. I am also satisfied that, in fact, those documents are irrelevant to the applicant's claim because they are not documents within the custody and control of the respondent. In fact some are further copies of documents held by the respondent and discussed. In so far as there may be a claim for legal professional privilege on those documents, the respondent has waived the privilege.
I am satisfied on the basis of Mr Glynn's evidence that it is the practice of the respondent to deal with complaints about Aboriginal corporations on the basis that the informant's privacy is maintained. I accept that the effect of the policy is that the source of complaints caused to be investigated by the respondent is treated as being in confidence and the complaints are received on this basis by the respondent.
Receipt of such complaints may result in the respondent referring a matter to the police or more likely result in a section 60 examination of the particular corporation. According to Mr Glynn there may be up to 60 such examinations conducted in a year. Such an examination may arise from a complaint, an examination of the Corporation's annual return or its failure to lodge the return and reports by auditors. Most examinations are caused by complaints to the respondent. Those complainants approach the respondent on the basis that their complaint will be treated in confidence, at least as to the source of the complaint. If that were not the case, it is expected that complaints would reduce because of the fear of intimidation and harassment at a local level. If such a drying up of information were to occur, the respondent would need additional resources for a regular examination of corporations.
Exhibits 4 and 5 evidence such complaints. Exhibit 4 contains copies of documents relating to complaints about the Corporation with information deleted so as to not identify the informant. Exhibit 5, which is the subject of a section 35(2) order, exhibits the same documents without deletions. It is not apparent to me as to why any of these documents are relevant to the applicant's claim. That issue was not addressed before me.
In so far as the applicant asserted that certain minutes of meetings had not been released, Mr Glynn said that they were not released because the respondent did not have them. The section 60 report has been released together with the copies of minutes attached to the report. The copies of minutes sought were not attached to that report.
The applicant also cross-examined Robert Graeme Powell, an accountant employed by the respondent. While Mr Powell was questioned by the applicant on a number of specific matters his evidence did not reveal documents which had not been disclosed except diary entries in April and June 1996.
The respondent also called Susan Margaret Oakley who was an employee of this Corporation. She was questioned about a number of matters vaguely relevant to the issues before the Tribunal. She said that minutes of meetings of the Corporation had been supplied to the Section 60 examiner and to the respondent and that no copy of minutes was hidden.
Richard John Oakley testified that sometimes he took minutes and sometimes he did not. He said he had no minutes of meeting in his custody.
Noureddine Boulafs, a former Registrar, said that any statutory declarations would be on file, but had no knowledge of the specific documents. He was unable to recall specific documents but asserted, as a general proposition, that all documents would be on the file.
The Applicant's Submissions
The Curriculum Vitae of Jennifer-Jane Walsh (Exhibit 3) is a document which should be released as a matter of public interest because Ms Walsh was employed by the corporation and she provided misleading information, fabricated documents and co-operated with different government departments and the WA Police. (I should add that there is absolutely no evidence before the Tribunal that justified this submission).
There has been a failure on the respondent's part to find all relevant documents. Certain documents sent to Mr Bob Powell at the respondent's office have not bee released.
The applicant made submissions about documents which, by their nature and if they exist, would be on the files of the corporation rather than the respondent in the ordinary course of events. The applicant also asserted that certain documents had been sent to Mr Powell but had not been disclosed.
There is a strong public interest in the affairs of the Corporation being fully disclosed. The respondent has covered up matters to avoid public disclosure of the affairs of the Corporation. Much of the applicant's written submissions reiterated complaints he has arising from his employment at CAMSC, but are not relevant to the issues before this Tribunal because the submissions do not relate to the applicant's claim for access to documents under the Act.
The Respondent's Submissions
As to exhibit 6 documents, they are documents from the file of the Australian Government Solicitor and are not relevant to the claim. The documents and communications relate to instructions received by the Solicitor to advise, or prepare draft documents for the respondent in relation to various matters relating to the Corporation.
A document does not become relevant to a claim for access merely because there maybe a public interest consideration. Alternatively there are public interest considerations pointing to non-disclosure of a solicitor's file relating to work performed for the respondent and there is a general public interest in retaining solicitor/client confidentiality. There is no evidence of the cover-up alleged by the applicant.
The respondent says that the following documents are subject to claims for exemption, but may also be outside the scope of the application:
(a)Exhibit 5 is the document in Exhibit 4 without deletions evidenced in Exhibit 4. The documents relate to allegations made by a third party against the Corporation in 1998 and the investigation of those allegations. The documents are also identified as documents 2 to 7 in Annexure B of the respondent's section 37 statement.
(b)Exhibit 5 also includes copies of two documents listed in Annexure C of the section 37 statement as documents being letters of complaint addressed to the Health Insurance Commission and others.
(c)Exhibit 3 (also documents 1 & 2 in Annexure C) is the curriculum vitae of an individual employed by the Corporation. The document is made up of personal information within the terms of section 41(1) of the Act (c/f Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 at 118). The information in the document is personal information not relevant to the workings of government.
In relation to Exhibit 6 documents being the documents in the custody of the Australian Government Solicitor, the respondent says these documents are not relevant to the claim for access. The respondent has waived its legal professional privilege against inspection in relation to the document but says that the documents are not relevant to the claim.
Consideration
Section 11 of the Act provides that subject to the Act, every person has a legally enforceable right to obtain access to documents of an agency other than exempt documents. A person's right to seek access is not affected by any reasons the person has given for seeking access or the agency's belief as to what are the applicant's reasons for seeking access.
Section 58(1) of the Act confers the power to review decisions on this Tribunal and subsection (2) provides that where in proceedings under the Act it is established that a document is an exempt document, the Tribunal does not have the power to decide that access may be granted to the document so far as it contains exempt matter.
Paragraph 40(1)(d) of the Act provides that a document is an exempt document if its disclosure under the Act would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of an agency. The paragraph is subjected to sub-section 40(2) which says that the section does not apply to exempt a document in respect of matter in the document, the disclosure of which would, on balance, be in the public interest.
In contrast section 43 of the Act exempts a document if disclosure could reasonably be expected to prejudice the future supply of information to the agency. There is no overriding public interest test in section 43. It is likely to be accepted by the courts that there is an inherent public interest test in determining the reasonable expectation of prejudice test in the section. It may well be the case that a strong public interest in disclosure would override any prejudice as to the future supply of information to the agency. Because no general public interest has been made out in these proceedings, I propose to apply paragraph 40(1)(d) to determine the claim. It is likely that a claim under section 43 could also succeed but I refrain from deciding that issue.
Section 41 of the Act, so far as is relevant, provides for a document to be an exempt document if disclosure of the document would involve the unreasonable disclosure of personal information about any person.
"Personal Information" is defined in section 4 to mean information or an opinion (including information forming part of a data base), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion.
I turn now to the documents which are the subject of claims for exemption.
I refer to the documents in Exhibit 5 being documents 2 to 7 in Annexure B. I am satisfied, after considering each of the documents, that they are documents containing information and or complaints about the corporation on matters relevant to the respondent. I should add that the matters, the subject of information and complaint, do not relate to the applicant. Given the nature of the documents I am satisfied that the respondent's acceptance that the documents can be released, subject to matters identifying the informant/complainant being deleted, is the correct position in respect of those documents. The edited portions are exempt within the terms of section 40 and 43. There is no overriding public interest in disclosure identifying information.
Release in an edited form as proposed by the respondent could be misleading to the applicant so that I have to consider whether section 22 operates to allow the deletions proposed and release of the edited documents. I think it does, so long as the applicant understands that the deleted proportions do not refer to him but refer to persons and events not relevant to the applicant.
In relation to Exhibit 6, the respondent correctly draws attention to a short note in hand written notes of a discussion by an officer of the Australian Government Solicitor's Office and an officer of the Aboriginal Legal Service. There is a passing reference to the applicant which is quite inconsequential but nevertheless must be relevant to his application. I agree that the documents in Exhibit 6 are otherwise irrelevant. The document dated 25 June 1996 would need to be edited to delete all words other than the single sentence referring to the applicant. I have come to the view that this can be done on the basis that the applicant will not be misled if he is assured that the rest of the document does not discuss him or his affairs and irrelevant to his claim.
Exhibit 3 and Documents 1 and 2 in Annexure C are copies of the curriculum vitae of a person employed by the Corporation. The whole document in its three forms is clearly personal information relating to that person and within the terms of section 41.
The remaining two documents in Exhibit 5 being documents 3 and 4 described in Annexure C to the section 37 statement and being letters of complaint addressed to the Health Insurance Commission and others. Those documents are probably not relevant to the applicant's claim but in any event I agree with the respondent's submission that the documents are also exempt under the Act. The respondent submits that the documents are exempt under sections 37(1)(b), 40(1)(d) or 41. I doubt the claim under section 41 but I am satisfied that section 40(1)(d) would apply because disclosure of such documents could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the respondent's role as a supervising authority would be curtailed if such documents were accessible to the public. The documents do not refer to the applicant.

The deemed refusal under review will be set aside and the matter remitted to the respondent to give effect to these reasons for decision.

I certify that the 48 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  29 June, 12 & 13 September 2000
Date of Decision  27 June 2002
Applicant  In person
For the Respondent                 Mr Boughton

[2002] AATA 515

27 June 2002

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Access to Information

Public Interest

Exempt Documents

Personal Information

Freedom of Information Act