"SRAD" and Refugee Review Tribunal

[2005] AATA 238

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 238

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/926

GENERAL ADMINISTRATIVE DIVISION		)
Re		“SRAD”   Applicant

And REFUGEE REVIEW TRIBUNAL

Respondent

DECISION

Tribunal Senior Member M D Allen

Date21 March 2005

PlaceSydney

Decision The decision under review is affirmed.

(Sgd) M D Allen
  .............................
   Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – Application for Refugee Status – Applicant seeks access to documents provided to Respondent by third party – documents affect personal privacy – material obtained in confidence – decision under review affirmed.

Freedom of Information Act 1982 – ss 41, 45

Freedom of Information Amendment Act 1991

Re Dwyer and Department of Finance & Ors (1985) 8 ALD 474

Re Windsor and Australian Postal Corporation (1991) 22 ALD 401

Ward v Centrelink [2005] FCA 73
Re Kamminga and Australian National University (1992) 26 ALD 585
Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) (1987) 14 FCR 434.

REASONS FOR DECISION

21 March 2005   Senior Member M D Allen

1.     The Applicant and her family arrived in Australia from Eastern Europe and made a claim for refugee status.  There is ongoing litigation in respect of that claim.

2.     The documents sought by the Applicant are two letters forwarded to the Respondent by a third party and file notes of discussions between an officer of the Respondent and the third party relating to the possible release of a document.

3. The correspondence and file notes are annexed to the affidavit of Ms Maurer in these proceedings, which affidavit was marked as a confidential exhibit. I have perused the said documents for the purpose of making my decision in this matter. The documents are more particularly described at document T6 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

4.     At the outset, it may be stated that if the said documents did contain any material which related to the question of whether the Applicant or any member of her family group was or was not entitled to refugee status then the relevant material would have to be placed before the Applicant or particular member of her family for comment.

5.     The Applicant claims to know the identity of the third party.  Whether this assumption by the Applicant is correct or not is immaterial.  Disclosure under the FOI Act is an unrestricted disclosure to the public at large (see Re Dwyer and Department of Finance & Ors (1985) 8 ALD 474 at 482) and there can be no restraints upon the use of the disclosed material unlike material obtained by discovery in civil litigation (see Re Windsor and Australian Postal Corporation (1991) 22 ALD 401 at 405).

6. The Respondent has claimed that the documents in question are exempt from disclosure as being documents affecting personal privacy pursuant to s41 FOI Act and as being documents containing material obtained in confidence pursuant to s 45 FOI Act.

7. S 41 FOI Act states inter alia:

“A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person …”

Whereas s 4 FOI Act defines “personal information” as:

“Personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”

S 45 FOI Act states inter alia:

“A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency of the Commonwealth), for breach of confidence.”

8.     Subsection 41 (1) FOI Act was recently considered by Mansfield J in Ward v Centrelink [2005] FCA 73. Commencing at paragraph 27 His Honour said:

“The Full Court of this Court dealt with the interpretation of s 41(1) of the FOI Act in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 (Colakovski). I note that that decision predates the amendments to ss 4 and 41 of the FOI Act in the Freedom of Information Amendment Act 1991 (Cth). In summation, Lockhart J (with whom Jenkinson and Heerey JJ agreed) stated at 438:

‘This is not an appropriate case in which to examine definitively the circumstances that may constitute “the unreasonable disclosure of information” relating to a person’s “personal affairs” because the argument before us proceeded on the limited basis outlined previously.  It is sufficient for present purposes to say that “every person” has a “legally enforceable right to obtain access” to documents under the FOI Act: s 11.  There is no requirement that the person seeking access have a proprietary or any other interest in documents or the information contained in them.  The object of the Act, as expressed by s 3, is to give the “Australian community” the right of access to information in the possession of the Australian Government.  What is “unreasonable” disclosure of information for purposes of s 41(1) must have as its core public interest considerations.  The exemptions necessary for the protection of “personal affairs” (s 41) and “business or professional affairs” s 43) are themselves, in my opinion, public interest considerations.  That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents.  The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided the other conditions mentioned in sections 41 and 43 are satisfied.  An examination of the other provisions of Part IV of the Act concerning exempt documents confirms this approach.’

Heerey J, at 441, added the following comments with respect the issue of ‘unreasonableness’:

‘Turning to the criterion of unreasonableness prescribed by the s 41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public.  I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would inure to a person by reason of the disclosure.  Such matters, if present, would doubtless weigh in favour of exclusion.  But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.’

In Kristoffersen v Department of Employment Workplace Relations and Small Business [2002] FCA 55 (Kristoffersen), Kiefel J, after discussing the Full Court’s decision in Colakovski stated at [28]:

‘Section 41(1) cannot in my view simply be waived by the person to whom the information or opinion relates, in particular because it extends to opinions expressed about that person.  Whether disclosure is to take place depends then upon whether it is regarded as unreasonable.  In that connexion the Tribunal applied the reasoning of Heerey J in Colakovski (at 440-441), holding that the documents containing the opinions were supplied on the basis that they remain confidential and their disclosure would cause embarrassment or distress to them.  It may be that the Tribunal has understated the potential effects upon the authors if disclosure were to occur, but no legal error is disclosed in its reasoning on this point.’”

9.     As stated above, I have perused the documents in question and to my mind there is no doubt that they contain information which would lead to other persons identifying the author of folios 83 and 165 on RRT file N99/30112 and folios 10-12 on RRT file N99/30112 and that the documents contained other information personal to that person (the third party) and it is clear from the documents themselves that to release that information would cause distress to the third party whereas no good public purpose would be achieved by its release.

10.   The test as to whether a document has been provided in such circumstances that an obligation to keep it confidential exists was discussed by the Tribunal in Re Kamminga and Australian National University (1992) 26 ALD 585. At p591 the Tribunal after referring to the explanatory memorandum to the Freedom of Information Amendment Act 1991 applied the dissenting judgment of Gummow J in Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) (1987) 14 FCR 434.

11.   At 14 FCR p 443 Gummow  J held the term “breach of confidence” is used in s 45 FOI Act in terms of the general law as in an equitable suite to protect a confidence. He stated that in such a suit a plaintiff:

i.must be able to identify with specificity the information in question.

Then must show

ii.that the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge);

iii.that the information had been received by the Defendant in such circumstances as to import an obligation of confidence; and

iv.there is actual or threatened misuse of that information.

12.   As stated above, I have perused the documents in question.  It is clear that the documents are in existence and readily identifiable.

13.   The said documents have the quality of confidentiality.  They were created for the use of the Refugee Review Tribunal alone and the author never intended their contents to enter the public domain.

14.   The Respondent received the documents in confidence and took steps to maintain their confidential status.  For example, it marked the originating document as confidential.  It is also clear from the documents themselves that they have been regarded by officers of the Respondent as being confidential.

15.   I am satisfied that there is threatened misuse of the information provided.  Clearly if the said documents were relevant to any proceedings before the Refugee Review Tribunal than there is an obligation to make the information available to the Applicant.  If the information is not relevant then, although the purposes for which the Applicant seeks the document is in one sense irrelevant, see Colakovski (supra) where it was pointed out that there is no requirement that the person seeking access have a proprietary or any other interest in documents or the information contained in them, there remains a threat that it will be used to the detriment of the third party.

16.   For completeness, I will state that although the Applicant referred to certain decisions of the Queensland Information Commissioner, I did not obtain any assistance from those decisions.

17. I am satisfied that in relation to folios 83, 165, 10-12 on RRT file N99/30112 the said documents are exempt from disclosure pursuant to both sections 41 and 45 FOI Act and the documents, more particularly identified as folios 163 to 167 on RRT file N99/30112, are exempt from disclosure pursuant to s 41 FOI Act. Partial release under s 22 FOI Act would not be a viable option in this matter as the deletions necessary would render the document in question unintelligible. The decision under review is therefore affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         (E.Pope)           .....................................................................................
  Associate

Date/s of Hearing  14 February 2005
Date of Decision  21 March 2005    
Solicitor for the Applicant          Applicant self represented
Solicitor for the Respondent     Jodie Maurer, Australian Government Solicitor