Stannard and Deputy Commissioner of Taxation
[2003] AATA 406
•2 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 406
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/610
GENERAL ADMINISTRATIVE DIVISION )
Re JEFFREY RAYMOND STANNARD Applicant
And
DEPUTY COMMISSIONER OF TAXATION
Respondent
DECISION
Tribunal Senior Member K L Beddoe Date2 May 2003
PlaceBrisbane
Decision The Tribunal varies the decision under review as follows:
(a) the applicant be granted access to documents as included in Exhibit 5;
(b) the applicant be granted access to documents as included in Exhibit 8;
(c) the respondent’s claims in relation to section 37(1)(c) of the Freedom of Information Act 1982 are refused; and
(d) the applicant be granted access to document 98 as now conceded by the respondent.
(e) document 190 is not an exempt document.
The Tribunal recommends the respondent further consider the matters raised in relation to documents 291 and 292.
..................…(Sgd).................
KL Beddoe
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – various claimed exemptions – whether disclosure would reveal a confidential source of information – secrecy provisions – whether disclosure would endanger the life or physical safety of a person – personal information – legal professional privilege – financial affairs or commercial information about an organisation – whether disclosure would found an action by a person other than the Commonwealth for breach of confidence - whether exemptions properly claimed – public interest - whether documents should be released to the applicant
Freedom of Information Act 1982
Child Support (Registration and Collection) Act 1988
Taxation Administration Act 1953
Child Support Assessment Act 1989
Income Tax Assessment Act 1936
Taxation Administration Act 1953
Public Service Act 1922
Stannard v Mulvey (2000) 63 ALD 365
Department of Health v Jephcott (1985) 62 ALR 421
Colakoviski v Australian Telecommunications Corporation (1991) 100 ALR III
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257
Corrs Pavey Whiting and Byrne v Collector of Customs (1987) 13 ALD 254
Re Kamminga and ANU (1992) 15 AAR 297
Austin v Attorney-General’s Department (1986) 10 ALD 169
Re Luton and Child Support Registrar [1999] AATA 808
Re Sobczuk and Deputy Commissioner of Taxation [2002] AATA 720
Searle Australia Pty Ltd v Public Interest Advocacy Centre and anor (1992) 36 FCR 111Re Public Interest Advocacy Centre and Department of Community Services and Health (1991) 14 AAR 180
Re Dyke and Commissioner of Taxation (1990) 12 AAR 544
REASONS FOR DECISION
2 May 2003 Senior Member K L Beddoe 1. The applicant sought access to all documents, reports and files in relation to any and all complaints, allegations and investigations made to and by Fraud Prevention and Control Section in the Australian Taxation Office (“ATO”) in relation to the applicant while employed at the ATO. That request was made by letter dated 6 October 1999. There was then a dispute about charges which were waived by letter from ATO dated 11 January 2000. I have assumed the Child Support Agency (“CSA”) to be part of the ATO at all relevant times for the purposes of this matter.
2. Access was granted to a limited number of documents under cover of a letter dated 25 January 2000. A schedule of documents for which exemption was claimed was attached to the letter (T8).
3. By letter dated 16 February 2000 the applicant requested internal review of the decision (T9).
4. On 10 May 2000, the ATO solicitor conducting the internal review decided to vary the primary decision and commenced a process of granting the applicant access to further documents in stages as the internal review progressed (T25). The ATO solicitor made a series of what were called interim decisions on an irregular basis until the final decision on internal review notified by letter dated 16 March 2001 (T63). That letter included a new schedule of documents for which exemption was claimed.
5. On 11 July 2001, the applicant applied for review in this Tribunal. That application, on its face, was out of time and the applicant applied for an extension of time. The Tribunal subsequently accepted that the applicant did not receive the respondent’s notice of decision until 2 July 2001 so that his application for review was accepted as being within time.
6. The object of the Freedom of Information Act 1982 (“the Act”) is set out in section 3 of the Act.
7. The object is given effect by section 11(1) of the Act which provides, in particular, that every person has a legally enforceable right to obtain access to a document of an agency other than an exempt document, subject to and in accordance with the Act.
8. Section 11(2) has the effect of making an applicant’s motive for seeking access to documents irrelevant. The background to this matter is set out in Stannard v Mulvey (2000) 63 ALD 365.
9. Section 22 of the Act provides for deletion of exempt material and irrelevant material from particular documents by making what are, in effect, edited copies of the documents to be made available for access.
10. Part IV of the Act provides for various classes of documents and particular documents to be exempt documents.
11. The respondent relies on a number of exemptions to justify its refusal to grant access to what must be almost a myriad of documents.
12. In particular paragraph 37(1)(b) of the Act provides that a document is an exempt document if its disclosure under the Act would disclose, or could reasonably be expected to disclose, or enable a person to ascertain the existence, non-existence or identity of a confidential source of information in relation to the enforcement or administration of the law.
13. Paragraph 37(1)(c) exempts a document where disclosure under the Act could reasonably be expected to endanger the life or physical safety of any person.
14. Section 38 of the Act makes prescribed statutory secrecy provisions effective for making documents subject to those provisions exempt documents for the purposes of the Act. Schedule 3 of the Act sets out statutory secrecy provisions to which section 38 applies. For the purposes of this application the relevant statutory secrecy provisions are:
(a)section 16(2)(b) of the Child Support (Registration and Collection) Act 1988;
(b)section 150(2)(b), Child Support Assessment Act 1989;
(c)section 3C(2), 8WB(1)(c) and 8XB(1) of the Taxation Administration Act 1953; and
(d)section 16 of the Income Tax Assessment Act 1936.
15. In essence each of those provisions applies to information about a person obtained by the agency in the course of administering the relevant legislation. Such information is protected information which is not to be recorded or communicated to another person except for the purposes of the legislation under which it was obtained or in performance of duties under that legislation.
16. In relation to section 8XB(1) of the Taxation Administration Act 1953, that sub-section applies to information protected from disclosure under a taxation law. In particular section 16(2) of the Income Tax Assessment Act 1936 is part of a taxation law as defined by section 2 of the Taxation Administration Act 1953.
17. Section 41 of the Act provides for exemption of documents concerning personal information about any person if disclosure under the Act would involve unreasonable disclosure.
18. Section 4(1) of the Act defines personal information to mean information or an opinion (including information forming part of a data base), whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained from the information or opinion.
19. Section 42 of the Act, exempts from access a document that is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
20. Section 43 of the Act provides for exemption of documents that disclose information of an organisation relating to its lawful business commercial or financial affairs.
21. Section 45(1) of the Act operates to exempt from access a document the disclosure of which would found an action, by a person other than the Commonwealth, for breach of confidence.
22. Where, in proceedings under the Act, it is established that a document is an exempt document, this Tribunal does not have power (unlike the decision-maker) to decide that access to the document, so far as it contains exempt matter, is to be granted (section 58(1)).
23. In these proceedings the respondent has the onus of establishing that the decision under review was justified or that the Tribunal should give a decision adverse to the applicant (section 61(1)).
24. Also, in these proceedings there have been references to the ATO, the CSA and the Fraud Prevention and Control Section as if they were, at the relevant time, separate entities. I am satisfied that each formed part of the ATO in the context of these proceedings. So far as I am aware the subsequent removal of CSA to be a part of Centrelink has no bearing on these proceedings. My references to ATO include CSA and Fraud Prevention and Control Section. I note that the said section has a continuing function of investigating allegations made against CSA officers.
25. At the hearing the applicant conducted his own case and Ms Campbell appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) were before the Tribunal, except for those documents subject to an order by Senior Member Muller dated 27 August 2001. Further documents were tendered and marked as exhibits as follows:
Exhibit Details
AAffidavit of Applicant dated 29 May 2002
BCopy ATO letter 1 October 1999 with attachments
1Schedule of documents for which exemption claimed
2Affidavit of Ms Hollyock dated 21 June 2002
3Affidavit of Ms Hollyock dated 7 August 2002
4Affidavits of Mr Brown dated 24 June 2002 (one affidavit subject of section 35(2) order)
5Copies of documents now conceded for access 28 August 2002
6Copy of affidavit of Mr Roland dated 24 June 2002
7Affidavit of Mr Bowyer dated 31 July 2002 (section 35(2) order applies)
8Copies of documents now conceded for access 29 August 2002
9Affidavit of Ms Hollyock dated 13 September 2002 (exhibited document subject to section 35(2) order).
Oral evidence was given by:
§ Sue-Ellen Hollyock – Executive 2 ATO
§ Stephen Joseph Brown – Senior Investigator ATO
§ Paul James Roland – Advisor ATO
26. At the conclusion of the hearing the respondent was given leave to lodge further evidence in relation to documents 100, 160 and 162 as described in Exhibit 1.
27. Exhibit 9 is the respondent’s further evidence. Both parties were given leave to make further submissions in writing. Both did so and those written submissions have been taken into account.
28. Also, at the conclusion of the hearing the respondent produced to the Tribunal seven volumes of copy documents being copies of the documents the subject of claims for exemption. These documents are produced pursuant to section 64 of the Act, are not exhibits in these proceedings, but are the subject of an order under section 35 of the AAT Act. I have read the documents, at considerable expense in time, so as to determine the claims for exemption.
29. Exhibit A is a sworn statement by the applicant. It makes serious allegations about officers of the ATO and its solicitor. To that extent it is irrelevant to these proceedings because even if there have been actions mala fides etc that is not a basis for determining whether particular documents are exempt from access. Whether these officers of the ATO have acted in bad faith outside of these proceedings is not in issue before me and is not a matter for any comment by me. The witnesses who gave evidence before me satisfied me they were witnesses of truth and I have no reason to doubt their evidence.
30. I am not so satisfied about the evidence of the applicant in Exhibit A. Putting aside the irrelevant material, I have found those parts of the statement which have some relevance to be of little assistance because there is no apparent basis in fact for the assertions. The applicant chose not to give evidence so he did not have the opportunity to give any further explanation. I have taken into account the fact that Exhibit A is a sworn statement and the respondent did not seek to cross-examine the applicant on the statement. I have taken a considerable amount of time to read Exhibit A in its entirety but found it to be of no assistance in determining the claims for exemption by the respondent.
31. In particular I note that I am not required to form any opinion about matters related or referred to in Exhibit A. I do note that the applicant strenuously denies the allegations and findings made against him. I have not formed any opinion in relation to those allegations and findings other than they clearly raise serious issues which have been or need to be dealt with in forums outside this Tribunal.
32. Ms Campbell identified five categories of documents and the provisions of the Act said to exempt or partially exempt those documents from access as follows:
(a)Fraud and Prevention Control documents sections 37 and 38
(b)Personal Information Documents section 38 and 41
(c)Documents to which legal professional section 42
privilege may apply in legal proceedings
(d)Communications in confidence regarding section 45
ATO investigations of staff and others
(e)Documents relating to business affairs section 43
of others
33. The evidence satisfies me that the respondent has conducted effective searches for all documents relevant to the applicant’s claim for access. While, given the circumstances underlying this matter it is not difficult to understand that the applicant suspects a lack of candour on behalf of the respondent, there is nothing before me to suggest this is the case. The respondent’s witnesses were, in my view, witnesses of truth and there is no reason to suspect they were less than frank in giving their evidence. I mean no disrespect when I say that in the ultimate I have not been greatly assisted by the oral evidence and have conducted my own review of all the documents in respect of which exemption is claimed, except documents, the subject of a claim for legal professional privilege for which exemption is claimed and clearly relating to the matters before me.
34. I am also satisfied, on the basis of Mr Brown’s evidence, that a file numbered 99/080 is outside the scope of the application because it is a file that relates to another person and not the applicant.
35. Exhibit 9 is an affidavit by Sue-Ellen Hollyock sworn after the hearing of this matter and filed by order of the Tribunal made during the hearing. The affidavit relates to documents 100, 160 and 162 as described in Exhibit 1. The documents are time recording printouts of telephone calls made from the applicant’s telephone extension in the Child Support Agency. The telephone numbers dialled from the telephone extension have been deleted on the basis that they are third party personal information. The difficulty is that the telephone numbers are themselves very often public information courtesy of telephone directories including reverse directories. I accept the evidence of Ms Hollyock to the effect that use of a reverse directory would disclose the identity and address of persons who were the subject of enquiries by the ATO. That would be a haphazard result because some numbers would give a negative result and some would identify persons who were not the subject of ATO enquiries. I have no way of categorising the numbers in the relevant documents. The consequence is that all telephone numbers in these documents must be assumed to be confidential information and/or personal information.
36. The applicant seeks access to the details of telephone numbers of both inward and outward calls from his telephone extension in the ATO he also seeks access to files created by the ATO in relation to investigations of the applicant leading to charges under the Taxation Administration Act 1953 and the Public Service Act 1922. As the applicant submits those files are essentially about investigation of his actions. The respondent has granted partial release of these files but not granted access to confidential information (section 38) personal information (section 41) and enforcement of law sources of information (section 37(1)) claims. These claims have resulted in access being refused to whole or parts of documents in those files.
37. The applicant says there is an overwhelming public interest that access should be granted to these files without deletions. Much of the applicant’s written submissions raised issues not relevant to these proceedings.
38. The applicant raises in particular document 208 described in Exhibit 1 as “audit log of user access, undated”. It is said to list tax file numbers and taxpayer names of third parties, identity of user, system, screen, date and time. The log has been released in part but access denied in respect of confidential information and personal information. My scrutiny of document 208 confirms that the respondent has deleted names of taxpayers and tax file numbers relating to those taxpayers. There are some entries where the tax file number appears but the taxpayer’s name does not appear.
39. The applicant also specifically raised document 65 described in Exhibit 1 as “186 page audit user history report for user UAPYD, spanning 30/11/95 – 25/11/95”. Document 65 is a document as described. Access has been granted to the document except the details of tax file numbers (two columns) and taxpayer names. I have confirmed by inspection that the document is accurately described and access denied to taxpayer names and tax file numbers only. The dates in the description of the document are not correct.
40. Document 64 is a similar document said to cover the period “8/8/95 – 27/02/96” but are otherwise as for document 65.
41. The applicant also refers to two diaries to which he has been granted access subject to deletions. The diaries are documents 225 and 226. The diaries are appropriately described in Exhibit 1 and include information which includes confidential information about taxpayers and Child Support customers together with personal information relevant to ATO employees. In asserting that the blanked out portions of these documents pertain to himself, the applicant has no basis for this assertion. The deleted portions of the documents refer to a multitude of persons other than the applicant.
42. Document 190 is a copy of the 1996 Tax Pack issued by the Commissioner of Taxation. The document has been released in part. The relevance to the taxpayer’s application for access is not apparent on the face of the document. In any event I am satisfied that the document, as found in Exhibit 8, is effective in granting access to the whole document.
43. The applicant also submits that the access should be granted in accordance with the Commonwealth’s prosecution and disclosure policy as a matter of public interest. The applicant also asserts that the respondent has failed to disclose documents relevant to his application but does not provide any basis for this assertion except that he thinks there must be other documents.
44. In so far as the applicant asserts that the ATO has acted illegally in relation to himself, and, also his allegations of illegal activities of particular employees of the ATO, those are matters that are beyond the jurisdiction of this Tribunal.
45. The respondent made oral and written submissions in general terms in relation to each of the heads of exemption claimed.
46. Relying on the decision in Department of Health v Jephcott (1985) 62 ALR 421 at 425, the respondent submits that information supplied to the agency in confidence is not confined to information supplied on express terms of in confidence, but includes information supplied under an implied pledge of confidentiality. Where the information is supplied in relation to the enforcement of the law and there is an express or, implied pledge of confidentiality relevant to the information, then paragraph 37(1)(b) of the Act will have effect to exempt such information from access.
47. Mr Roland says (Exhibit 6) that over a period of three weeks he made contact with approximately forty past and present ATO staff while investigating in relation to the disciplinary proceedings relating to the applicant. Mr Roland also says that in conducting the interviews with staff members he undertook to treat the information that was provided in confidence. The nature of the information was such, he says, that it would not be generally known and only within the knowledge of a strictly limited number of persons within ATO (including the Child Support Agency).
48. Exhibit 4 is an affidavit by Mr Brown identifying documents which would disclose the names, identity or existence of confidential sources of information or allow the identity of sources to be readily ascertained. Mr Brown also exhibits pages of the ATO Employees’ Handbook which, he says, provides that an employee may expect confidentiality from the ATO concerning the employee’s identity and information given. The relevant part of the handbook as exhibited reads as follows:
“In the event that you may be a witness in a matter under investigation by internal investigators, you may expect:
(a) …
(b)given the circumstances of the particular case, that every effort will be made to preserve the confidentiality of your identity and involvement throughout the investigation;
(c)…
(d)to be required to maintain confidentiality of all aspects of the investigation within your knowledge;
(e) …”
49. The assurance of confidentiality is conditional in that a statement provided may need to be used in criminal or disciplinary proceedings.
50. The respondent also claims exemption under paragraph 37(1)(c) of the Act in relation to some of the in-confidence documents together with several further documents. The respondent submits that disclosure of the information in the documents identified in paragraph 10 of Mr Brown’s affidavit (except those documents released during the hearing), which relates to the author’s identity or whereabouts, would make that person a potential target of violence by the applicant. The respondent properly qualifies that submission by saying that there must be a reasonable apprehension of danger (of violence) not mere speculation. It is said that this is established by referring to the applicant’s violent behaviour on previous occasions. The basis for the claim under this paragraph is found, in particular, in the confidential affidavit of Bowyer (Exhibit 7). The applicant chose not to give evidence and the evidence in Exhibit 7 has not been disclosed to the applicant. It is therefore, the case that the allegations relied on remain untested allegations.
51. There is no basis for making an inference adverse to the applicant for not giving evidence. The material in Exhibit 7 could not reasonably be put to the applicant without breaching the section 35 order and the claimed confidentiality of the material.
52. However I am satisfied, on the balance of probabilities, that there is a reasonable basis for some of the persons named in Exhibit 7 to be apprehensive about the applicant’s behaviour. That is not the test that must be satisfied. As a matter of fact, I can see no basis for finding that disclosure could reasonably be expected to endanger the life or physical safety of any person.
53. The respondent relies on section 38(1) of the Act to allow exemption of information in documents where the disclosure of that information is prohibited by a statutory provision included in Schedule 3 of the Act. The secrecy provisions in Schedule 3 include the following:
(a)Paragraph 16(2)(b) of the Child Support (Registration and Collection) Act 1988;
(b)Paragraph 150(2)(b) of the Child Support (Assessment) Act 1989;
(c)Sections 3C(2), 8WB(1)(c) and 8XB(1) of the Taxation Administration Act 1953;
(d)Sub-sections 16(2), 16(4F), 16(4FA), 16(4JB) and 16(5C) of the Income Tax Assessment Act 1936.
54. The respondent submits that protected information under the Child Support legislation is exempt from access by virtue of the operation of section 38. Protected information is information disclosed to or obtained by relevant employees or officers of the Child Support Agency from within or outside the Agency in the course of their duties (Re Luton and Child Support Registrar [1999] AATA 808).
55. The respondent also submits that much of the material for which exemption is claimed is protected information included in fraud prevention and control files during the course of the investigation of allegations made against the applicant.
56. The respondent also submits that documents within the terms of section 16(2) of the Income Tax Assessment Act 1936 are exempt documents under section 38 of the Act (Re Sobczuk and Deputy Commissioner of Taxation [2002] AATA 720).
57. In relation to the secrecy provisions in the Taxation Administration Act, the respondent’s case is that, because the applicant was charged with an offence under section 8XA of that Act, information collected or acquired during the course of the investigation of allegations leading to the charge comes within the secrecy provisions of that Act.
58. In relation to the enquiries leading up to charges and dismissal under the Public Service Act 1922 the information collected during the investigation is also said to be covered by the secrecy provisions because the investigation was an ancillary function and part of duties under the taxation laws.
59. In Exhibit 4, Mr Brown identifies the documents for which a claim for exemption under section 38 is made and sets out the factual basis for the claim at paragraphs 17 to 20. In essence the basis of the claim is firstly, that the documents do not contain information about the taxation affairs of the applicant. The identified documents include forms and documents relating to child support matters about third parties, National Taxpayer System on-line enquiries and other information about taxpayers, including tax file numbers, income details, payment details, maintenance details and correspondence about child support debts. Having considered the documents in respect of which section 38 exemption is claimed, I am satisfied this is a fair characterisation in general terms of the 197 documents identified as exempt or partially exempt because of section 38 of the Act..
60. In paragraph 21 of his affidavit (Exhibit 4), Mr Brown identifies 252 documents the subject of a claim under section 41 of the Act. The respondent has since conceded access in relation to seven of those documents. While the respondent does not claim exemption for documents containing personal information about the applicant it does claim exemption for documents where the personal information about the applicant is inextricably interwoven with information of the authors for which exemption is claimed.. The respondent submits that to extricate the applicant’s personal information and grant access would be to identify the authors and unreasonably interfere with the privacy of those individuals. The respondent relies upon the Federal Court decision in Colakoviski v Australian Telecommunications Corporation (1991) 100 ALR III at 120-21 (Lockhart J) and at 123 (Heerey J), and Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257.
61. The confidential affidavits of Mr Brown and Mr Bowyer satisfy me as an issue of fact that the respective informants had, and for good reason, communicated information to the ATO in confidence. Whether disclosure of information which identifies the informants would result in harassment or similar repercussions for those informants, as asserted for the respondent, is problematic. I cannot be satisfied, on the balance of probabilities, that would be the case. However, I am satisfied that the informants had reason to perceive that might happen and that perception was not unreasonable.
62. The respondent has made a limited claim for exemption of documents under section 42 of the Act on the basis that the document would be privileged from production in legal proceedings on the ground of legal professional privilege. Document 73 (and 256) is a copy of a letter from the Director of Public Prosecutions (DPP) to the ATO regarding potential criminal proceedings in relation to the applicant. Document 62 does not have the attributes of a document likely to sustain a claim for legal professional privilege in legal proceedings. However, within the document is a record of discussions between the ATO and the DPP regarding the potential prosecution of the applicant and the claim is confined to those notes, as I understand it. Document 46 is a letter from the ATO to the DPP to which the applicant has been given access in part. The letter is of such a character that it would sustain a claim for legal professional privilege in legal proceedings.
63. Document 83 is an e-mail message relating to criminal proceedings involving the applicant, which passed between the ATO and the DPP. That document would also sustain a claim for legal professional privilege in legal proceedings.
64. Document 98 has received specific consideration including further submissions made at an in camera hearing from the respondent (Tribunal’s direction of 19 March 2003 refers).
65. The respondent received information from third parties which, I am satisfied, was provided in confidence and in circumstances that could found an action, by the information provider, for breach of confidence by the Commonwealth.
66. In its submissions the respondent relied on the dissenting judgment of Gummow J in Corrs Pavey Whiting and Byrne v Collector of Customs (1987) 13 ALD 254, and the Tribunal’s decision in Re Kamminga and ANU (1992) 15 AAR 297 at 304-6, from which it analysed the elements to be satisfied to justify exemption under section 45 in its present form. The respondent set out the elements as follows:
(a)Can the information in question be identified specifically?
(b)Does the information have the necessary quality of confidentiality?
(c)Was the information received by the respondent in such circumstances as to import an obligation of consequence?
(d)Is there actual or threatened misuse of the information?
67. The respondent’s case is that each of the elements are made out here in relation to the documents for which exemption is claimed under section 45 of the Act.
68. In Exhibit 4, at paragraph 27, Mr Brown identifies documents in respect of which exemption is claimed under section 45 as documents 17, 62, 105 and 241. The respondent has conceded partial release of documents 62 and 105 but still maintains exemption claims in respect of portions of those documents.
69. Documents 100, 160 and 162 are properly described in Exhibit 1 as “telephone destination detail reports” in relation to the applicant’s telephone extension in the ATO. In essence the respondent claims exemption under sections 41 and 43 of the Act in relation to the telephone numbers dialled out by the applicant’s phone and the cost of calls. The respondent submits that the details of telephone use were obtained in conjunction with the investigation of allegations relating to the applicant and the telephone numbers relate to the affairs of third parties. There are some numbers which Ms Hollyock has assumed were internal ATO extensions. I assume these numbers do not relate to personal information of third parties. The respondent also claims exemption of the telephone numbers and charges on the basis that disclosure of the information as to charges would amount to an unreasonable disclosure of the business affairs of EDS and Optus. The claim relies on evidence to the effect that the disclosure of the charges would disclose pricing information to competitors of EDS and Optus so as to adversely effect their business affairs.
Consideration
70. By letter dated 6 October 1999 the applicant, as already noted, applied for access to reports and files in relation to complaints, allegations and investigations made by Fraud Prevention and Control Internal Assurance Control Section in ATO, relating to the applicant while being employed by ATO (“the ATO investigation”). That is the ambit of the claim and the respondent appears to have accepted the breadth of the claim and proceeded accordingly.
71. In considering this matter I have followed the dicta of the Federal Court (Davies, Wilcox and Einfeld JJ) in Searle Australia Pty Ltd v Public Interest Advocacy Centre and anor (1992) 36 FCR 111 at 113-4 (AAT decision: Re Public Interest Advocacy Centre and Department of Community Services and Health and anor (1991) 14 AAR 180):
“It was submitted by Mr Bayne (for PIAC) that the Tribunal was limited to considering the grounds of exemption relied upon by the primary decision-maker and could not consider any grounds of exemption put forward by Searle in the proceedings before the Tribunal.
However, to take that view would be to introduce an element in FOI applications which does not apply to other proceedings. In general, the function of the Tribunal is to hear matters de novo and to reach a view for itself, untrammelled by the view taken by the primary decision-maker: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419, 429-430.
The provisions of the FOI Act do not support Mr Bayne’s submission. Mr Bayne relied upon section 59(1) of the FOI Act. That section permits a person whose business, professional or financial affairs are referred to in a document and who has submitted that it is an exempt document to apply to the Tribunal for review of a decision by the relevant agency or Minister that it is not exempt. Where that course is taken, the applicant for review is limited to the question whether the document is exempt under section 43. The applicant is not free to argue other grounds of exemption: See Mitsubishi Motors Australia Ltd v Department of Transport (1986) 12 FCR 156. But the present case was not one where a person opposing disclosure applied to the Tribunal. Searle made no application for review. PIAC was the applicant for review, under section 55 of the FOI Act. Searle, being a person interested, was joined as a party to the proceedings in accordance with section 30 of the AAT Act. In this circumstance, Searle was entitled to put forward any relevant ground of exemption. Section 58(1) of the FOI Act applied and empowered the Tribunal ‘to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister’: see eg Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 192. Moreover, section 58(2) expressly enjoined the Tribunal from granting access to a document which was established in the proceedings to be an exempt document.”
72. In an earlier decision (Austin v Attorney-General’s Department (1986) 10 ALD 169) the Federal Court (Fisher, Sheppard and Burchett JJ) had considered whether consideration of sections 41 and 42 of the Act should take into account “the peculiar exigencies of criminal proceedings”.
73. At page 173, their Honours concluded:
“Each exemption is to be given the meaning its own terms fairly convey … it is important to note of section 41(1) that it takes as its sole criterion a particular effect of disclosure; and of section 42, that its criterion is the nature of the document. Neither of those criteria can be controlled by reference to the peculiar exigencies of criminal proceedings.”
74. While section 41 has since been amended I take the view that the above dicta applies equally to the amended section.
75. I have considered, individually, all the documents upon which the respondent claims exemption, either in whole or in part. Insofar as the respondent conceded access in relation to certain documents during the hearing, copies of those documents were tendered during the hearing, marked as exhibits, and copies provided to the applicant. No further consideration is necessary in relation to those documents.
76. Document 190 is a partial copy of the Tax Pack 1996 issued under the authority of the Commissioner of Taxation. It is a document to which all members of the public had access at the relevant time. The document, as exhibited, includes some annotations which have no apparent connection with any person but the respondent claims exemption under sections 38 and 41 for the whole document. It might be inferred from the evidence of Mr Brown that the ATO believes that the annotations on the document relate to another person, not the applicant. If that were so then the exemption claimed should be on the basis of section 22 of the Act because the document is irrelevant. If the annotations were deleted in accordance with that section then what is left is a copy of a document handed out to the public at large.
77. In her interim decision notified on 28 June 2000, Ms Hollyock described the document as a “completed Tax Pack” (T40). However, the exhibited copy does not support that contention, albeit it is difficult to understand that there can be such a thing as a “completed Tax Pack” given the essential character of the document.
78. I am not satisfied that any basis for exemption has been made out in relation to document 190. While I have no basis for determining whether the document is relevant to the applicant’s claim, the respondent, in effect, asserts it is. I accept that assertion.
79. Document 190 is not an exempt document.
80. Document 122 is described in Exhibit 1 as “Internal ATO email relating to potential criminal proceedings involving the applicant, dated 19/02/99”. Originally said to be exempt because of section 42 of the Act (T8) on review the decision was changed to a claim to be exempt under section 22(T63). Consideration of the document satisfies me it has no relevance to the ATO investigation.
81. Document 168 is an edited document and is described in Exhibit 1 as “Letter from Genetic Technologies regarding paternity tests dated 29/03/95 and including attachments”. Exemption for the whole document is claimed under sections 38 and 41 of the Act. In so far as the document includes a set of instructions of six paragraphs for tracing persons the document is misdescribed. That folio has no apparent connection with the reports on paternity testing. Notwithstanding that misdescription I am satisfied that the whole of document 168 is irrelevant to the ATO investigation. I do not agree that the document comes within the terms of section 38. In so far as the document contains personal information about persons other than the applicant it would clearly be exempt under section 41. However I would treat the whole document as being within section 22 of the Act because there is no apparent relevance on the face of the documents.
82. Documents 225 and 226 are described respectively as:
(a)“1996 diary containing third party details”
(b)“1995 diary, listing third party appointments leave and scheduling”.
Document 225 is more appropriately described as a “Leave Book–1996”. It appears to be an informal record book that might be kept by a staff supervisor as an “aide memoir”, has no apparent connection with information obtained under the taxation or child support laws and cannot, in my view, substantiate a claim for exemption under section 38 of the Act. The diary does contain personal information, as defined, about persons whom I assume are officers of ATO and who could be readily identified. So far as I can tell from an examination of the document it does not contain any information about the applicant. I accept that section 41 would exempt the personal information of third parties contained in the diary. I do not accept that the diary is relevant to the applicant’s claim. I would therefore regard the diary as irrelevant to the applicant’s claim for access.
83. Document 226 is described in Exhibit (1) as “1995 diary listing third party appointments, leave and scheduling”. It is not of the same character as document 225 but has the characteristics of an individual’s diary of appointments, work undertaken and leave. The diary relates to a person other than the applicant and was apparently maintained by that person. As with document 225, and after careful consideration of the document I am satisfied it is not relevant to the applicant’s claim. I note that the document is incomplete as to the pages for the period 12 June 1995 to 18 July 1995. There is a notation that these pages are all blank and I therefore infer that the applicant has been given access to the blank pages because Ms Hollyock proceeded on the basis that the diary is a relevant document. Exhibit 8 does not include these blank pages. The same considerations apply to the blank pages 4 October 1995 to 29 October 1995, 17 November 1995 to 26 November 1995 and 29 November 1995 to end of the year (I am uncertain as to the final date in the diary).
84. Document 291 is described as “Internal memorandum regarding internal investigation of the applicant’s workplace conduct”. Contains notes regarding appointments, phone calls and interviews during the period 28/6/99 to 14/7/99 - sixteen pages in length.
85. In respect of documents 291 and 292 the respondent says:
“No release
Documents irrelevant as it relates to disciplinary proceedings and not the investigation carried out by Fraud Prevention and Control
S45” (Exhibit 1)
86. Neither of those documents are correctly characterised as a memorandum. Document 291 is described at its head as “Running Sheet” and that is a more appropriate description. Document 292 is a compilation of file notes or aides memoir in much the same format at document 291.
87. Documents 291 and 292 clearly relate to the applicant. They also clearly relate to the disciplinary proceedings. Because the applicant has sought access to documents, reports and files in relation to any and all complaints, allegations and investigations made to Fraud Prevention and Control section, as already indicated, I understand this to mean access to all documents relating to the enquiries conducted by that section. Documents 291 and 292 are not, on their face, relevant to the application.
88. However, I have also considered the documents on the basis that they are relevant to the claim. In relation to document 292, and relying on Exhibit 7, I am satisfied it is a document containing information provided in confidence by third party individuals to Mr Bowyer in relation to the disciplinary proceedings. I am also satisfied that the information was provided and accepted in confidence.
89. Reading the documents satisfied me, also, that the documents are exempt in terms of section 45 of the Act except as set out below.
90. It is now well accepted that the effect of section 45(1) is as set out by Gummow J in Corrs Pavey Whiting and Byrne v Collector of Customs(Vic) (1987) 74 ALR 428. At that time the section read as follows:
“45(1) A document is an exempt document if its disclosure under this Act would constitute a breach of confidence.
(2) Subsection (1) does not apply to any document to the disclosure of which paragraph 36(1)(a) applies or would apply, but for the operation of subsection 36(2), (5) or (6), being a document prepared by a Minister, a member of the staff of a Minister, or an officer or employee of an agency, in the course of his duties, or by a prescribed authority in the performance of its functions, for purposes relating to the affairs of an agency or a Department of State.”
His Honour said (at 74 ALR 437):
“As I have indicated the case is to be approached in terms of the general law, not as a case of confidence protected by contract, but as one, if anything, of confidence protected in equity. It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge), (iii) the information was 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: Saltman Engineering Co Ltd v Campbell Engineering Co (1948) 65 RPC 203 at 215; Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50-1; 32 ALR 485 at 491-2; O’Brien v Komesaroff (1982) 150 CLR 310 at 326-8; 41 ALR 255 at 266-8. It may also be necessary, as Megarry J thought probably was the case (Coco v Clark (AN) (Engineers) Ltd [1969] RPC 41 at 48), and as Mason J (as he then was) accepted in the Fairfax decision was the case (at least for confidences reposed within government), that unauthorised use would be to the detriment of the plaintiff.”
91. It is not necessary that I undertake a detailed consideration of section 45 because of the operation of section 45(2) in relation to the documents. The documents are documents to which section 36(1)(a) of the Act would apply except for the operation of section 36(5). The respondent does not claim that the documents are exempt within the terms of section 36 and I am satisfied that they are internal working documents within the terms of section 36(1)(a) but not exempt because of section 36(5). I am also satisfied that the documents are documents prepared by ATO in the performance of its functions as an agency of the Commonwealth.
92. I am satisfied that disclosure of documents 291 and 292 would constitute many breaches of confidence to interviewees. There are however some entries in the documents that do not satisfy the tests as to whether there would be a breach of confidence if the entry in the document is disclosed or because sub-section 45(2) operates to deny exemption under section 45(1).
93. The following entries in document 291 are not exempt under section 45(1) and access could be allowed, after taking section 22 of the Act into account, and being satisfied that no other exemption provision applies. These entries are:
30.6.99 10.30am
1.7.99 12.30pm (first entry)
2.7.99 11.00am – 1.00pm
5.7.99 10.30am – 3.30pm
6.7.99 7.30am
7.7.99 7.30am
8.7.99 7.30am
11.35am
3.10pm
9.7.99 9.30am
14.7.99 11.05am
1.10pm – first 3 words only
2.10pm – first 6 words
page 15 7.50am
94. The following entries in document 292 are not exempt under section 45(1). Taking section 22 of the Act into account access could be allowed to the following entries. I am satisfied that no other exemption applies to these entries.
Heading and Sub heading
18.8.99(sic) 13.15
22.6.99 8.00
23.6.99 10.45
5.10pm
24.6.99 8.30 – first 7 words only
first sentence third paragraph
28.6.99 6.10am
1.00pm
4.45pm
95. Notwithstanding the above I am satisfied the documents are irrelevant to the claim. The respondent may, however, consider whether it should release the documents as outlined above.
96. I have already explained above why I am not satisfied that the claims for exemption under paragraph 37(1)(c) are not made out. In so far as the respondent relies on that paragraph I am not satisfied that exemption applies. There is, however, no document where that paragraph is the sole ground for the claim for exemption and further there is no document which would cease to be exempt because I am not satisfied that paragraph 37(1)(c) applies to the document. In coming to that conclusion I have taken into account the confidential affidavit marked Exhibit 4.
97. In relation to the claims for exemption under section 38 of the Act, I have noted the relevant statutory provisions in paragraph 53 above.
98. I am satisfied that the exemption under section 38 will apply to information obtained by ATO in the course of administering the taxation legislation and the child support legislation. The respondent also submits that section 38 will operate on information obtained by officers of Fraud Prevention and Control section for the purposes of the proceedings under the Public Service Act.. That proposition is, with respect, unsustainable. Information obtained by the respondent for purposes other than the administration of the taxation laws or the Child Support legislation is not protected information under the secrecy provisions applicable to those laws.
99. In section 16 of the Income Tax Assessment Act 1936 the duty to observe secrecy is imposed by subsection 16(2) which requires that an officer shall not either directly or indirectly, except in the performance of any duty as an officer, record, divulge or communicate to any person any information respecting the affairs of another person acquired by the officer under the provisions of the Income Tax Assessment Act or any previous law of the Commonwealth relating to income tax.
100. Information obtained for non-taxation purposes is not information protected by the duty to observe secrecy under section 16. The mere fact of the information being obtained by officers of the ATO in the course of their duties is not sufficient. The information must be obtained under the provisions of the Income Tax Assessment Act.
101. Section 8XB of the Taxation Administration Act 1953 is of similar effect but has a wider effect because it is not confined in its operation similar to the definition of “officer” in section 16(2).
102. Section 150(2)(b) of the Child Support (Assessment) Act 1989 provides that a person to whom the section applies, as defined, must not communicate to any person any protected information concerning another person unless for the purposes of the Act or in performance of duties under the Act. Section 16(2)(b) of the Child Support (Registration and Collection) Act 1988 is in similar terms and has the same effect.
103. In Re Dyke v Commissioner of Taxation (1990) 12 AAR 544, at 547, the Tribunal (Deputy President Gerber) had to consider, inter alia, whether section 38 applied to copy audit reports annexed to promotion applications by officers of ATO. The Tribunal concluded that section 38 applied to exempt the audit reports notwithstanding the “misuse” of those reports for purposes not permitted by section 16 of the Income Tax Assessment Act 1936.
104. Section 38(2) qualifies the operation of section 38(1) so that it does not apply in relation to a document so far as the document contains personal information about the person requesting access. In essence that mirrors the qualification in subsection 16(2) of the Income Tax Assessment Act 1936 which prohibits communication etc of information respecting the affairs of another person, that is, a person other than the person to whom information as being communicated.
105. Whether documents contain information the subject of secrecy provisions and therefore exempt under section 38 is a matter for the respondent to establish (section 61 of the Act). That officers of the ATO may have used information protected by the respective secrecy provisions for the purposes of the Public Service Act does not, in my view, alter the essential character of the information, nor does it alter the operation of the respective secrecy provisions. To suggest otherwise would be to say that the information was no longer protected because of an abuse of the provisions as identified in Re Dyke. I am satisfied that the secrecy provisions continue to protect such information and therefore section 38 has effect, as appropriate. I am satisfied the claims in relation to section 38 are properly made in this case.
106. In relation to the document 98, this document was the subject of a resumed hearing in the applicant’s absence on 4 April 2003. At that hearing the respondent conceded access to the document except for two lines said to be exempt in terms of section 42 of the Act. I agree that these lines would substantiate a claim for legal professional privilege in a court and are therefore exempt.
107. The Tribunal will vary the respondent’s decision as follows:
(a)the applicant be granted access to documents as included in Exhibit 5;
(b)the applicant be granted access to documents as included in Exhibit 8;
(c)the respondent’s claims in relation to section 37(1)(c) are refused; and
(d)the applicant be granted access to document 98 as now conceded by the respondent.
(e)document 190 is not an exempt document.
108. The Tribunal recommends the respondent further consider the matters raised in relation to documents 291 and 292.
I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Sarah Oliver
AssociateDates of Hearing 27 - 29 August 2002
Date of Decision 2 May 2003The Applicant Appeared in Person
Counsel for the Respondent Ms M Campbell
Solicitor for the Respondent Australian Government Solicitor
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