The State of Qld v F N Albietz, Information Comm
[1995] QSC 254
•6 October 1995
IN THE SUPREME COURT
OF QUEENSLAND
No. 696 of 1995
Brisbane
Before: Mr Justice de Jersey
[The State of Qld v. F N Albietz, Information Comm & Anor]
BETWEEN:
THE STATE OF QUEENSLAND
Applicant
AND:F N ALBIETZ, INFORMATION COMMISSIONER (QLD)
First Respondent
AND:
JOHN PAUL MURPHY
Second Respondent
JUDGMENT - de JERSEY J.
Judgment delivered 06/10/1995
CATCHWORDS: Freedom of Information Act: Information Commissioners obligation re "natural justice"; phrase "could reasonably be expected" in ss.40, 42; the "personal affairs" exemption - need for public servants' names to be disclosed? Relevance of applicant's purpose in seeking disclosure. Perrin (1993) 31 NSWLR 606.
Counsel:
Solicitors:
Hearing Date: 4 October, 1995
IN THE SUPREME COURT
OF QUEENSLAND
No. 696 of 1995
Brisbane
Before: Mr Justice de Jersey
[The State of Qld v. F N Albietz, Information Comm & Anor]
BETWEEN:
THE STATE OF QUEENSLAND
Applicant
AND:F N ALBIETZ, INFORMATION COMMISSIONER (QLD)
First Respondent
AND:
JOHN PAUL MURPHY
Second Respondent
JUDGMENT - de JERSEY J.
Judgment delivered 06/10/1995
On 24 June, 1993, John Paul Murphy applied under the Freedom of Information Act for access to the land tax file relating to the dealings of a company Milglade Pty Ltd of which he is a director, and related departmental records. After some intervening steps which I need not detail, the Under Treasurer, on 8 November, 1993, made a decision granting access to some 218 pages of documents, but deleting, from 8 of those pages, the names of departmental officers involved in various investigations, and other persons having dealings with the Office of State Revenue. The Under Treasurer excluded those details on the basis that the information was exempt under ss.44(1) and 40(c) of the Act. Mr Murphy sought the review of the Under Treasurer's decision. The Information Commissioner conducted that review, and on 19 September, 1995 set aside the decision of the Under Treasurer, and determined that Mr Murphy should have access to the documents in their entirety - that is, without the exclusion of the names of the departmental officers. The State of Queensland now applies to me to set aside the decision of the Information Commissioner, and seeks my declaration that the information which was initially withheld is indeed exempt. The State's application to me is brought under the Judicial Review Act 1991.
Mr Griffin QC, who appeared for the State, confined his submissions to three points. The matters he pursued were much more confined than the application and supporting particulars would suggest. Mr Griffin accepted that these three aspects of the challenge were the only aspects I need consider. This limitation was a matter of some importance to Mr Morris QC, who appeared for Mr Murphy.
The only three matters pursued by the Crown follow, with my responses.
Breach of requirements of "natural justice"
Under s.40(a), matter is exempt if disclosure could reasonably be expected to "prejudice the effectiveness of a method or procedure for the conduct of ... audits by an agency", unless on balance, disclosure would be in the public interest.
Ms Jane Macdonnell, Assistant Commissioner of Land Tax, swore an affidavit containing this passage:"7.Further, if the names of more junior officers are disclosed in circumstances where the applicant's motives for seeking such disclosure appear to be mischievous, I reasonably expect that revenue officers will be less inclined to refer matters to the compliance branch for audit. In turn, investigation officers (particularly the more junior ones doing the more routine audits) will be less likely to persist with audits where there are indications that they will be harassed or intimated as a result. As I recall, the relevant land tax file indicated that a previous audit of the land tax affairs of a company controlled by Mr Murphy had been abandoned as a result of concerns that Mr Murphy may be violent. If matters are not referred to compliance or not thoroughly investigated after referral, the effectiveness of the Office's audits to protect state taxation revenue would be prejudiced."
The Information Commissioner dealt with that matter in this way:
"104.While it is not the test posed by s.40(a), there is not even any particularly convincing evidence that the OSR's ability to conduct effective audits of the land tax liability of Mr Murphy (or more precisely, the company which is trustee of his family trust) would be prejudiced by Mr Murphy's having knowledge of the names of officers involved in such audits. In paragraph 7 of her affidavit, Ms Macdonnell says: 'As I recall, the relevant land tax file indicated that a previous audit of the land tax affairs of a company controlled by Mr Murphy had been abandoned as a result of concerns that Mr Murphy may be violent'. Mr Murphy addressed this at p.41 of his written submission: 'It is submitted that Macdonnell is uniquely placed to determine the truth of that statement. She has obviously not read the Trustee's file during the preparation of her deposition. If she had done so, it is submitted, she would have read the material which is before the [Information Commissioner] and which shows conclusively that nothing the applicant has done, or is alleged to have done, has hindered any investigation in any way'. In the course of this review, I called for and examined a copy of the OSR file which was released to Mr Murphy, subject to deletion of the names of officers now in issue. I could not see any indication, on the copy provided to me, of a previous audit having been abandoned because of concerns that Mr Murphy may be violent."
Mr Griffin points out that the Commissioner apparently did not, before expressing those views, give Ms Macdonnell a particular opportunity to respond to the point taken by Mr Murphy. As to the obvious response - that the Commissioner did himself what Mr Murphy suggested Ms Macdonnell could have done - Mr Griffin raised the theoretical possibilities that the Commissioner may not have examined the relevant file, or that he may have missed in the file some perhaps cryptic reference to departmental practice confirming that an audit had been abandoned.
What Mr Griffin described as his "crucial point" about this limb of the challenge, was that if the Commissioner was inclined to use his own reference to the file as a ground for rejecting (rather than corroborating) Ms Macdonnell's claim, he should first have been her an opportunity to respond. He relied on ex parte Mughal [1974] QB 313, 330-1.
Ruling
The Act imposes an attenuated obligation on the Commissioner. As relevant, he must adopt "fair" procedures (s.83(3)(a)), and ensure that each participant has an opportunity to present his or her views (sub 3(b)). The Commissioner is entitled to make such inquiries as he considers appropriate (sub 2).
I was informed without objection that a copy of Mr Murphy's submission, in which he referred to the file (see para.104 Commissioner's reasons), was furnished to Ms Macdonnell's department, but that she made no response to the Commissioner. Mr Morris pointed out that she should therefore be taken to have know that her assertion was challenged, and the basis for that challenge. In that respect, in my view, she was not treated unfairly.
The Commissioner was entitled to look himself at the file to test the competing claims (s.83(2)). As to the suggestion that he may have examined the wrong file, Ms Macdonnell speaks of "the relevant land tax file", and the Commissioner says he examined "a copy of the OSR file which was released to Mr Murphy". Plainly they were the same.
As to the possibility that the Commissioner, through ignorance of departmental procedures, may have missed a reference to the abandoning of an audit, it is enough to say that since Ms Macdonnell should be taken to have been alerted to the point, it fell to her to assist the Commissioner with a further submission on the point, if she apprehended any possible difficulty.
As to Mr Griffin's reliance to Mughal, I note that Scarman LJ said (at pp. 330-1):"The immigration officer did not have to conduct a trial: he was an administrative officer engaged in an administrative inquiry, who at the end of it had to be satisfied before he took a certain decision. Natural justice required of him that he should give Mr. Mughal a real opportunity of satisfying him: and this he did ...
I suspect that the true gravamen of the attack in this court upon the immigration officer is that he elicited information from the Inland Revenue and the National Insurance Authority ... Under the existing law an immigration officer who seeks to check or corroborate his information by such inquiries does nothing wrong; and there is a deal of commonsense in his so doing. If he does so, must he tell the entrant? No: it is an administrative function upon which the immigration officer is engaged, not a forensic one. Provided he offers the applicant for entry a genuine opportunity to satisfy him that he is a lawful settler, there can be no failure of natural justice."
Mr Griffin sought to draw from the words I have underlined his limitation that one might, by an independent inquiry, corroborate, but not reject, a claim. Apart from ignoring the reference to "check or corroborate", the submission involves a much too pedantic reading of the passage, which was not directed to any such fine distinction.
More useful are the observations of Brennan J in Kioa v. West (1985) 159 CLR 550, 628-9.
I reject this aspect of the challenge.
Suggested misinterpretation of the Act
Section 42(1)(c) provides that matter is exempt if its disclosure "could reasonably be expected to ... endanger a person's life or physical safety". The evidence before the Commissioner went to establishing that danger, with relation to departmental officers. The Commissioner found, as a fact, that he was "not satisfied that disclosure of the matter in issue could reasonably be expected to endanger a person's life or physical safety".
Mr Griffin stated that while he did not challenge the Commissioner's primary findings of fact, he submitted that the Commissioner apparently misinterpreted the words, "could reasonably be expected to," in that he gave insufficient weight to the likely reaction of departmental officers, but undue weight to factual considerations of which they would likely have been unaware.
To elucidate this submission, I need to set out lengthy parts of the Commissioner's reasons. Mr Griffin began with para.85, in which he suggested the Commissioner properly appreciated the position of the public servant:"85.Nor do I condone Mr Murphy's apparent inability to put his philosophical/ethical views to public servants without lapsing into abusive and intemperate language. Mr Murphy ought to curb this behaviour. He ought to appreciate that from the subjective viewpoint of persons on the receiving end of his occasional bursts of verbal abuse, he is likely to be seen as a threatening or menacing person due to what would appear to be a lack of self-control."
But then, he submitted the Commissioner fell into error, especially by taking undue account of matters probably outside the knowledge of relevant departmental officers:
"86.Nevertheless, the question which I have to determine is whether disclosure to Mr Murphy of the names of officers, and retired officers, of the OSR that are in issue, could reasonably be expected to endanger a person's life or physical safety. The fact that a person who feels aggrieved at the behaviour of government officials, whether the grievance is reasonable or not, is prone to lapsing into intemperate verbal abuse does not necessarily mean that the person would commit, or would even consider committing, acts that would endanger the life or physical safety of government officials. In my view, a significant segment of the population is quite capable of becoming ill-tempered or abusive towards public servants, indeed towards suppliers of goods and services in the private sector, through anger or frustration experienced in the pursuit of a grievance. Only a very small segment of the community is liable to extend such anger or frustration into retributive action which could endanger the life or physical safety of any person.
87.I am not satisfied, on the totality of the evidence, that Mr Murphy falls into the latter category. Despite the behaviour to which I have referred, I am satisfied that Mr Murphy is an intelligent man, who conducts himself within the law. I accept his evidence that he has never been prosecuted for any offence. I note that he has always ultimately, though grudgingly, complied with his legal obligations in respect of the payment of state taxes. I accept the character evidence given by Mr Peter John Byrnes in his affidavit sworn 2 December 1994. Mr Byrnes, who is a senior officer in the Department of Justice and Attorney-General, deposes to having been a close friend of Mr Murphy's for most of the past 22 years, and that while Mr Murphy is forceful and forthright in putting his views, he confines himself to the verbal arena: Mr Byrnes has never perceived even a hint that Mr Murphy was likely to become physically aggressive. This is consistent with the evidence that Mr Murphy has not taken any action against officers of the OSR, whose identities have been known to him for several years, that involved endangering a person's life or physical safety.
88.I am satisfied that Mr Murphy would not, and does not intend to, use any names of officers which he obtains through his FOI access application in any way which would be contrary to the law, let alone which would endanger the lives or physical safety of any of the officers. Any action which Mr Murphy proposes to take to redress alleged wrongs will, I believe, be undertaken through proper legal avenues. Mr Murphy has given evidence as to his intentions in pursuing access to the names of officers which are in issue, in paragraphs 1-4 of his affidavit sworn on 4 December 1994:
'1.Consequent upon an FOI request to the Treasury as deposed to below, I received certain documents. Some of these documents contain matter which accuses me of having committed a criminal assault. Certain remarks made to my accountant (also deposed to below) carried an implication of the same nature.
2.Following an FOI request to the Brisbane City Council ("BCC") as deposed to below, I obtained inter alia an incomplete copy of one of the documents mentioned in the previous paragraph. This document contained the same defamatory matter. It became evident to me that this material had been disseminated outside the Office of State Revenue ("OSR").
3.My purpose in requiring names of OSR employees is to enable me to determine the identity of those responsible for defaming me in relation to the documents already disclosed and to determine whether there have been other publications of defamatory matter concerning me. It is my present intention, having acquired the necessary information, to commence appropriate proceedings in the Supreme Court.
4.I have no other purpose for obtaining the names'."
Mr Griffin focused on the words "would not" in the opening line of para.88: the requisite question, he pointed out, is whether danger "could reasonably be expected".
Although he concentrated in his submission on s.42, Mr Griffin suggested that the Commissioner had similarly misinterpreted the same words in s.40.
Ruling
The words "could reasonably be expected to ... " obviously required an objective assessment by the Commissioner. Compare, on similar legislation, Attorney-General's Department v. Cockcroft (1986) 10 FCR 180, 190.
The Commissioner properly stated the legislative prescription in para.86 of his reasons. He then went on to list considerations which certainly were relevant considerations, in that the assessment was objective. Mr Griffin's contention that the Commissioner gave undue weight to matters of which the Departmental officers have been unaware is, in the end, simply irrelevant, because of the feature that the test is objective. As Mr Morris fairly countered, Mr Griffin was contending for an objective test, but then, impermissibly, "through the eyes of someone who does not know all the facts".
As to the other limb of this challenge, I see nothing wrong in principle with the Commissioner's expressing his conclusion in para.88 that he was satisfied that Mr Murphy "would not" use the names unlawfully, or to endanger their lives or physical safety. If the Commissioner was satisfied of that on the evidence before him, he was entitled to take that into account as one factor relevant to the broader assessment of whether in all the circumstances disclosure could reasonably be expected to endanger life etc.
I reject the submission that the Commissioner misinterpreted these aspects of the sections.
The 'personal affairs' exemption
Section 44(1) provides that "matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person ... unless its disclosure would, on balance be in the public interest".
The Commissioner held that disclosing the names of the officers would not disclose information concerning their "personal affairs". He offered the justification that "it should now be accepted in Queensland that information which merely concerns the performance by a government employee of his or her employment duties ... is ordinarily incapable of being properly characterised as information concerning the employee's "personal affairs" ...". He declined to follow decisions to the contrary of the Victorian Administrative Appeals Tribunal, and preferred the decision of the New South Wales' Court of Appeal in Commissioner of Police v. Perrin (1993) 31 NSWLR 606.
Mr Griffin sought to distinguish Perrin on the basis that the Second Reading Speech in relation to the corresponding New South Wales legislation at least heavily implied an intention that the names of public servants should be supplied, and that Kirby P referred to that - whereas in Queensland and Victoria, no such statement was made in the Parliament. Mr Griffin asked me to prefer the Victorian cases (as examples, re Simons v. Victoria Egg Marketing Board (1985) 1 VAR 54; and re Perton v. Department of Manufacturing & Development (1991) 5 VAR 149, 150).
Ruling
The Commissioner found that the names of the departmental officers were not pieces of information concerning their "personal affairs". He therefore did not have to consider whether disclosure would be, in any event, "in the public interest".
The words should be taken to carry their ordinary meaning. In Perrin, Kirby P said (p.625) that was "the composite collection of activities personal to the individual concerned", with which I am prepared to agree. I do not think that the name by which a person is known ordinarily forms part of that person's 'personal affairs'.
But the question under s.44(1) is whether disclosure of the names of the departmental officers "would disclose information concerning" their personal affairs. What would it disclose here?
The Information Commissioner has proceeded on the basis that it would disclose information "which merely concerns the performance by a government employee of his or her employment duties" (para.28 reasons). The Commissioner examined the documents (para.9 reasons) and his conclusion expressed in para.28 must therefore be accepted as a finding of fact he was entitled to make. That being so, one naturally takes the next step, which is to conclude that the exemption is unavailable.
The following analysis by Mahoney JA in Perrin is helpful (pp.638-9):"The fact that a person is a public servant involved in a particular transaction or on duty at a particular time may, in some circumstances, 'involve' the disclosure of information concerning his personal affairs. Thus, it may involve that he was not at home at a particular time. Whether it will do so will depend upon the circumstances and what is suggested to be 'involved'. In the present case, the suggestion is essentially that what will be disclosed is that the person took part in the passage of information to Queensland. That, I think, is not part of 'the personal affairs' of the persons in question: it is part only of their public duties and the discharge of them. But it was submitted, at least at one stage, that the mere fact that a person, a public servant, performs a particular function or performed it on a particular occasion is part of 'private affairs'. Special cases apart, I do not think that this would be so. I do not think that it is this which the exemption was intended to protect.
Kirby P put the matter in this way (p.625):
"... it cannot properly be said that the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales police can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their police duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption. But the name of an officer or employee doing no more than the apparent duties of that person could not properly be classified as information concerning the 'personal affairs' of that person. The affairs disclosed are not that person's affairs but the affairs of the agency."
The point made in the New South Wales Parliament during the Second Reading Speech (by implication) is not prominent in the reasons of the judges in Perrin. Mahoney JA and Clarke JA did not refer to it at all. Kirby P prefaced his (contingent) reference to the matter with the words (p.625): "If there is ambiguity in the phrase ..." The point does not provide adequate grounds for distinguishing that case from this.
There is indeed no basis on which I should depart from that highly persuasive, unanimous decision of the New South Wales Court of Appeal on legislation in relevantly identical terms. In fact it accords with my own interpretation of the provision.
Counsel made no particular submission to me with relation to the significance of Mr Murphy's motivation in pursuing the application. Mr Murphy's only purpose, as revealed by his affidavit, is to:"determine the identity of those responsible for defaming [him] in relation to the documents already disclosed and to determine whether there have been other publications of defamatory matter concerning [him], with a view to instituting appropriate proceedings."
I can readily appreciate the grave apprehension of the departmental officers concerned. But the Freedom of Information Act does not confer any discretion on the Information Commissioner, or the Supreme Court, to stop disclosure of information because of any particular motivation in the applicant. Even were I satisfied that Mr Murphy intended to do nothing more constructive than cause mischief and trouble for departmental officers, and that he was maliciously motivated, I would have no discretion under this supposedly beneficial legislation to remove his right to the disclosure. There has certainly been some attempt, through s.42 for example, to impose a limitation on disclosure by reference to undesirable possible consequences. But there is no expressed general discretion, and none can be implied. Obviously the legislative intent is to free-up, rather than restrict, the availability of information, and as one sees from s.44(1) itself, even if information concerns personal affairs, it must nevertheless be disclosed if the public interest favours disclosure.
If the sort of disclosure necessary here, through the operation of this legislation, causes public servants to become chary about committing pen to paper, then that is no doubt a consequence to which the parliament will give attention: it is in short a matter for the parliament to remedy, and not for me through adopting an unduly limited interpretation of the Act.
I therefore dismiss the application. I order the applicant to pay the second respondent, Mr Murphy's costs of and incidental to the application to be taxed. I should say that I decline to exercise a discretion in favour of ordering taxation on a solicitor and own client basis, as was sought by Mr Morris: there is in my view no sufficiently special aspect of the case to warrant such an order.
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