TYGJ and Information Commissioner
[2017] AATA 1689
•13 October 2017
TYGJ and Information Commissioner [2017] AATA 1689 (13 October 2017)
Division:Freedom of Information Division
File Number(s): 2014/6300
Re:TYGJ
APPLICANT
AndInformation Commissioner
RESPONDENT
Secretary, Department of Veterans’ Affairs
JOINED PARTY
DECISION
Tribunal:Deputy President S A Forgie
Date:13 October 2017
Place:Melbourne
The Tribunal orders that:
the place name shown in the following passages in my reasons published on 27 September 2017 be omitted and replaced with the words “Place X”:
(a)paragraph 165:
(i)first line of the quotation; and
(ii)end of the fifth line of substantive text;
(b)paragraph 169:
(i)third line of the quotation;
(c)paragraph 203:
(i)fifth line of the quotation under the heading “20 October Events”; and
(d)paragraph 206:
(i)fourth line of the quotation;
the place name shown in the following passages in my reasons published on 27 September 2017 be omitted and replaced with the words “Place Y”:
(a)paragraph 165:
(i)fifth line of substantive text; and
(b)paragraph 207:
(i)third line of the fifth paragraph of the quotation;
the employment position description shown in the following passages in my reasons published on 27 September 2017 be omitted and replaced with the words “… Officer”:
(a)paragraph 45:
(i)line 5 of the quotation;
(b)paragraph 208:
(i)line 4 of the quotation; and
(c)paragraph 210:
(i)line 2 of the quotation;
the names of five Department of Veterans’ Affairs (DVA) officers not be disclosed and that they be replaced by the pseudonyms “DVA officer A”, “DVA officer B”, “DVA officer C”, “DVA officer D” and “DVA officer E” for the purposes of the application; and
publication of the name of the applicant and of any material tending to identify the five DVA officers be restricted to members and staff of the Tribunal, parties to the proceeding and their representatives, and to the Tribunal’s provider of recording and transcript services.
.........[sgd]........................................................
Deputy President S A Forgie
Catchwords
PRIVACY – published decision – application for further redactions regarding location of work and position title consistent with existing confidentiality order – application for confidentiality order regarding names of APS employees – reputational harm – unanswered allegations – application for confidentiality order granted
Legislation
Acts Interpretation Act 1901 s 34AAA
Administrative Appeals Tribunal Act 1975 ss 17A, 17B, 35
Privacy Act 1988
Military Rehabilitation and Compensation Act 2004
Public Service Act 1999 ss 7, 10, 13, 15
Safety, Rehabilitation and Compensation Act 1988
Administrative Appeals Tribunal Regulation 2015 r 8
Administrative Arrangements Order
Administrative Appeals Tribunal – President’s Direction – Allocation of Business to Divisions of the AAT
Cases
Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130
Guglielmin v Trescothick (No 3) [2005] FCA 139; (2005) 220 ALR 535
John Fairfax & Sons Ltd v Police Tribunal Of New South Wales (1986) 5 NSWLR 465
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131; 26 ALD 471
John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131; 26 ALD 471
Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217; (2005) 147 FCR 243
Re Dimitropoulos and Australian Security and Investments Commission [2017] AATA 1513
Re Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169; 66 ALD 663; 35 AAR 29
Secondary Materials
REASONS FOR DECISION
Deputy President S A Forgie
On 27 September 2017, I made a decision setting aside a decision made by the Information Commissioner on 13 November 2014 and substituting a decision to make a determination dismissing the complaint made by TYGJ on 21 November 2011. TYGJ’s complaint had been made under the Privacy Act 1988 (Privacy Act) against the Department of Veterans’ Affairs (DVA) alleging that it had breached the Information Privacy Principles (IPPs) established under the Privacy Act on three occasions in October 2011 when it disclosed his personal information in three separate disclosures. The effect of my decision was that DVA was not in breach of the IPPs. At his request, TYGJ was not identified in my reasons for decision and I had made an order to that effect under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act).[1]
[1] See [4] below
On behalf of the Secretary of DVA (DVA), his solicitor, Mr Davidson, has sought suppression of the names of certain DVA officers in the reasons and I will come to the submissions made on his behalf.[2] TYGJ has submitted that certain information remains that would identify him. In the interests of not exceeding a minimalist approach, TYGJ has asked that information relating to his former job classification and two locations where he worked be redacted. TYGJ has opposed DVA’s request saying, in essence, that the information has been made available in the past on a publicly accessible website. He also submitted that DVA has previously breached the confidentiality order made on 20 January 2015 and regard should be had to that in considering the current request for confidentiality. Furthermore, the information that appears in the reasons for decision relates to DVA officers in their official capacity. That is to be contrasted with his situation in which a pseudonym was necessary because the information concerned was personal information. The Information Commissioner has indicated through his solicitor, Mr Holcombe, that he does not wish to take an active role in this issue.
[2] See [11] below
I have acceded to the requests of both TYGJ and DVA and have made a further confidentiality order. As a consequence, I have withdrawn my decision dated 27 September 2017 and replaced it with a version in which certain identifying features of TYGJ have been replaced and the names of certain DVA officers have been replaced with the names “Officer A”, “Officer B” and so on. I will set out my reasons briefly.
SCOPE OF CONFIDENTIALITY ORDER DATED 20 JANUARY 2015
In the course of the proceedings, I made three orders under s 35 of the AAT Act. The first order I made on 20 January 2015 ordered, in part, that the:
“1. Applicant’s name not be disclosed and that it be replaced by the pseudonym ‘TYGJ’ for the purposes of the application;
2.publication of the name of the applicant and of any material tending to identify the applicant be restricted to members and staff of the Tribunal, parties to the proceeding and their representatives, and to Merrill Corporation, the Tribunal’s provider of recording and transcript services”.
Consistently with my order, I had thought that I had removed sufficient identifying factors to preserve TYGJ’s anonymity. Given TYGJ’s concerns, however, and understanding that I may not be aware of all the connections that can be made through the details I included, I have decided to remove references to two locations connected with his employment with the Royal Australian Air Force (RAAF) and his former job classification from the published version. Therefore, I order that:
(1)the place name shown in the following passages in my reasons published on 27 September 2017 be omitted and replaced with the words “Place X”:
(a)paragraph 165:
(i)first line of the quotation; and
(ii)end of the fifth line of substantive text;
(b)paragraph 169:
(i)third line of the quotation;
(c)paragraph 203:
(i)fifth line of the quotation under the heading “20 October Events”; and
(d)paragraph 206:
(i)fourth line of the quotation;
(2)the place name shown in the following passages in my reasons published on 27 September 2017 be omitted and replaced with the words “Place Y”:
(a)paragraph 165:
(i)fifth line of substantive text; and
(b)paragraph 207:
(i)third line of the fifth paragraph of the quotation; and
(3)the employment position description shown in the following passages in my reasons published on 27 September 2017 be omitted and replaced with the words “… Officer”:
(a)paragraph 45:
(i)line 5 of the quotation;
(b)paragraph 208:
(i)line 4 of the quotation; and
(c)paragraph 210:
(i)line 2 of the quotation.
DVA’s APPLICATION FOR CONFIDENTIALITY ORDER REGARDING DVA OFFICERS
Section 35 of the AAT Act
The fundamental principle is set out in s 35(1):
“Subject to this section, the hearing of a proceeding before the Tribunal must be in public.”
That principle is ameliorated by s 35(2) when it provides for a private hearing. It is further ameliorated by s 35(3) when it provides:
“The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a)information tending to reveal the identity of:
(i)a party to or witness in a proceeding before the Tribunal; or
(ii)any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b)information otherwise concerning a person referred to in paragraph (a).”
Section 35(4) also provides that:
“The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a)relates to a proceeding; and
(b)is any of the following:
(i)information that compromises evidence or information about evidence;
(ii)information lodged with or otherwise given to the Tribunal.”
Section 35(5) sets out the principles underpinning the way in which the Tribunal may exercise its powers:
“In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a)that hearings of proceedings before the Tribunal should be held in public; and
(b)that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c)that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.”
Section 35 was considered by Downes and Jagot JJ in Australian Securities and Investments Commission v Administrative Appeals Tribunal.[3] At that time, section 35 was drafted in slightly different terms as the court considered it in its form before its amendment by the Tribunals Amalgamation Act 2015. The variations between the two forms make no difference to the substantive terms in which s 35 is drafted and the statements made by Downes and Jagot JJ, with whom Moore J agreed, are equally relevant. The plurality said:
74 Again, we think it is important to emphasise certain aspects of the statutory provisions. Although s 35(1) is subject to the balance of the section, it establishes a norm. The norm is that the proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s 35(3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 510 described the power in s 35(2) to depart from this norm as one to be exercised ‘sparingly’. It also explains the approach in Australian Securities and Investments Commission v PTLZ (2008) 48 AAR 559; [2008] FCAFC 164 at [6], [41] and [42] (an appeal to the Full Court of the Federal Court from the decision of the AAT in Re PTLZ and Australian Securities and Investments Commission (2008) 100 ALD 648; [2008] AATA 106) emphasising that the words of s 35(3) require this principle of the desirability of hearings to be in public to be ‘the basis’ of the AAT’s consideration of adopting a different approach (in contrast, for example, to ‘a basis’ for that consideration).
75 Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties. Criminal proceedings are a good example. In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published. Social security applications are a good example. The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public. It is not readily apparent why persons in businesses should be treated differently even when, for example, employees may be disadvantaged.
76 When measured against the existence of the norm of a public hearing and the scheme established by the Corporations Act with respect to banning orders, it is apparent that the AAT would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. It is difficult to accept that harm (even serious harm) to the recipient’s reputation resulting from public awareness of the banning order will be a sufficiently cogent reason to justify the grant of a stay in most cases. This is because the risk of harm of this type is inherent in the nature of a banning order.”[4]
[3] [2009] FCAFC 185; (2009) 181 FCR 130
[4] [2009] FCAFC 185; (2009) 181 FCR 130 at [74]-[76]; 148-149
Principles relevant to the circumstances of this proceeding
On behalf of DVA, Mr Davidson asked that the names of five DVA officers be omitted from the published version of the reasons and that publication of those parts of the evidence and transcripts of evidence be restricted to the parties and to member and staff of the Tribunal and to its recording and transcript provider. His submissions focused on the reputational damage that may be caused to DVA officers who are unable to make publicly known their answers to the allegations made against them publicly by TYGJ. He referred to previous decisions, including my own, summarising principles he relied on in the particular circumstances of his application. Apart from the first, I have gone back to the source authorities:
(1)“ As in a court, mere financial strain or embarrassment is not a sufficient reason for making a suppression order in the Tribunal. In this case, however, I am satisfied that public disclosure of its identity would go beyond mere financial strain or embarrassment but would threaten the very existence of GDL. In doing so, it would threaten the Tribunal’s ability to carry out its review processes effectively for the review would be pointless. …”[5]
(2)“ It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms … A significant reason for adhering to the stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests may be sacrificed to the greater public interest in adhering to an open system of justice.”[6]
(3)“… [W]hat must be done in a situation such as the present is to balance the competing public interests of open justice and the desire to avoid prejudice …”[7]
(4)“ The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it….”.[8]
(5)“There has already been substantial publication of the respondent’s identity. In some situations the fact that information has passed into the public domain would inevitably lead to the refusal of an order prohibiting publication: see eg Attorney-General for the United Kingdom v Heineman Publishing Australia Pty Ltd (1987) 8 NSWLR 341 at 368-369, 374. A court will not usually make orders which are, and are seen to be, futile. However, information as to the respondent’s HIV status is not like a commercially sensitive fact which, once published, loses the value which confidentiality confers. Here each further publication can inflict a new wound.”[9]
(6)“ The terms of AAT Act s 35(5) explicitly indicate that the confidential nature of any information relevant to the review proceedings is one of the reasons that may favour an order limiting the publicity that would otherwise apply to the review process. But the extent to which, if at all, confidentiality provides a significant consideration in any particular case will depend on the actual nature of the information, the apprehended consequences of publicity, the materiality of the information to the proper determination of the review proceedings, and the statutory scheme relevant to the decision under review. Personal information, of limited relevance to the matters likely to be in issue, may permit a departure from the general principle. Information of a commercially significant kind may also justify a similar permission. But mere apprehension about the potential for reputational harm directly resulting from the reviewable decision will usually not provide a persuasive basis for restricting the publicity of review proceedings. In Australian Securities and Investments Commission v Administrative Appeals Tribunal for example, the Full Court of the Federal Court emphasised (at [2009] FCAFC 185 [74] & [75]) that AAT Act s 35 established a publicity norm, similar to that which applied in judicial proceedings. That norm applied because of the generally accepted importance of open, accessible and informed determination where decision makers exercised adjudicative powers in carrying out statutorily conferred functions.”[10]
[5] Re Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169; 66 ALD 663; 35 AAR 29 at [30]; 672; 46
[6] John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131; 26 ALD 471 at 142; 475 per Kirby P
[7] Guglielmin v Trescothick (No 3) [2005] FCA 139; (2005) 220 ALR 535 at [55]; 548 per Mansfield J
[8] John Fairfax & Sons Ltd v Police Tribunal Of New South Wales (1986) 5 NSWLR 465 at 477 per McHugh JA and adopted by Mahoney JA in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131; 26 ALD 471 at 160; 489
[9] Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217; (2005) 147 FCR 243 at [23]; 246 per Heerey and Weinberg JJ
[10] Re Dimitropoulos and Australian Securities and Investments Commission [2017] AATA 1513 at [75] per Senior Member Taylor
Consideration
The correspondence and events that I set out in my reasons for decision formed the background and gave context to the disclosures that led to TYGJ’s lodging a complaint with the Information Commissioner that DVA had breached his privacy. That correspondence was written and received by various officers of DVA as a consequence of DVA’s functions to manage claims for compensation lodged by members of the Defence Force. The same is true of their actions.
The nature of the compensation sought is one of the factors determining the precise nature of the claim lodged but, whatever the compensation and the claim, it will have been lodged under an enactment such as the Safety, Rehabilitation and Compensation Act 1988 or the Military Rehabilitation and Compensation Act 2004. Under the Administrative Arrangements Order, the Minister for Veterans’ Affairs (Minister) has responsibility for the administration of such enactments to the extent that, in essence, they relate to compensation for members of the Defence Force. Those become matters dealt with by the Minister’s Department, being DVA. DVA, therefore, is accountable to its Minister and more generally to the public for its administration of those parts of enactments for which its Minister is responsible. Accountability may occur in a variety of ways such as through DVA’s Annual Reports and through the relevant Senate Estimates Committee hearings. At another level, it may occur in a hearing for review of a decision in the Tribunal. That said, accountability extends only to the evidentiary material supporting, or led to support, the decision under review. A hearing cannot be used as an opportunity to examine the actions of DVA officers preceding or associated with the making of the decision under review.
It is reasonable to assume that DVA officers are “APS employees” for the purposes of the Public Service Act 1999 (PSA). As such, they have statutory obligations under s 13 of the PSA which are, collectively, described as the “Code of Conduct”.[11] They must, for example, behave honestly and with integrity in connection with Australian Public Service (APS) employment, act with due care and diligence in connection with that employment.[12] At all times, they must also behave in a way that upholds the APS Values and APS Employment Principles and the integrity and good reputation of the employee’s Agency and the APS.[13] The APS Values are set out in s 10 of the PSA. Among them is s 10(4), which provides that:
“The APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility.”
[11] PSA; s 7
[12] PSA; ss 13(1) and (2)
[13] PSA; s 13(11)
The PSA provides for the imposition of sanctions if the Code of Conduct is breached and makes provision in ss 15(3) to (8) for the processes by which breaches are determined. They are the processes that must be followed in determining whether there is a breach of the Code of Conduct. A hearing in the Tribunal for the purpose of reviewing a decision made by the Information Commissioner under the Privacy Act is not one of those processes. It is not the forum for determining whether there may have been a breach of the Code of Conduct. At the same time, those allegations are relevant in that they are one part of the context in which the DVA was said to have breached the IPPs. They should be included but it is not appropriate that the DVA officers against whom the allegations of breach of the Code of Conduct be named. They are not parties to the application and are not in a position to rebut those allegations publicly in a forum which is not the proper forum for determining them. Having regard to the fundamental principle that it is desirable that hearings should be held in public and evidence be made available to the public, the substance of the allegations can be available to the public even if the names of the particular DVA officers is not. I have come to the view that the balance between the principle of openness and the legitimate concerns of the five DVA officers lies in ordering that TYGJ’s allegations that certain DVA officers have breached the Code of Conduct and have engaged in lying and deceptive conduct, unethical conduct and have acted in bad faith should be publicly available but that the names of the particular DVA officers against whom his allegations have been made should not.
Having published my original decision without removing the names of the particular officers, I must accept that it may have been disseminated beyond the parties. That said, I have come to the view that this is a case in which the reputation of particular DVA officers may be harmed by the continued publication of their names in the public arena. Therefore, I have decided to remove the names of five DVA officers and replace them with “DVA officer A”, “DVA officer B” and so on wherever their names, or a form of them, appears. The order, which will be available to the parties alone will identify the DVA officers to be known as “DVA officer A”, “DVA officer B” and so on. I have also made an order similar to that dated 20 January 2015 limiting access to the names of the five DVA officers to the parties, members and staff of the Tribunal and to the provider of its transcription and recording services.
ALLOCATION OF PROCEEDING TO FREEDOM OF INFORMATION DIVISION
TYGJ submitted that the proceeding had been incorrectly allocated to the Tribunal’s Freedom of Information Division (FOI Division) rather than to its General Division. As this is an issue that has arisen from time to time in other proceedings, I will set out why I have exercised my powers in the Tribunal’s FOI and not in its General Division.
Section 17A of the AAT Act provides that the Tribunal is to exercise powers conferred on it in one or other of eight Divisions it specifies. One of these is the FOI Division and another is the General Division.[14] Others may be prescribed under s 17A(g). The Veterans’ Appeals Division has been prescribed by s 8 of the Administrative Appeals Tribunal Regulations 2015 for the purposes of s 17A(g).
[14] AAT Act; ss 17A(aa) and (a)
The Tribunal’s powers in relation to a proceeding before the Tribunal are to be exercised in the Division prescribed for it or, if no Division is prescribed, then in the Division that the President directs. That is the effect of s 17B(1) but there is one exception to it. That exception relates to two classes of power which the Tribunal may exercise only in the Security Division established by s 17A(d). The two classes of power are:
“(a) the powers of review in respect of any applications referred to in section 54 of the Australian Security Intelligence Organisation Act 1979;
(b)the power under the Archives Act 1983 to review a decision of the Archives in respect of access to a record of the Australian Security Intelligence Organisation.”[15]
[15] AAT Act; s 17B(2)
No Division has been prescribed as the Division in which the Tribunal is to exercise its powers when reviewing a decision made under the Privacy Act. Therefore, s 17B(1)(a) does not determine the Division and the Division is determined by reference to s 17B(1)(b) i.e. by reference to the Division directed by the Tribunal’s previous President, Kerr J. On 10 June 2016, the President made a direction under s 17B with effect from 27 June 2016. It is entitled “Allocation of Business to Divisions of the AAT” (ABD Direction). In so far as the Direction is relevant in this matter, it provides:
“2.1The AAT’s powers in relation to a proceeding specified in column 2 of the following table must be exercised in the Division of the AAT specified in column 1.
Column one
Column two
Freedom of Information Division
Any application in relation to a decision made under the:
(a) Archives Act 1983 that is not required by this direction or an enactment to be dealt with in the Security Division;
(b) Freedom of Information Act 1982; or
(c) Privacy Act 1988.”
…
…”
When this ABD Direction is read with s 17B(1), I am of the view that I am bound to exercise my powers in reviewing a decision under the Privacy Act by exercising them in the Freedom of Information Division.
I note that the ABD Direction has been made by the Tribunal’s former President and has not been remade by its current President, Thomas J. For the sake of completeness, I note that a direction made by a previous President under s 17B(1)(b) continues in force and has full effect even though he no longer holds the office. Until it is revoked or amended, the ABD Direction continues to have been made by the President regardless of who holds the office from time to time. That is a consequence of the power to make a direction being given to the “President”. As s 34AAA of the Acts Interpretation Act 1901 provides:
“If an Act confers a power or function or imposes a duty on a person holding or occupying an office or position as such, then the power may be exercised or the function or duty must be performed by the person for the time being holding or occupying the office or position.”
| I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for the decision herein of Deputy President Forgie |
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Associate
Dated: 13 October 2017
| Date of applications concerning confidentiality: | 5 October 2017 |
| Self-represented Applicant: | TYGJ |
| Solicitor for the Respondent: Solicitor for the Joined Party: | Mr L Holcombe HWL Ebsworth Lawyers Mr J Davidson |
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