Vaughan Spragg and Chief Executive Officer of Customs

[2014] AATA 667

[2014] AATA 667

Division	General Administrative Division
File Number	2014/2208
Re	Vaughan Spragg
APPLICANT
And	Chief Executive Officer of Customs
RESPONDENT

DECISION

Tribunal	Deputy President S D Hotop
Date	12 September 2014
Place	Perth

The decision under review is affirmed.

.......................[sgd]............................................

S D Hotop

Deputy President

CATCHWORDS

FREEDOM OF INFORMATION – request for access to document – personal information – unreasonable disclosure of personal information – document conditionally exempt – public interest – factors favouring access – factors weighing against access – access to document would, on balance, be contrary to public interest – exempt document – decision under review affirmed

LEGISLATION

Freedom of Information Act 1982 (Cth), s 3(1), s 4(1), s 11, s 11A, s 11B, s 22, s 31B, s 47F and s 58(2)

Privacy Act 1988 (Cth), s 6(1)

SECONDARY MATERIALS

Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Version 1.2, March 2013)

REASONS FOR DECISION

Deputy President S D Hotop

12 September 2014

Introduction

1. On 26 February 2013 Vaughan Spragg (“the applicant”) sent an email addressed to “FOI Coordinator, Freedom of Information, Customs and Border Protection” in the following terms:

   “ can I please have a copy of a letter dated 10/09/2012 that was send [sic] to Complaints & Compliments, with my name at the bottom of the letter.

   …”

2. By letter dated 3 April 2013 an officer of the Australian Customs and Border Protection Service notified the applicant that one document falling within the scope of his abovementioned request was in the possession of Customs and Border Protection on 26 February 2013 and that it had been decided to release to him that document “in part with deletions” on the basis that parts of that document “are conditionally exempt” under s 47E and s 47F of the Freedom of Information Act 1982 (Cth) (“FOI Act”) and that “disclosure of the conditionally exempt parts of the document is not in the public interest and therefore exempt from disclosure under the FOI Act”.

3. Following an application by the applicant to the Information Commissioner for review of the abovementioned decision of 3 April 2013, an officer of the Office of the Australian Information Commissioner (“OAIC”), by email sent on 17 February 2014, notified the FOI Coordinator, Australian Customs and Border Protection Service, that she had “decided that the OAIC will undertake a review”.

4. On 22 April 2014 the Freedom of Information Commissioner made a decision under s 55K of the FOI Act affirming the abovementioned decision of 3 April 2013.

5. On 30 April 2014 the applicant lodged with the Tribunal an application for review of the decision of the Freedom of Information Commissioner dated 22 April 2014.

   The Evidence

6. The evidence before the Tribunal comprised the “T Documents” (T1–T22, pp 1–102) lodged by the Chief Executive Officer of Customs (“the respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and Exhibit A1 (comprising a copy of a letter, dated 27 August 2012, from the applicant to an officer of the Australian Customs and Border Protection Service) tendered by the applicant. There was no oral evidence.

   Relevant Background

7. The following background documentation is included in the T Documents and Exhibit A1.

8. By letter dated 27 August 2012, the applicant wrote to the National Director, Enforcement and Investigations, Australian Customs and Border Protection Service (“ACBPS”) complaining about the behaviour of a named Customs Officer towards him at Port Hedland International Airport on 29 October 2011 (Exhibit A1).

9. On 20 September 2012 the National Coordinator, Complaints and Compliments Management System, ACBPS sent an email to the applicant acknowledging receipt from him of a letter dated 10 September 2012 (T3).

10. By letter dated 18 October 2012, the applicant wrote to the National Director, Enforcement and Investigations, ACBPS as follows:

    “ …

    FAKE LETTER DATED 10 SEPTEMBER 2012

    As I advised previously, although my name has been put to the letter dated 10 September 2012, I did not write it, I do not have a copy of it and am therefore unaware of its contents.

    As you are aware from my previous correspondence with you, my letters of complaint are always addressed to you personally and are presented in a professional manner.  I always fax a draft copy of correspondence to Kings Park Business and Secretarial Services, … who then type the letters and return them to me for final approval.  I read and sign the final copies in blue pen and then post to you in an A4 Express envelope and a second copy is express posted to ‘Complaints and Compliments’.

    This is how every letter has been done.

    The fake letter dated 10 September 2012 was written approximately ten days after my professional letter to you (dated 27 August 2012) regarding the behaviour of … at the Port Hedland International Airport.

    I believe the fake letter must have come from the Port Hedland Customs House.

    I understand two investigators from the Professional Standards Area are coming to Port Hedland to investigate this situation and identify who wrote the letter.

    During this investigation, I would like a computer expert involved who can search the Customs House computer to try to locate the fake letter on their system.

    I request interviews be carried out with the following persons

    1       …

    2       …

    3       …

    I would like a further private interview to be carried out with the female blonde Irish Customs Officer.  …

    I would also like an Attendant check to be done for the week of 10 September 2012 to identify who was missing and request these persons also be interviewed.

    Once the person who has written the letter has been identified, I request they be fired.

    I do not believe my letter of complaint dated 27 August 2012 has been handled in accordance with the Australian Customs Service Charter where all complaints are supposed to be handled with care, sincerity, courtesy, privacy and confidentiality.

    …”  (T4)

11. By letter dated 15 February 2013, the National Manager, Integrity and Professional Standards, ACBPS wrote to the applicant as follows:

    “ …

    I wish to inform you that an investigation into your complaint in regards to your allegation that a ‘faked letter’ had come from Port Hedland Customs House has been completed.

    An initial analysis of the letter dated 10 September 2012 was conducted and when compared to your previous correspondence a number of anomalies were identified.  This led the investigators to believe the letter had not been authored by you.

    During the course of the investigation, all avenues of enquiry available to the Integrity and Professional Standards (I&PS) Investigators were exhausted.  The following enquiries were conducted:

    a.Upon your request, I&PS Investigators attended Kings Park Business and Secretarial Services in Perth and confirmed the letter in question had not been produced by them on your behalf.

    b.I&PS Investigators conducted a complete audit of all Port Hedland District Office staffs’ IT systems.  No nefarious information was identified.

    c.Records of Conversations (ROC) were conducted with all available (including former) Port Hedland District Office Staff.  No information was obtained to assist I&PS Investigators to establish any involvement of any Customs Officer in the matter.

    d.Fingerprint analysis of the letter and envelope was considered by I&PS Investigators, however, due to the excessive handling of the letter by numerous persons prior to I&PS receiving the letter and placing it into evidence, this would not be viable and offer little evidentiary value.

    The information obtained during this investigation suggests that the letter may have been written by a member of the Port Hedland staff or a close associate of one of the officers.  However, there is no evidence which enables the identity of the author of the letter in question to be determined or even to determine whether it was the action of a Customs Officer. 

    Given this finding, a senior executive officer will be visiting the Port Hedland office next week to formally counsel all staff about expected behaviour and conduct.

    The investigation has concluded the letter was not written by you or on your behalf.  We, therefore, regard this matter as closed.

    …”(T6)

12. On 26 February 2013 the applicant sent the following email to the ACBPS:

    “ To FOI Coordinator,

    can I please have a copy of a letter dated 10/09/2012, that was send [sic] to Complaints & Compliments, with my name at the bottom of the letter.

    …”  (T7)

    The Relevant Legislation

13. Section 3(1) of the FOI Act provides:

    “ The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:

    (a)     requiring agencies to publish the information; and

    (b)     providing for a right of access to documents.”

    That “right of access” is conferred by s 11 of the FOI Act in the following terms:

    “(1)     Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

    (a)a document of an agency, other than an exempt document; or

    (b)an official document of a Minister, other than an exempt document.

    (2)Subject to this Act, a person’s right of access is not affected by:

    (a)any reasons the person gives for seeking access; or

    (b)the agency’s or Minister’s belief as to what are his or her reasons for seeking access.”

14. Upon the making by a person of a proper request for access to a document, s 11A(3) of the FOI Act provides that the agency or Minister:

    “ must give the person access to the document in accordance with this Act, subject to this section.”

    Subsection (4) of s 11A provides that the agency or Minister:

    “ is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.”

    Subsection (5) of s 11A, on the other hand, provides that the agency or Minister:

    “ must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.”

15. Section 11B of the FOI Act, which applies for the purpose of the application of the “public interest” test under s 11A(5), provides:

    “ …

    Factors favouring access

    (3)Factors favouring access to the document in the public interest include whether access to the document would do any of the following:

    (a)promote the objects of this Act (including all the matters set out in sections 3 and 3A);

    (b)inform debate on a matter of public importance;

    (c)promote effective oversight of public expenditure;

    (d)allow a person to access his or her own personal information.

    Irrelevant factors

    (4)The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:

    (a)access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;

    (aa)…

    (b)access to the document could result in any person misinterpreting or misunderstanding the document;

    (c)the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;

    (d)access to the document could result in confusion or unnecessary debate.

    Guidelines

    (5)In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.”

16. Part IV of the FOI Act deals with “exempt documents”. Section 31B provides:

    “ A document is exempt for the purposes of this Part if:

    (a)     it is an exempt document under Division 2; or

    (b)it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).”

    Division 3 of Part IV, which is headed “Public interest conditional exemptions”, contains the following relevant provisions:

    “ 47E   Public interest conditional exemptions—certain operations of agencies

    A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:

    (a)prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;

    (b)prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;

    (c)have a substantial adverse effect on the management or assessment of personnel by the Commonwealth, by Norfolk Island or by an agency;

    (d)have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.”

    Note:Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

    47F   Public interest conditional exemptions—personal privacy

    General rule

    (1)A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

    (2)In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:

    (a)the extent to which the information is well known;

    (b)whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;

    (c)the availability of the information from publicly accessible sources;

    (d)any other matters that the agency or Minister considers relevant.

    (3)Subject to subsection (5), subsection (1) does not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.

    …

    Note:Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).”

    Pursuant to s 4(1) of the FOI Act, the phrase “personal information”, which appears in s 47F, “has the same meaning as in the Privacy Act 1988”. In s 6(1) of the Privacy Act 1988 (Cth) the phrase “personal information” is defined as follows:

    “ personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

    (a)     whether the information or opinion is true or not; and

    (b)     whether the information or opinion is recorded in a material form or not.”

17. Section 22 of the FOI Act relevantly provides:

    “       Scope

    (1)     This section applies if:

    (a)     an agency or Minister decides:

    (i)   to refuse to give access to an exempt document; or

    (ii)…; and

    (b)it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that:

    (i)   access to the edited copy would be required to be given under section 11A (access to documents on request); and

    (ii)  …; and

    (c)it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to:

    (i)   the nature and extent of the modification; and

    (ii)  the resources available to modify the document; and

    (d)it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy.

    Access to edited copy

    (2)The agency or Minister must:

    (a)  prepare the edited copy as mentioned in paragraph (1)(b); and

    (b)  give the applicant access to the edited copy.

    Notice to applicant

    (3)The agency or Minister must give the applicant notice in writing:

    (a)  that the edited copy has been prepared; and

    (b)  of the grounds for the deletions; and

    (c)  if any matter deleted is exempt matter—that the matter deleted is exempt matter because of a specified provision of this Act.

    …”

18. Section 58(2) of the FOI Act provides:

    “ Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.”

    In s 4(1) of the FOI Act the phrase “exempt document” is defined to mean (inter alia):

    “ a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)”

    and the phrase “exempt matter” is defined to mean:

    “ matter the inclusion of which in a document causes the document to be an exempt document”.

    The Issue

19. The issue for the Tribunal’s determination is whether the letter, dated 10 September 2012, referred to in paragraphs 1, 9, 10, 11 and 12 above (“the relevant document”), is an “exempt document” for the purposes of Part IV of the FOI Act – more specifically, whether (in terms of s 31B (b) of the FOI Act) “it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5)”.

    Consideration

20. The applicant submitted that he had “a right to have a full uncensored copy of the fake letter dated 10 September 2012” for the following reasons:

    “ 1       My name is at the bottom of the letter.

    2The letter was written approximately ten (10) days after my letter of complaint (dated 27 August 2012) to Custom’s Complaint and Compliments …   I believe the fake letter was in retaliation to this letter.

    3I believe that any names mentioned in the fake letter would know the author.

    4I believe that disciplinary action should be taken against any person named in the fake letter.

    5I believe that my letter of complaint (dated 27 August 2012) was not handled in accordance with the Australian Custom’s Services Charter where all complaints are to be handled with care, sincerity, courtesy, privacy and confidentiality.” [sic]

    The applicant added that he believes that someone in Customs maliciously wrote the letter dated 10 September 2012 and put his name on it “in order to set [him] up” and that he wants a copy of that letter so that he can pursue the matter with Customs.

21. The respondent’s primary contention was that the relevant document is, by reason of the inclusion of exempt matter in that document, conditionally exempt under s 47F of the FOI Act. The respondent also contended that the relevant document is, by reason of the inclusion of exempt matter in that document, conditionally exempt under s 47E (c), (d) of the FOI Act. In each case, the respondent contended, access to the whole of that document (including the exempt matter) would, on balance, be contrary to the public interest, within the meaning of s 11A(5) of the FOI Act, and, accordingly, such access should not be given to the applicant.

22. The Tribunal notes that a copy of the relevant document was produced by the respondent for the Tribunal’s inspection and that the Tribunal has inspected that document for the purpose of determining the abovementioned issue in this proceeding.

    Is the relevant document conditionally exempt under s 47F of the FOI Act?

23. Having inspected a copy of the relevant document, the Tribunal is satisfied that it contains “personal information” (as defined in s 4(1) of the FOI Act and s 6(1) of the Privacy Act 1988 (Cth)) about the applicant and about two other persons each of whom is identified on a first name basis.

24. As regards the applicant, the “personal information” about him comprises his first name and last name, his postal address and his email address. The Tribunal notes that the ACBPS, in response to the applicant’s request for access to the relevant document, gave to the applicant access to an edited copy of that document, pursuant to s 22 of the FOI Act, modified by deletions of the “personal information” about the two other identified persons but, consistently with s 47F(3) of the FOI Act, including the abovementioned “personal information” about him (see T1, p 15; T8, p 53).

1. As regards the two other identified persons, the “personal information” about each of them comprises a reference to the person’s first name and their position within the ACBPS and adverse assertions regarding the behaviour of each of them towards the applicant and, in the case of one of the persons, hearsay assertions regarding that person’s behaviour towards others in particular circumstances.

2. Pursuant to s 47F(1) of the FOI Act, the relevant document will be “conditionally exempt” if its disclosure under that Act “would involve the unreasonable disclosure of personal information about any person …”. Section 47F(2) of the FOI Act sets out the matters to which the Tribunal must have regard in determining that issue.

3. As regards the information contained in the relevant document, which relates to the two persons other than the applicant, and the matters set out in paras (a), (b), and (c) of s 47F(2) of the FOI Act, the Tribunal, as presently advised, understands that that information is not “well known” (para (a)) and is not available from “publicly accessible sources” (para (c)), and that neither of the persons to whom the information relates “is known to be (or to have been) associated with the matters dealt with in the document” (para (b)). Other matters which the Tribunal considers relevant for present purposes (para (d)) include:

   ·the adverse assertions in the relevant document about the two other persons were either based merely on hearsay or were otherwise unsubstantiated;

   ·the reasonable likelihood that each of those persons would not wish the relevant assertions to be disclosed without that person’s consent;

   ·the relevant document is unsigned and its authorship is uncertain.

4. In the Tribunal’s opinion, having regard to the abovementioned matters, the disclosure of the relevant document “would involve the unreasonable disclosure of personal information” about persons, within the meaning of s 47F(1) of the FOI Act.

5. The Tribunal determines, therefore, that the relevant document is “conditionally exempt” under s 47F(1) of the FOI Act.

   Would access to the relevant document, on balance, be contrary to the public interest, for the purposes of s 11A(5) of the FOI Act?

6. Having determined that the relevant document is “conditionally exempt” under s 47F(1) of the FOI Act, the Tribunal, pursuant to s 11A(5) of the FOI Act, “must give the [applicant] access to the document … unless (in the circumstances) access to the document … would, on balance, be contrary to the public interest”.

7. Section 11B(3) of the FOI Act lists (inclusively) “(f)actors favouring access to the document in the public interest”, while s 11B(4) sets out the factors which “must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest”. Pursuant to s 11B(5) of the FOI Act, however, the Tribunal is required to “have regard to” the Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Version 1.2, March 2013) (“the Guidelines”) in determining whether access to the relevant document “would, on balance, be contrary to the public interest”.

8. Paragraph 6.25 of the Guidelines notes that the four factors favouring access set out in s 11B(3) of the FOI Act are “broadly framed but … do not constitute an exhaustive list” and then sets out (in subparas (a)-(k)) an additional “non-exhaustive list of factors” which “may also be relevant in the particular circumstances”.

9. Paragraphs 6.26 and 6.27 of the Guidelines, on the other hand, refer to “factors weighing against disclosure” as follows:

   “6.26 The FOI Act does not list any factors weighing against disclosure. These factors like those favouring disclosure, will depend on the circumstances. However, the inclusion of the exemptions and conditional exemptions in the FOI Act recognises that harm may result from the disclosure of some types of documents in certain circumstances; for example, where disclosure could prejudice an investigation, unreasonably affect a person’s privacy or reveal commercially sensitive information. Such policy considerations are reflected in the list of public interest factors that may be relevant in a particular case.

   6.27Citing the specific harm defined in the applicable conditional exemption is not itself sufficient to conclude that disclosure would be contrary to the public interest.  However, the harm is an important consideration that the decision maker must weigh when seeking to determine where the balance lies.”

   Paragraph 6.29 then sets out (in subparas (a)–(n)) a “non-exhaustive list of factors against disclosure”.

10. In the Tribunal’s opinion, having regard to the contents of the relevant document, relevant factors favouring access to that document are:

    ·access would promote the objects of the FOI Act (s 11B(3)(a) of the FOI Act);

    ·access may:

    -    “allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official”;

    -    “reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct”;

    -    “advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies” (para 6.25(a) ii, iii; (i) of the Guidelines);

    whereas relevant factors weighing against access to that document are:

    ·access “could reasonably be expected to prejudice the protection of an individual’s  right to privacy”;

    ·access “could reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct” (para 6.29(a), (b) of the Guidelines).

11. In the Tribunal’s assessment, in the circumstances of this case, the abovementioned factors weighing against access to the relevant document, on balance, presently outweigh the abovementioned factors favouring access to that document. In the Tribunal’s opinion, the extent to which the granting of access to the relevant document would be likely to promote the objects of the FOI Act or to result in the abovementioned positive effects referred to in para 6.25 of the Guidelines is minimal by reason of the relevant contents of that document comprising mere unsubstantiated adverse assertions and the authorship of that document being uncertain. On the other hand, notwithstanding the unsubstantiated nature of the relevant adverse assertions in the relevant document and the uncertainty of the authorship of that document, the granting of access to that document could reasonably be expected to prejudice the protection of the right to privacy of each of the persons (other than the applicant) referred to in that document by causing them distress and embarrassment, and, given that the unsubstantiated assertions relate to alleged misconduct or otherwise improper conduct, could reasonably be expected to prejudice the fair treatment of each of those persons.

12. In the Tribunal’s opinion it is appropriate, in the circumstances of this case, to attach greater weight to the abovementioned factors weighing against access to the relevant document than to the abovementioned factors favouring access to that document.

13. Accordingly, the Tribunal determines that access to the relevant document would, on balance, be contrary to the public interest, for the purposes of s 11A(5) of the FOI Act.

    The relevant document is an exempt document

14. Having determined that:

    ·the relevant document is “conditionally exempt” under s 47F(1) of the FOI Act; and

    ·access to the relevant document would, on balance, be contrary to the public interest, for the purposes of s 11A(5) of the FOI Act;

    the Tribunal determines, in accordance with s 31B of the FOI Act, that the relevant document is exempt for the purposes of Part IV of the FOI Act.

15. It follows that the relevant document is an “exempt document” (as defined in s 4(1) of the FOI Act), for the purposes of the FOI Act, and the Tribunal so determines.

    Conclusion

16. The abovementioned determinations make it unnecessary for the Tribunal to determine whether the relevant document is “conditionally exempt” under s 47E of the FOI Act.

17. The Tribunal notes, in conclusion, that pursuant to s 11(1) of the FOI Act, the “legally enforceable right to obtain access” conferred by that subsection does not extend to an “exempt document”. The relevant document has been found by the Tribunal to be an “exempt document”, for the purposes of the FOI Act, and, accordingly, the applicant does not have “a legally enforceable right”, under s 11(1) of the FOI Act, “to obtain access in accordance with [that] Act to” that document. Pursuant to s 58(2) of the FOI Act, furthermore, the Tribunal does not have power, in this proceeding, to decide that access to the relevant document (being an “exempt document”), so far as it contains “exempt matter”, is to be granted to the applicant.

    Decision

18. For the above reasons, the decision under review is affirmed.

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

............[sgd D Brodie]…......................................

Administrative Assistant

Dated 12 September 2014

Date of hearing	15 August 2014
Applicant	In person (unrepresented)
Representative of the Respondent	Mr R Northcote Legal Services Branch Australian Customs and Border Protection Service