Venzin and Centrelink

[2002] AATA 602

DECISION AND REASONS FOR DECISION [2002] AATA 602

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/146

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      ELIZABETH VENZIN        
  Applicant
           And    CENTRELINK        
  Respondent

DECISION

Tribunal       Mr B J McCabe, Member  

Date19 July 2002

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.           

.................(Sgnd)..................
  Mr B J McCabe
  Member
CATCHWORDS
FREEDOM OF INFORMATION – exemption – whether respondent entitled to rely on exemption under s 37(1)(b) – letter sent to Centrelink alleging breaches of the Social Security Act - whether letter a confidential source of information – whether letter relates to enforcement or administration of the law – whether release of the letter would disclose the identity of the confidential source of information

Freedom of Information Act 1982
Administrative Appeals Tribunal Act 1975
Social Security Act 1991

McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645
Department of Health v Jephcott (1985) 9 ALD 35
Luzaich v United States (1977) 435 F Supp 31
Re Hammond and Secretary, Department of Social Security [1998] AATA 630

REASONS FOR DECISION

19 July 2002            Mr B J McCabe, Member              

Introduction

1. This case relates to an application made by Mrs Elizabeth Venzin under the Freedom of Information Act 1982. The applicant wishes to identify a person who provided information to Centrelink suggesting her husband failed to declare income even though he was in receipt of a social security benefit. Centrelink withheld the identity of the informant. It relies on the exemption contained in s 37(1)(b) of the Act.
   The Facts

2. The Tribunal was provided with a bundle of documents under s 37 of the Administrative Appeals Tribunal Act 1975. Ms Shea on behalf of the respondent also tendered an affidavit sworn on 17 June 2002 by a Freedom of Information officer within Centrelink. Ms Shea made an application for an order that the contents of the affidavit be subject to a confidentiality order under s 35 of the Administrative Appeals Tribunal Act 1975. I made the order. All of the documentary evidence before the Tribunal was provided to the applicant. The Tribunal did not have the name of the informant or any other details. The applicant also gave oral evidence, although there was no dispute as to the facts.

3. Mr Venzin was in receipt of a disability support pension. He is an engineer by trade, although he was unable to work throughout the relevant period. He suffers from depression. He also possesses some skills as a cook. Mr Venzin was making curry pastes that were sold through a stall in a market. The applicant says she encouraged her husband to do so, as it was good for him. No one thought to tell Centrelink about this activity. The applicant and her husband did not derive any income from the sales: the monies generated by the sales were apparently paid into the family company to settle debts that had been run up while Mr Venzin was off work.

4. Centrelink received a letter dated 20 July 2001, containing allegations about Mr Venzin. The informant claimed in the letter that Mr and Mrs Venzin were receiving income derived from sales of cooking ingredients for Thai food through a stall at the Cleveland markets. The letter was apparently signed and included contact details for the informant. Centrelink recorded the information on its database and followed up the letter with a phone-call to the informant.

5. Centrelink investigated the allegations. It was ultimately satisfied there was no breach of the law, and no overpayments. No further action has been taken.

6. Mrs Venzin said her husband has been distressed by the incident. His condition may have been exacerbated because he does not know whom to trust. She wants to identify the informant to set her husband's mind at rest. She says she does not seek retribution against the individual, but she wants to lift the suspicions that hang in her husband's mind over every other acquaintance of the family.
   The Law

7. Section 11 of the Freedom of Information Act 1982 creates a right of access to documents. Specifically, a person is entitled to access documents held by a Minister or agency, subject to the other provisions of the Act. The person's reasons for making the request are irrelevant, according to s 11(2).

8. Requests for access to the documents are made under s 15. When a valid request is received, the Minister or agency must provide access to the documents unless the document is an exempt document within the meaning of the Act: s 18. (Mrs Venzin made a written request for access to documents received on 17 October 2001. The request was incomplete in that it did not identify the documents that were being sought. A FOI officer from Centrelink obtained the required information from Mrs Venzin and spoke with her husband the same day).

9. Not every document that is held by the bureaucracy can be accessed. There are often good reasons why matters must remain confidential. Part IV of the Act provides for a series of exemptions from the requirement to disclose. An obvious example of an exempt document is a document that contains secret information relating to defence or national security: s 33. Cabinet documents are also exempt: s 34. Strangers cannot ordinarily access documents containing private information about individuals either: s 41. The minister or agency in question bears the onus of proving that an exemption is available: s 61. Section 22 says that where possible, a document that contains exempt material should be released if the material that causes it to be exempt can be deleted.

10. Centrelink relies in this case on the exemption contained in s 37(1)(b) of the Act. That sub-section provides:

    "(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

    …

    (b)   disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; …"

1. The operation of the section was discussed by Muirhead J of the Federal Court in McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645. In that case, his Honour said (at 649) it was necessary to ask three questions when deciding whether an exemption was properly available to the respondent:

(a)Was the letter in question a confidential source of information?

(b)If so was it properly classified as relating to the enforcement or administration of the law?

(c)Would its release in toto disclose the identity of the confidential source or in the alternative could it reasonably be expected to do so?

If one adopts that approach in this case, can the respondent's decision stand?

1. The letter and the records of the telephone conversation with the informant were a confidential source of information. Forster J in Department of Health v Jephcott (1985) 9 ALD 35 endorsed the view expressed in Luzaich v United States (1977) 435 F Supp 31 at 35 that "a source is confidential if the information was provided under an express or implied pledge of confidentiality". In this case, the information contained in the documents was provided to the respondent on the basis that the informant's identity would not be disclosed. That much is clear from the final paragraph of the letter to the respondent dated 20 July 2001 which reads: "We would appreciate the confidentiality of this matter…". In any case, it is arguably public knowledge that information about suspected fraud can be given to Centrelink in confidence. Senior Member Kiosoglous in Re Hammond and Secretary, Department of Social Security [1998] AATA 630 at para 11 certainly assumed that to be the case. In those circumstances, the first limb of the rule set out by Muirhead J in McKenzie is satisfied.

2. The documents in question also clearly relate to the enforcement and administration of the law – in particular, to the Social Security Act 1991 and related legislation. The legislation contains provisions regulating the calculation and payment of benefits and the provision of information by welfare recipients. The legislation also includes provisions that permit the Secretary to recover money where benefits have been overpaid, and to punish fraud.

3. The third limb of the test in McKenzie is also satisfied as the disclosure of the documents without alteration would disclose the identity of the informant.

4. It follows the respondent is entitled to claim the documents are exempt from disclosure under s 37(1)(b). The respondent has quite properly agreed to release to the applicant the documents with the identifying material deleted from the text: s 22.
   Conclusion

5. The applicant has asked Centrelink to identify the informant so that she might re-assure her husband. That is understandable. She also expressed concern about a system that permitted people to make allegations in secret. The resulting investigation might cause stress and embarrassment where the person being investigated is subsequently cleared. That is what happened here. But these information-gathering systems have been assigned an important role in controlling welfare fraud and other criminal activities. Their effectiveness would be compromised if the bodies administering them were not able to offer some sort of assurances to informants about confidentiality.

6. The applicant's concerns are fair enough. But the angst she and her family have suffered is a consequence of the trade-off between the principles of free access to information recognised in s 11 of the Act, and the need to control fraud.

7. The decision under review is affirmed.

   I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

   Signed:         .....................................................................................
     Associate

   Date of Hearing  19 July 2002
   Date of Decision  19 July 2002
   Date of Written Reasons         23 July 2002
   The Applicant Appeared In Person
   Solicitor for the Respondent    Ms T Shea, Departmental Advocate