VFRG and Australian Information Commissioner (Freedom of information)

[2019] AATA 965

VFRG and Australian Information Commissioner (Freedom of information) [2019] AATA 965 (23 May 2019)

Division:FREEDOM OF INFORMATION DIVISION

File Number:           2016/3289

Re:VFRG

APPLICANT

AndAustralian Information Commissioner

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:23 May 2019 

Place:Melbourne

The Tribunal:

(a)sets aside the decision of the Assistant Director, FOI Dispute Resolution, of the Respondent dated 28 April 2016; and

(b)substitutes a decision that the Respondent release, in full, to the Applicant each of the documents enumerated in Schedule A of the decision made on 28 April 2016 by the Assistant Director, FOI Dispute Resolution, of the Respondent.

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

R Cameron, Senior Member

Catchwords

FREEDOM OF INFORMATION – access refused under s 47E(d) Freedom of Information Act 1982 – public interest conditional exemptions – ongoing complaint investigation – where investigation concluded and respondent conceded exemption no longer applied – decision under review set aside

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Freedom of Information Act 1982 (Cth)

REASONS FOR DECISION

R Cameron, Senior Member

23 May 2019

BACKGROUND

1. At the outset the Tribunal wishes to acknowledge that this case has taken far too long to be resolved. It is difficult not to have considerable sympathy for the Applicant.

2. The chequered procedural history of this application will not be reiterated, apart from a brief synopsis of the critical events that have occurred.

3. On 30 March 2016 the Applicant lodged a request seeking access to emails, documents, file notes and any other record held by the Respondent concerning certain privacy complaints that he had made,[1] as far “as is lawfully allowed under the FOI Act”[2] (“the request”).

   [1] The complaints had been made to several agencies including the Department of Veterans Affairs, Department of Defence, National Health & Medical Research Council, Australian Government Solicitor, Commonwealth Superannuation Corporation and Australian Institute of Health and Welfare.

   [2] The request is document T3 of the T documents.

4. Upon receipt of the request, the Respondent treated it as a request for access to documents under section 15 of the Freedom of Information Act 1982 (Cth)[3] (“FOI Act”).

   [3] The contents of an email of 7 April 2016 from the Director "FOI Dispute Resolution" of the Respondent in reply to the request are referred to. This email is document T4 of the T documents.

5. It is appropriate to note that under section 3 of the FOI Act, one of the objects of the legislation is to give the Australian community access to information held by the Government of the Commonwealth by providing for a right of access to documents. This right of access to documents is enshrined in section 11 of the FOI Act, which gives every person a legally enforceable right to obtain access to a document of an agency, in accordance with its provisions.

6. The request was considered, and a decision made on 28 April 2016, by the Assistant Director, FOI Dispute Resolution, of the Respondent.[4] As part of the process of addressing the request, the Respondent identified 91 documents falling within its scope. Each of the documents is enumerated in Schedule A to the 28 April 2016 decision.

   [4] The decision of 28 April 2016 made by the Assistant Director, FOI Dispute Resolution, is document T2 of the T documents. It is hereinafter referred to as the "28 April 2016 decision".

7. The 28 April 2016 decision refused to grant the Applicant access to any of the documents on the grounds that they were “conditionally exempt in full under s 47E(d)” of the FOI Act.

8. Section 47E(d) of the FOI Act need not be reproduced in full in these reasons. It provides that a document is conditionally exempt if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.[5]

   [5] An "agency" is given a broad definition in section 4 of the FOI Act and means a Department and a prescribed authority. A Department “means a Department of the Australian Public Service that corresponds to a Department of State of the Commonwealth.”

9. The 28 April 2016 decision provided reasons why the claim for a conditional exemption was made under the FOI Act. The grounds relied upon included that because the Applicant’s privacy complaints were still being investigated “it would be disruptive to the process to disclose internal communications and external correspondence.[6] On this basis, I envisage that release of the documents could undermine the conciliation process which is carefully managed by officers of the OAIC.” The Respondent relied upon further grounds to assert that release of the documents would lead to a substantially less efficient system which could adversely impact on the Respondent’s ability to perform its privacy complaint functions.

   [6] The contents of the 28 April 2016 decision are referred to in their entirety. It is not considered necessary to reproduce them in full for the purpose of these reasons.

10. Understandably, the Applicant was dissatisfied with the decision. At various times, including before the Tribunal in the course of this hearing, the Applicant contended with considerable force and effect that several of the documents for which an exemption was claimed were indeed documents that had already been sent to him. Namely, specific emails.

11. Correspondence ensued between the Applicant and the Respondent particularly from early May 2016.[7] The contents of those emails from the Applicant to the Respondent speak for themselves. However, the Applicant did, in particularly robust terms, tackle the grounds relied upon by the Respondent in the 28 April 2016 decision. By way of example, in an email the Applicant sent to the Respondent on 1 May 2016 he stated:

    Can you explain how you have claimed “exempt in full - s 47E(d)” for documents previously released? This highlights that, far from considering the documents as you were legally required, you have just fraudulent [sic] claimed blanket exemptions without even reviewing the documents within the scope of that FOI request. That is rather disgusting to say the least.

    [7] In particular, emails of 1 May 2016 (document T12 of the T documents), 3 May 2016 (document T14 of the T documents) and 10 May 2016 (document T15 of the T documents).

    CONSIDERATION

12. There was considerable material before the Tribunal in the course of this hearing, which had been filed by the Applicant and was directed to the conduct of the Respondent in considering the request. The Tribunal has taken this material into account. However, the issue for determination by the Tribunal is a discreet one. That issue is whether or not the legally enforceable right of the Applicant to obtain access to the documents identified by the Respondent as falling within the scope of the request (being those documents enumerated in Schedule A to the 28 April 2016 decision) is established. Regrettably for the Applicant in this application, the Tribunal does not have a remit to examine, or for that matter investigate, matters beyond this question for determination.

13. Following the exchange of correspondence between the Applicant and the Respondent, the Director of the Dispute Resolution Branch of the Respondent made a decision on 17 June 2016 under section 54W(b) of the FOI Act, not to undertake a review. This allowed the Applicant to apply directly to this Tribunal for a review of the 28 April 2016 decision.

14. The Applicant in June 2016 applied to this Tribunal for review of the 28 April 2016 decision.

15. In November 2016 the Respondent made an application to this Tribunal under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) seeking to have the matter remitted to it for reconsideration. Proposed consent orders were tendered which would have resulted in the release of the majority of the documents in dispute, leaving the question of access to the remaining documents to be determined at a subsequent hearing.[8] The orders proposed by the Respondent were not agreed to by the Applicant. The application for a remittal under section 42D of the AAT Act was therefore heard by Member Shanahan. She gave written reasons on 18 January 2017 and decided not to accept the proposal to remit under section 42D of the AAT Act and refused the application.

    [8] In the material before the Tribunal there are differing references to the number of documents to be released. In one version of the proposed Consent Orders prepared in August 2016, a dispute remained concerning 3 documents in whole and 4 documents in part. Member Shanahan in her reasons of 18 January 2017 referred to the release of 87 of the 91 documents. By reason of the matters that will be apparent later in these reasons, which ever number of documents were in dispute at this time is no longer relevant.

16. Following the decision of Member Shanahan on 18 January 2017, the investigation which was relied upon by the Assistant Director, FOI Dispute Resolution, in claiming an exemption under section 47E(d) of the FOI Act concluded.[9]

    [9] The Respondent in paragraph 12 of its Statement of Facts, Issues and Contentions filed with the Tribunal on 6 March 2017 made this concession.

17. As the investigation which the Respondent relied upon as providing the grounds for claiming a conditional exemption under section 47E(d) of the FOI Act had concluded, the Respondent contended, quite correctly, that none of the 91 documents contained in Schedule A of the 28 April 2016 decision continued to be exempt.

18. The Tribunal agrees with the Respondent’s contention. As all the documents are no longer subject to a claim for any exemption under the FOI Act, they must be released to the Applicant pursuant to the legally enforceable right to access that accrues to him under the provisions of section 11 of the FOI Act.

19. The Respondent submitted that the Tribunal should set aside the 28 April 2016 decision and make a decision under the FOI Act releasing the documents listed in Schedule A to that decision to the Applicant. The Tribunal accepts this submission.

    DECISION

20. The Tribunal:

    (a)sets aside the decision of the Assistant Director, FOI Dispute Resolution, of the Respondent dated 28 April 2016; and

    (b)substitutes a decision that the Respondent release, in full, to the Applicant each of the documents enumerated in Schedule A of the decision made on 28 April 2016 by the Assistant Director, FOI Dispute Resolution, of the Respondent.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

……[sgd]…………………………….

Associate

Dated: 23 May 2019

Date of hearing:	18 April 2019
Applicant:	By telephone
Solicitors for the Respondent:	HWL Ebsworth Lawyers Ms Kristina Mihalic