Vincent O'Donoghue and Department of Immigration and Citizenship
[2013] AATA 30
[2013] AATA 30
Division GENERAL ADMINISTRATIVE DIVISION File Number
2010/4007
Re
Vincent O'Donoghue
APPLICANT
And
Department of Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 22 January 2013 Place Perth The Tribunal varies the decision under review by determining that access to those documents in folios 27–87 in Department of Immigration and Citizenship file CLF2005/4528 which are contained in pages 16–61 of Exhibit R3 be given to the applicant pursuant to the Freedom of Information Act 1982 (Cth). In all other respects the decision under review is affirmed.
............................[sgd]......................................
S D Hotop, Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – request by applicant for access to documents – access to some documents given to applicant – access to exempt documents not given to applicant – documents affecting personal privacy – documents relating to business affairs – access to additional documents should be given to applicant – decision under review varied
LEGISLATION
Freedom of Information Act 1982 (Cth), s 3, s 4(1), s 11, s 15(1), s 22, s 41(1), s 43(1), s 54, s 55, s 58 and s 61(1)
CASES
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6ALN N257
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Jorgensen v Australian Securities and Investments Commission (2004) 208 ALR 73O'Donoghue v Minister for Immigration and Citizenship and Migration Review Tribunal [2010] FMCA 345
REASONS FOR DECISION
Deputy President S D Hotop
22 January 2013
Introduction
Vincent O’Donoghue (“the applicant”) has applied to the Tribunal for review of a decision of an “Assistant Manager FOI” within the Department of Immigration and Citizenship (“the respondent” or “DIAC”) made on 16 April 2010, following an internal review, under s 54 of the Freedom of Information Act 1982 (Cth) (“FOI Act”).
At the commencement of the hearing of this matter on 17 December 2012 the applicant stated that he proposed to make an application for the adjournment of the hearing, adding that, if that application were refused, he would immediately withdraw from the hearing. The Tribunal then informed the applicant that, if his application for an adjournment were refused, the Tribunal would proceed with the hearing either in the presence, or in the absence, of the applicant, as the case might be.
The applicant made an application for the adjournment of the hearing. That application was opposed by the respondent. The Tribunal formally refused the applicant’s adjournment application. The applicant then withdrew from the hearing.
The respondent then made an application for dismissal of the applicant’s application for review, pursuant to s 42A(5)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), on the ground that the applicant had failed, within a reasonable time, to proceed with his application for review. The Tribunal formally refused the respondent’s dismissal application.
The Tribunal then proceeded with the hearing of this matter.
The Evidence
The evidence before the Tribunal comprised:
·the “T documents” (T1–T8, pp 1–36) lodged by the respondent on 10 November 2010 in accordance with s 37 of the AAT Act;
·affidavit of Mark O’Rourke, dated 15 March 2011 (Exhibit R1);
·affidavit of Andrew Paterson, dated 15 March 2010 (Exhibit R2); and
·Court Book in Federal Magistrates Court File number PEG 3 of 2010 in the matter of Vincent Thomas O’Donoghue (Applicant) and Minister for Immigration and Citizenship (First Respondent) and Migration Review Tribunal (Second Respondent) (Exhibit R3).
Factual Background
The following background facts are found by the Tribunal on the basis of the T Documents and Exhibit R3.
On 14 November 2003 the applicant made an application to DIAC for an Employer Nomination (Residence) (Class BW) visa (Exhibit R3, pp 1–203). On 26 August 2009 a delegate of the Minister for Immigration and Citizenship decided to refuse the applicant’s visa application under s 65 of the Migration Act 1958 (Cth) (“Migration Act”) (Exhibit R3, pp 347–350).
On 21 September 2009 the applicant applied to the Migration Review Tribunal (“MRT”) for review of the delegate’s decision of 26 August 2009 (Exhibit R3, pp 352–360). Subsequently, DIAC, pursuant to s 352(4) of the Migration Act, provided the MRT with two DIAC files relating to the applicant, namely, CLF2005/4528 and CLF2009/111874, for the purpose of the review.
On 7 November 2009 the applicant made a request, under s 362A of the Migration Act, to the MRT for access to a copy of all written material held by the MRT in relation to his application for review. (Exhibit R3, pp 422–424)
By letter dated 12 November 2009 an officer of the MRT wrote to the applicant as follows:
“ I am writing about your request for access to documents relating to your applications for review in relation to decisions to refuse to grant Employer Nomination (Residence) (Class BW) visas.
The relevant documents in the Tribunal’s possession are:
·folios 1 to 85 on the Migration Review Tribunal (MRT) file 0907660;
·folios 1 to 160, two un-folioed pages on the Department of Immigration and Citizenship (DIAC) file CLF2005/4528. This file also contains two financial documents at folios 27 and 28 which are 40 pages and 20 pages in length respectively; and
·folios 1 to 117 and three un-folioed pages on the Department of Immigration and Citizenship (DIAC) file CLF2009/111874.
Please find enclosed copies of all disclosable folios from the above files.
A copy of MRT file 0907660 has been released to you in full.
Folios 124-130, 134-137, 148-152, and 155-158 on the DIAC file CLF2005/4528 are excluded because they are subject to a certificate made by DIAC under section 375A of the Migration Act which certifies their disclosure to be contrary to the public interest.
Parts of the financial documents at folios 27 and 28 on the DIAC file CLF2005/4528 are partially excluded from disclosure under section 14, Information Privacy Principle 11 of the Privacy Act 1988 as they contain information of a personal nature about a third party and the Tribunal is not satisfied that the specific person would be reasonably likely to have been aware that his or her personal information would be disclosed to you and the person has not yet consented to that information being disclosed to you. Edited versions of folios 27 and 28 have been released to you in which the information relating to other persons has been deleted.
A copy of DIAC file CLF2009/111874 has been released to you in full.
…” (Exhibit R3, pp 429–430)
On 11 December 2009 the applicant made a request under the FOI Act to the MRT for access to all documents relating to his MRT matter. (Exhibit R3, pp 476–477).
By letter dated 16 December 2009 an Authorised FOI Officer of the MRT wrote to DIAC as follows:
“ RE: Vincent Thomas O’Donoghue CLF2005/4528 & CLF2009/111874
The Tribunal has received a request under the Freedom of Information act 1982 (FOI Act) for access to documents relating to the above client.
As agreed in the Memorandum of Understanding dated 25 November 2005, FOI requests which relate to Department files held by the Tribunal will be returned to the Department for FOI processing.
The application for review has been completed and the DIAC files returned to DIAC today, 16/12/09. Please find a copy of the FOI request and acknowledgement letter to the applicant attached for your attention.” (Exhibit R3, p 524)
On 14 December 2009 the applicant made a request under the FOI Act to DIAC for access to documents described as follows:
“ All files & papers. All that & those documents, papers, letters, emails, faxes, notes, memoranda & all & any other written records, however arising & whensoever arising & whether directly or indirectly arising in regards to this matter, including though not limited to Commonwealth agencies, State agencies, and Overseas agencies, and all other third parties, and Courts & Government Departments.” (T2, p 3)
On 5 March 2010 a “FOI Case Officer” of DIAC made a decision under the FOI Act that certain documents falling within the scope of the applicant’s request for access were wholly exempt and that other documents were partially exempt. (T7)
On 17 March 2010 the applicant made an application to DIAC for an internal review of the abovementioned decision of 5 March 2010. Receipt of that application was acknowledged by DIAC by letter dated 17 March 2010. (T8)
By letter dated 16 April 2010 an “Assistant Manager FOI” within DIAC notified the applicant that, on internal review, he had decided to “set aside” the decision of 5 March 2010 and make “a new decision in relation to the request for access to documents”. In his Statement of Reasons for that decision the Assistant Manager FOI stated (inter alia):
“ …
Documents in scope:
1. Departmental file CLF2002/4935 folios 1 - 113
2. Departmental file CLF2005/4528 folios 1 - 221
3. Departmental file CLF2009/111874 folios 1 - 132
4. Departmental file OPF2002/8669 folios 1 - 22
5. Departmental file OPF2002/9324 folios 12 - 55
6. Departmental file OPF2003/4639 folios 10 - 15, & 22-28
7. Departmental record OCD2003/10426 folios 80 - 123
8. Departmental record OCD2003/3405 folios 33 - 58
9. Departmental record OCD2004/1852 folios 143 - 150
10. Departmental record OCD2004/2378 folios 1 - 9
11. Departmental record OCD2005/13133 folios 162 - 180I have decided to release the documents previously released to you and a number of other documents. I have exempted a number of documents as per my reasons for decision. See schedule of documents to decision record.
…
D. REASONS FOR DECISION
I have considered the files within the scope of your request and applied exemptions in part or in full to documents as detailed in the Schedule of Documents. You should read the schedule in conjunction with the exemptions below.
Exemptions under Subsection 41(1)
Exemptions may be made under Subsection 41(1) of the Act where release of information would constitute an unreasonable disclose concerning a third party’s personal information.
Exemptions under this subsection mainly relate to the personal and company financial and taxation records included in your file as part of an application to sponsor you to work in Australia. Although these financial and taxation records date back to 2002/2003, I believe it would be an unreasonable disclosure to release these documents to you now as they have no relevance to your current situation. Also exempted under this subclass is a mobile telephone number of a person who was at the time working with the Australian Federal Police.
I have decided to exempt material listed in the attached schedule as it contains information which relates to people other than the FOI applicant and it would be unreasonable to release this information.” (T2, pp 3–8)
The contents of the Schedule of Documents are as follows (T2, p 9):
Departmental File:
File Number Folio Number Description Decision Legislation CLF2005/4528 27-87 Financial records of Neil Hope and Hope Lawyers Full exemption s41(1) 217 Mobile telephone number Partial exemption s41(1)
On 20 September 2010 the applicant lodged with the Tribunal an application for review of the internal review decision of 16 April 2010. On 7 October 2010 the Tribunal, pursuant to s 29(7) of the AAT Act, granted the applicant an extension of time until 20 September 2010 for the lodgment of that application for review.
The Relevant Legislation
The FOI Act, as in force at all material times, relevantly provided as follows:
“ …
3 Object
(1)The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:
(a)making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(b)creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
(c)creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.
(2)It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
…
4Interpretation
(1)In this Act, unless the contrary intention appears:
…
exempt matter means matter the inclusion of which in a document causes the document to be an exempt document.
…
personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
…
11Right of access
(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.
…
15Requests for access
(1)Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.
…
22Deletion of exempt matter or irrelevant material
(1)Where:
(a)an agency or Minister decides:
(i) not to grant a request for access to a document on the ground that it is an exempt document; or
(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b)it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i) would not be an exempt document; and
(ii) would not disclose such information; and
(c)it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
(2)Where access is granted to a copy of a document in accordance with subsection (1):
(a) the applicant must be informed:
(i) that it is such a copy; and
(ii) of the ground for the deletions; and
(iii) if any matter deleted is exempt matter because of a provision of this Act – that the matter deleted is exempt matter because of that provision; and
…
41 Documents affecting personal privacy
(1)A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
…
43Documents relating to business affairs etc
(1)A document is an exempt document if its disclosure under this Act would disclose:
(a) trade secrets;
(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or
(c) information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:
(i)the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or
…
54Internal review
(1)Subject to subsection (1A), where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency, being:
(a)a decision refusing to grant access to a document in accordance with a request; or
(b)a decision granting access to a document but not granting, in accordance with the request, access to all documents to which the request relates; or
…
the applicant may, by application in writing to the agency accompanied by any application fee in respect of the application, request a review of the decision.
…
55 Applications to Administrative Appeals Tribunal
(1)Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
(a)a decision refusing to grant access to a document in accordance with a request; or
(aa)a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or
…
(2)Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.
…
58Powers of Tribunal
(1)Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
(2)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.
…
61Onus
(1)Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.
…”
Evidence Tendered by the Respondent
The respondent tendered in evidence an affidavit of Mark O’Rourke, dated 15 March 2011, which had been filed in this proceeding and which states as follows:
“ …
1.I am an Assistant Manager in the Melbourne FOI Section of the Department of Immigration and Citizenship (‘the Department’). I am authorised to make this affidavit on behalf of the Department.
2.I make this affidavit from my own knowledge and from my perusal of the relevant Departmental documents and records.
3.On 14 December 2009, the applicant made a request under the provisions of the Freedom of Information Act 1982 (Cth) for access to various documents held on the Department’s file (‘the FOI request’). The FOI request was stated in the following terms:
All files & papers. All that & those documents, papers, letters, emails, faxes, notes, memoranda & any all & any other written records, however arising in regards to this matter, including though not limited to Commonwealth agencies, State agencies, and Overseas agencies, and all other third parties, and Courts & Government Departments. (sic)
4. The FOI Section was responsible for processing the FOI request.
5.On 5 March 2010 a decision was made by an FOI Case Officer to partially release copies of the documents requested.
6.On 17 March 2010 the Department received a request for an internal review of the decision of 5 March 2010. The application stated:
I do not believe that the decision handed down on 05 March 2010 is bona-fide. In all circumstances, I wish to appeal this decision. I wish to apply for an internal review.
7.I was the officer responsible for conducting the internal review. In conducting the internal review I searched the Department’s database, Integrated Client Services Environment (ICSE), and the file management system TRIM. As Mr O’Donoghue arrived in Australia on an Electronic Travel Authority (ETA) I did not check the overseas systems. I determined that all files and documents I located were within the scope of the applicant’s request.
8.On 16 April 2011 (sic), I made a decision in relation to the FOI request. I decided to release all of the documents previously released to the applicant as well as a number of other documents. I decided to exempt access to certain documents as I was satisfied that the release of information would constitute an unreasonable disclosure concerning a third party’s personal information.
9.There was no reference to metadata in the applicant’s request and I did not consider metadata to be within the scope of the applicant’s FOI request.
10.On 28 July 2010, the applicant sent a facsimile which stated:
I refer to the above and earlier correspondence.
Please note that I now require a Meta Data Report on all documents sent and or received by DIAC (formerly DIMIA) in regards to this matter.
Now shown to me marked ‘MOR-1’ and annexed to this affidavit is a copy of the applicant’s facsimile dated 28 July 2010.
11.On 10 August 2010, I wrote to the applicant seeking clarification of this request. Now shown to me marked ‘MOR-2’ and annexed to this affidavit is a copy of my letter to the applicant dated 10 August 2010.
12.The applicant did not respond to my letter. The Department is unable to process this request until the applicant clarifies the documents he is seeking. If the applicant clarifies those documents the request can be processed accordingly.
13.On 15 February 2011 the applicant lodged a further FOI request seeking ‘all documents and files since the date of the (original) decision’ which is currently being processed. Now shown to me marked ‘MOR-3’ and ‘MOR-4’ and annexed to this affidavit is a copy of the further FOI request and the Department’s response.
…”(Exhibit R1)
The Tribunal notes that, before the applicant withdrew from the hearing of this matter (see paragraphs 2–3 above), the respondent’s representative had informed the Tribunal in the hearing (in the presence of the applicant) that Mr O’Rourke would be available (by telephone) for cross-examination by the applicant. Following the applicant’s withdrawal from the hearing, the Tribunal received Mr O’Rourke’s abovementioned affidavit into evidence and did not require him to be called to give oral evidence.
The respondent also tendered in evidence a copy of an affidavit of Andrew Paterson, dated 15 March 2010, which had been filed in the matter of Vincent Thomas O’Donoghue (Applicant) and Minister for Immigration and Citizenship (First Respondent) and Migration Review Tribunal (Second Respondent) in the Federal Magistrates Court (File number PEG 3 of 2010). Mr Paterson’s affidavit states as follows:
“ …
1.I am a Legal Officer in the Litigation & Opinions Branch of the Department of Immigration and Citizenship (the Department) and have the care and conduct of this matter on behalf of the first respondent in the Department.
2.The facts and matters deposed to herein are true and correct to the best of my knowledge, information and belief and are based on my own personal knowledge thereof and my perusal of records and information in the possession of the Department to which I have access and with which I am familiar.
3.By letter dated 11 December 2009, the applicant made a request to the Migration Review Tribunal (the Tribunal), pursuant to the Freedom of Information Act 1982, for access to all documents in relation to his case. A copy of the applicant’s letter and request for access appears at pages 478-479 of the Court Book filed on behalf of the first respondent in this matter.
4.By letter dated 17 December 2009, the Tribunal decided to release in full all relevant documents in its possession to the applicant. Annexed hereto and marked ‘AP1’ is a copy of the letter from the Tribunal to the applicant dated 17 December 2009.
5.The Tribunal referred the applicant’s request for documents on the Department’s files to the Department and by letter dated 5 March 2010, the Department decided to partially release all relevant documents in its possession to the applicant. Annexed hereto and marked ‘AP2’ is a copy of the Department’s letter and decision record to the applicant dated 5 March 2010.
6.As appears from the decision record, the Department released the whole of the Department’s file CLF2005/4528, save for folios 27-87, 183-189 and 210 (for which full exemption was claimed) and folios 211 and 217 (for which part exemption was claimed) and the whole of the Department’s file CLF2009/111874.
7.I have perused the folios from the Department’s file CLF2005/4528 which were not released in full to the applicant and say as follows:
7.1folios 27-87 are included in the Court Book at pages 16-77; and
7.2the remaining folios 183-189, 210-211 and 217 are not relevant to the Tribunal’s decision or the applicant’s application for review.
…” (Exhibit R2)
Consideration
The Tribunal understands that, by reason of the decision under review (namely, the internal review decision of 16 April 2010 referred to in paragraph 17 above), the only documents falling within the scope of the applicant’s request for access under the FOI Act made on 14 December 2009, which have not been released in full to the applicant pursuant to the FOI Act, are:
· folio 217 in DIAC file CLF2005/4528 (partially exempt);
· folios 27-87 in DIAC file CLF2005/4528 (wholly exempt).
Folio 217 in DIAC file CLF2005/4528
Folio 217 in DIAC file CLF2005/4528 contains the text of two emails between DIAC officers, one dated 29 July 2005, the other (being a reply to the former email) dated 1 August 2005. The only part of folio 217 which the respondent submits comprises exempt matter is a mobile telephone number of a named Federal Agent (a member of the Australian Federal Police) which appears in the email of 1 August 2005.
The question for the Tribunal’s determination is whether folio 217 is an exempt document under s 41(1) of the FOI Act – that is, whether its disclosure under the FOI Act “would involve the unreasonable disclosure of personal information about any person”, within the meaning of s 41(1).
In Jorgensen v Australian Securities and Investments Commission (2004) 208 ALR 73 Weinberg J (at 88) appeared to agree with the proposition that “matters such as the personal telephone number and home address of an individual named in a document fell squarely within” s 41(1) of the FOI Act.
In the Tribunal’s opinion information comprising the name and mobile telephone number of a person comprises “personal information about [that] person”, within the meaning of s 41(1) of the FOI Act.
As regards the issue of the reasonableness or unreasonableness of the disclosure of “personal information” for the purposes of s 41(1) of the FOI Act, the Tribunal (Deputy President Hall) in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6ALN N257 said (at N259):
“51 … Whether a disclosure is ‘unreasonable’ requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.
52However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.”
In Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 Lockhart J said (at 438):
“ … The object of the Act, as expressed by s 3, is to give the ‘Australian community’ the right of access to information in the possession of the Australian Government. What is ‘unreasonable’ disclosure of information for purposes of s 41(1) must have, as its core, public interest considerations. The exemptions necessary for the protection of ‘personal affairs’ (s 41) and ‘business or professional affairs’ (s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights; rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access, provided the other conditions mentioned in ss 41 and 43 are satisfied. An examination of the other provisions of Pt IV of the Act concerning exempt documents confirms this approach.”
Heerey J said (at 441):
“ Turning to the criterion of unreasonableness prescribed by the s 41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would inure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.”
Having regard to the principles enunciated in Chandra, the Tribunal notes that:
·the relevant information, namely, a personal mobile telephone number, is clearly information which is personal to the individual concerned;
·that information is contained in an email communication by an officer of DIAC in response to an email enquiry by another officer of DIAC in relation to the status of extradition proceedings against the applicant;
·given the personal nature of the information, it is likely that the individual concerned would not wish to have that information disclosed without their consent;
·given that the information is contained in a document created over seven years ago, it is doubtful whether it has any current relevance.
Furthermore, having regard to the principles enunciated in Colakovski, the Tribunal is of the opinion that the information has no relevance to the affairs of government and that there is no public interest consideration which favours disclosure of that information.
Having regard to all relevant circumstances, the Tribunal is satisfied that disclosure of folio 217 under the FOI Act “would involve the unreasonable disclosure of personal information about [a] person”, within the meaning of s 41(1) of the FOI Act.
The Tribunal determines, therefore, that folio 217 in DIAC file CLF2005/4528 is an exempt document under s 41(1) of the FOI Act.
Folios 27–87 in DIAC file CLF 2005/4528
The Tribunal, on the basis of the abovementioned affidavit of Andrew Paterson (Exhibit R2 – see paragraph 22 above) is satisfied that folios 27–87 in DIAC file CLF2005/4528 are contained in pages 16–77 of the Court Book in the Federal Magistrates Court matter of Vincent Thomas O’Donoghue (Applicant) and Minister for Immigration and Citizenship (First Respondent) and Migration Review Tribunal (Second Respondent) (File number PEG 3 of 2010) (Exhibit R3). The Tribunal notes that a copy of that Court Book (including pages 16–77) was provided to the applicant in that Federal Magistrates Court proceeding: see O’Donoghue v Minister for Immigration and Citizenship and Migration Review Tribunal [2010] FMCA 345 at [41].
Folios 27–87 in DIAC file CLF2005/4528 (pages 16–77 of Exhibit R3) comprise the following documents:
·the Financial Statements of Alltribe Pty Ltd for the year ended 30 June 2002 (pages 16–35 of Exhibit R3);
·the Financial Statements of Neil Samuel Hope trading as Hope & Associates for the year ended 30 June 2002 (pages 36–77 of Exhibit R3).
The first question which arises for the Tribunal’s determination is whether any of the abovementioned documents is an exempt document under s 41(1) of the FOI Act.
The Tribunal notes that the abovementioned documents described as the Financial Statements of Neil Samuel Hope trading as Hope & Associates for the year ended 30 June 2002 include the individual tax return of Neil Samuel Hope for the year ended 30 June 2002. The documents comprising the individual tax return of Neil Samuel Hope for the year ended 30 June 2002 plainly contain personal information about Neil Samuel Hope. Furthermore, the Tribunal, having regard to the principles enunciated in Chandra and Colakovski (above), is satisfied that disclosure of those documents under the FOI Act “would involve the unreasonable disclosure of [that] personal information”, within the meaning of s 41(1) of the FOI Act. The Tribunal determines, therefore, that the documents comprising the individual tax return of Neil Samuel Hope for the year ended 30 June 2002, being pages 62–77 of Exhibit R3, are exempt documents under s 41(1) of the FOI Act.
The Tribunal, however, is not satisfied that any of the other documents included in folios 27–87 in DIAC file CLF 2005/4528 – namely, pages 16–61 of Exhibit R3 – is an exempt document under s 41(1) of the FOI Act.
The only other question which arises for the Tribunal’s determination is whether any of those other documents included in DIAC file CLF2005/4528 – namely, pages 16–61 of Exhibit R3 – is an exempt document under s 43(1) – more specifically, s 43(1)(c)(i) – of the FOI Act.
Each of those other documents contains “information … concerning the business, commercial or financial affairs of an organization or undertaking” (within the meaning of s 43(1)(c)(i) of the FOI Act), namely, Alltribe Pty Ltd (pages 16–35 of Exhibit R3) and Neil Samuel Hope trading as Hope & Associates (pages 36–61 of Exhibit R3). The Tribunal, however, having regard to the contents of those documents, and, in particular, to the fact that those documents relate only to the financial year ended 30 June 2002, is not satisfied that disclosure of any of those documents would involve disclosure of such information which “would or could reasonably be expected to, unreasonably affect” Alltribe Pty Ltd or Neil Samuel Hope trading as Hope & Associates “in respect of its lawful business, commercial or financial affairs”, within the meaning of s 43(1)(c)(i) of the FOI Act. Accordingly, the Tribunal is not satisfied that any of those documents is an exempt document under s 43(1) of the FOI Act.
Conclusion
The Tribunal concludes, therefore, that:
·folio 217 in DIAC file CLF2005/4528 is an exempt document under s 41(1) of the FOI Act;
·those documents in folios 27–87 in DIAC file CLF2005/4528 which are contained in pages 62–77 of Exhibit R3 are exempt documents under s 41(1) of the FOI Act;
·those documents in folios 27–87 in DIAC file CLF2005/4528 which are contained in pages 16–61 of Exhibit R3 are not exempt documents under s 41(1) or s 43(1) of the FOI Act.
Decision
For the above reasons the Tribunal varies the decision under review by determining that access to those documents in folios 27–87 in DIAC file CLF2005/4528 which are contained in pages 16–61 of Exhibit R3 be given to the applicant pursuant to the FOI Act. In all other respects the decision under review is affirmed.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop ........................[sgd]......................................
Administrative Assistant
Dated 22 January 2013
Date of hearing 17 December 2012 Applicant Self-represented Representative of the Respondent Mr A Gerrard
Office of the Australian Government Solicitor
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