Ward and Centrelink FOI
[2004] AATA 761
•20 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 761
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/591
GENERAL ADMINISTRATIVE DIVISION ) Re MARTIN WARD Applicant
And
CENTRELINK FOI
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date20 July 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
FREEDOM OF INFORMATION – request for copies of documents – exempt documents pursuant to the Freedom of Information Act 1982 – placement of children – unreasonable disclosure of personal information – decision affirmed
Freedom of Information Act 1982 ss 11, 41, 55
Re Chandra and Minister for Immigration & Ethnic Affairs (1984) 6 ALN N257
REASONS FOR DECISION
20 July 2004 Senior Member WJF Purcell 1. This is an application for review of a decision of a delegate of the respondent (the Department) of 12 September 2003, as affirmed by an Authorised Review Officer on 10 October 2003, to refuse the applicant’s request for access to documents in relation to Colleen Highfold (the deceased), and the placement of the Ward/Highfold children (the children), pursuant to s 41(1) of the Freedom of Information Act 1982 (the Act).
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T Documents), together with the exhibits tendered by the parties. The applicant appeared on his own behalf. Ms Pugsley represented the Department.
3. On 18 August 2003 the applicant, who is in receipt of Disability Support Pension, lodged a form of request to access documents. In answer to question 6 he stated that he sought access to the following:
“Document about pension card 8/02 being issued, children upon it.
1. Documents upon the death of Colleen Ann Highfold 15/2/58 I believe deceased my next of kin her/me but I am not notified allowing my children to be illegally placed outside parental care, without Court Orders or permission.
2. Documents upon placement of Ward/Highfold children.
3. Documents upon the policy of placement or payment upon the death of a caring custody parent.” [T4/13]
4. On 10 September 2003 the applicant wrote a letter to the Department in the following terms:
“Please explain by which means and process my children mentioned on my pension card no 500-614-635C of 2003 do not appear on my same card and number of 2004.
Please explain by which means and process also with the documents to do so under the Freedom of Information Act that my children became independent of me. My children maybe independent of any parent for I believe the mother my defacto wife has died but as we lived apart I was not notified even though I was the next of kin as per medical records.
Please explain the effect of children in regards to the Social Security Act when children are independent (of parental care without court orders or parental consent).” [T7/18]
5. On 12 September 2003 the Freedom of Information Officer refused the applicant’s request for access to documents in respect of the deceased and the placement of the children; but provided the remaining documents. His letter of advice reads, in part:
“…
I have considered these facts together with subsection 41(1) of the FOI Act, which provides that a document is exempt if its release would involve the unreasonable disclosure of personal information. Personal information is defined in section 4 of the FOI Act as meaning information about an individual whose identity is apparent, or can reasonably be ascertained from the information.
I the case of a deceased person Centrelink will only release information to the executor of the estate in order for the estate to be finalised.
You have not indicated that you are authorised by the executor of the estate to have access to Colleen Highfold’s information. It is clear to me that the information concerns another identified individual and, significantly, is not central to any decision on your entitlement under the Social Security Act.
I have taken all of the above matters into consideration and have concluded that to release the information to you would be unreasonable in the circumstances. For these reasons, the information is exempt under subsection 41(1) of the FOI Act.
As part of your freedom of information request you requested information in relation to the placement of the Highfold/Ward children. As placement of children upon the death of the custodial parent is not handled by Centrelink you will need to direct your enquiries for this information to the State Government Department of Family and Youths Service.
I have enclosed copies of the Centrelink legislation in respect to Death of a Family Tax Benefit (FTB) recipient.
I have also enclosed a copy of a document from Centrelinks online documentation system dated 31 June 2002 in relation to a temporary Pension concession card being issued to you.
…” [T8/19-20]
6. On 25 September 2003 the applicant requested review of the decision, and stated as follows:
“I think the decision to exempt documents is wrong because if, as I believe, Colleen Highfold is dead I am the only one entitled to act as executor and administer her small estate under intestacy rules. I seek to finalize her estate. I have indicated I have status as executor. If you dispute this please tell me why and who has acted as executor and administered Colleen Highfold’s estate if she is in fact dead. If another individual has acted please advise me who he/she is and him of his/her duty to perform, fairly, impartially and notify those people with an interest in the estate, in the exercise of this function, executory or administration.
Has the other individual, here possibly named as executor with duties to perform, been notified of my request for information? giving him/her a right to respond and seek exemption, if not then disclosure may be reasonably presumed. I believe your decision is central to my entitlement under the Social Security Act.
What is your definition of “placement”? What inter-agency policy (ie FAY’s) agreement is in place? Have FAY’s had any involvement in this case?
May I be provided with the following, page 2 of Are you a Parent or Guardian? Family Tax Benefit (FTB) child of a person. Processing a claim to receive the Family Assistance entitlement of a deceased person. Initial contact after the death of a potential FTB customer. Family Tax Benefit child of a person; Death of a Child Care Benefit (CCB) customer. Bereavement and Parenting Payment. Information Booklet for Parenting Payment on page 1 of “Are you needing help after someone has died”/Death of a FTB”. I seek access to the xxx following link which was currently unavailable to external audiences xxx. After which is the word “Extra” but there is no examples as claimed, before other related links appears. May I be provided with examples of “Extra”.
Could you as I have requested, provide documents about the issue of my 2002 Disability Support Pension card which included some of my children on it.
If Colleen Highfold is in fact dead then I am the only appropriate person for the return of my dependant children. It may be that other people have my dependant children. I have not volunteered consent that they do. There is no agreement formal or informal upon care and custody of my children. It may be that claims have been made that are in fact not true.” [T9/22]
Accompanying this request was an undated handwritten note in the following terms:
“I Colleen Highfold authorise Martin Ward to ask questions on my behalf to advocate for me. Colleen A Highfold”
This note was copied, date stamped as received on 25 September 2003 at Centrelink, Currie Street, and annotated “orig NOT sighted vsy”
7. On 10 October 2003 a review officer affirmed the earlier decision, and in the course of his letter of advice stated:
“…
You have advised me that your former spouse was in receipt of Centrelink payments. I am unable to confirm or deny that this is the case. If she was in receipt of a payment, any information that she may have provided to Centrelink, including any reference to you, concerns her own personal affairs. As you can see, section 41(1) prevents the release of information about a person’s personal affairs.
Whilst you have supplied a copy of an undated “authority” allegedly signed by your former partner, that document simply says that you are authorised to ask questions and advocate on her behalf. If does not authorise you to be given copies of any documents related to dealings she may have had with Centrelink and it only allows you to ask questions and advocate. I must also consider the fact that you have been estranged from her for some years now. In practical terms, once a couple separate, an authority such as the one you have supplied would become null and void. Ultimately I am not prepared to provide you with copies of any documents held by Centrelink, nor am I willing to provide you with any answers about dealings Centrelink may have had with your former partner.
I have noted your views that you believe that, assuming she is deceased, you should be appointed as the executor of her estate and therefore be allowed access to whatever information Centrelink has in its possession. Once again, because you were estranged from Colleen, your appointment as an executor is not automatic, therefore I cannot not accept your argument. It may be that if she is deceased, she could have signed a will and appointed another person as executor of her estate prior to her death. You are not to know whether this has occurred and it is not a matter that you have any authority over. I must also point out that Centrelink has nothing to do with the appointment of executors or the resolution of deceased estates. I suggest you contact the State Public Trustee to seek out relevant information.
You have also raised other questions concerning the custody of your children. Again, I am unable to release any documents about them because you are not authorised to be given any of that information. The children are no longer in your custody and you are not exercising any daily care of the children, therefore you have no automatic right of control over their affairs. Whilst I accept that you may still love your children and demonstrate concern about them, this does not authorise you to act on their behalf.
I reiterate that Centrelink has not been involved in determining custody arrangements for your children. Centrelink does not have the legal authority to make such decisions, therefore the documents you believe were created by Centrelink do not exist. If Centrelink receives advice that children have left one person’s custody and entered another person’s custody, the payment amounts of Family Tax Benefit are changed and nothing more is done by Centrelink. Again I can not provide you with information about these issues as the matter does not concern a change to your payments.
Mr Belcher advised you that child custody matters are handled by the State Department for Family and Youth Services, and my advice is also that you should contact them concerning your children’s whereabouts and custody.
In response to your other questions about information pamphlets, I have enclosed two publications for your information. They are “Are you a parent or guardian?” and “Are you needing help after someone dies?”. If you require more detailed policy information concerning entitlement to payments, I suggest you visit the Family and Community Services Internet site at and search for “legislation” in the menu.
I have decided that the documents you have requested are exempt from disclosure under subsection 41(1) of the FOI Act.
…” [T11/25-26]
The claimed exempt document is dated 19 October 1999. It is a computer file note. The reasons for the exemption is stated as “This document contains personal information of third parties”.
8. Section 11(1)(a) of the Act provides:
“Subject to the Act, every person has a legally enforceable right to obtain access in accordance with the Act to a document of an agency, other than an exempt document;”
Section 41(1) of the Act provides:
“(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).”
9. The applicant submits that the Secretary of the Department must have made a decision as to who had the care of the children, and who received the Social Security payments. The Secretary is not making a lawful payment therefore, and is acting outside his authority. He has no power to pay Family Tax Benefit to people who are not the legal guardians, when the Department knows that the applicant is the father, and it has paid the applicant for the children over many years. Disclosure of the claimed exempt document would show the illegal basis upon which these payments have been made, in the absence of custody orders.
10. The applicant, in his statement in support of his application for review, stated that there would be no changes to these third parties, as their identities are known to him, and he is sure that they would have no objection to him having access to documents concerning them. These people should be asked in an appropriate way. He questions their right to have care of the children, and whether the payments to them of Family Benefit and Family Tax Benefit are lawful. He submits also that his benefits are affected by this application for review, and the matter should have gone to the SSAT. He would then have obtained the assistance of a public advocate. He maintains also that there should be a custody order, and citizens should know how Government handles these matters. The applicant, in addition, seeks an order that he be appointed the executor of the deceased’s estate.
11. The Department contends that the applicant is not in possession of any instrument or Court Order declaring him to be the legal representative of the deceased, or of her estate. For the purposes of the Act, and in relation to the applicant’s request, the deceased is properly considered to be a third party. The applicant applied for access to third parties’ documentation that may be in the possession of Centrelink. Any such documentation would involve unreasonable disclosure of personal information in relation to the deceased, and to other third parties. It is contended therefore, that any such documents are exempt documents pursuant to s 41(1) of the Act, and access has properly been refused. In addition, it is contended that the applicant would also be considered a third party in relation to any other person whose details may be contained in any Centrelink records held in relation to the deceased.
12. The applicant, who is nearly 52 years of age, is father of the deceased’s nine living children, five of whom, he says, are under the age of 18 years. The applicant says that in late 1997 he and the deceased (who was Aboriginal) and their children were evicted from their home in the Aboriginal community at Koonibba, via Ceduna, having allegedly “abandoned” Koonibba (the Mission). The history outlined by the applicant at the Hearing is difficult to follow, but I understand that when the family moved away from Koonibba, the deceased went to Western Australia, while the applicant remained with the children in Adelaide. When the deceased returned, she took five of the children to Whyalla, and the applicant had two of the children in Adelaide. He returned these children to the deceased in mid 1998. He said that at the time of the deceased’s death on 30 July 1999, he was either in gaol, or under strict bail conditions in Adelaide. He says that he was subsequently cleared of these criminal charges. He was not notified of her death; the children were placed with their older siblings and members of the deceased’s extended family at the Mission.
13. The applicant says that he has visited the Mission; that he knows the people who are looking after his children, inappropriate people who are getting the family payments. He has demanded from these people the return of his children. They have refused, and there has been physical violence between the applicant and these people. The applicant describes them as unsophisticated, ill-educated people, who are receiving family payments, and although they acknowledge that he is the father of the children, they will not hand the children over, as they have been told that the applicant is unfit to look after the children, and the children would be dispersed among other people because the applicant is unable to look after them. The applicant maintains that as the father of the children, and legal guardian, it should be natural justice that he, who can best care for the children, should have the children with him, and should be paid the family benefits to maintain them.
14. The applicant seeks an order that he be appointed executor of the deceased’s estate. He produced a letter however, from the Department of Human Services advising that it was responsible for administering the estate. Attached to the letter was a Delegation of Authority from the Public Trustee to the Department of Human Services of 30 November 1998. This letter refers to the fact that the deceased’s net estate was no greater than $3,000; and that the Department of Human Services had paid the deceased’s funeral expenses, and would not be seeking to recoup the monies, as the deceased had a number of minor dependants [Exhibit A5].
15. The Tribunal has no jurisdiction to grant the applicant’s request that he be appointed executor of the deceased’s estate; and clearly the Department of Human Services has been authorised by the Public Trustee to administer her estate, and the matter has been finalised. The applicant said in evidence that he had attended at the South Australian Probate Office, and been informed that he could not obtain Letters of Administration without paying the fees. He says that he has been to the Public Trustee, but that they have no records of the deceased, despite the information contained in Exhibit A5.
16. In relation to the applicant’s assertion that this matter should have been reviewed by the SSAT before it came before the Tribunal, the Act provides that applications for review come direct to the Tribunal. Section 55 of the Act, as far as is relevant for the purposes of this review, provides:
“(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
…
(4) Notwithstanding section 29 of the Administrative Appeals Tribunal Act 1975, the period within which (subject to any extension granted by the Tribunal) an application under subsection (1) of this section is to be made in respect of a decision is:
(a) except where paragraph (b) or (c) applies - the period commencing on the day on which notice of the decision was given to the applicant in accordance with section 26 and ending on the sixtieth day after that day;
…”
17. The applicant gave evidence that he had lodged an application for custody of the infant children in the Family Court of Australia (the Family Court). He had appeared before the Registrar, Mr Radzevicius, who refused the application; and then before Her Honour Justice Dawe, who had ordered that a separate representative of the children be appointed. The applicant said that he had attempted to discuss the matter with the children’s representative, who he was told was independent, but subsequently he became the carer of his mother, and did not pursue the matter further at that time. He says that more recently he had approached the Aboriginal Legal Rights Movement, and they said they would sort the matter out and seek custody or access to the children, but nothing has happened. The applicant said in evidence also that he had subsequently approached the Family Court, and the counter officers had advised him to lodge a fresh application, but he says that he does not wish to do this, but to pursue the earlier application in due course.
18. The applicant, in support of his assertions, produced at the Hearing a copy of a letter from the State Coroner’s Office of 18 August 1999, in which it is stated that the Coroner’s Office records indicate that he had been named as next of kin, and that the Office would write to him again advising of the cause of death. Although the applicant acknowledges in his letter to the Department of 10 September 2003 that he and the deceased lived apart, he maintains that he was not advised of the deceased’s death whilst he was in gaol or on strict parole. The Coroner’s Office letter however, was sent to him only 19 days after her date of death, 30 July 1999.
19. The Department’s records disclose that between 1 January 1993 and 19 October 1995, the applicant has been paid benefit/pension as a “separated person”; and from 19 October 1995 as a “single person” [Exhibit R1]. There is no record of him being in receipt therefore, of benefit/pension at the married rate since January 1993. He did not stand in the position of partner or executor, and is considered by the Department therefore, to be a third party. Although the applicant’s rambling submissions are difficult to decipher, I understand that he is not now seeking the identity of the carers of his children, details which are well known to him. He is seeking, in effect, documents containing the information upon which the Department approved payment to these persons, of Family Allowance and Family Tax Benefit, in respect of the children, so that he can challenge that decision, and become the person to whom such Family Allowance and Family Tax Benefit is paid.
20. The applicant asserted in his evidence that these people are willing to enable the information to be provided, but are illiterate and unsophisticated. They could however give oral instructions to Departmental officers if that was their wish, in the same way as they complete the information required regularly by the Department when reviewing eligibility for payment of benefits in relation to the children.
21. The question remains as to whether the document is an exempt document, pursuant to s 4(1) of the Act. In the matter of Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 Deputy President Hall said at paragraph 51:
“51. … s.41(1) makes it clear that it is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. 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.”
22. In this matter the children’s carers have been looking after them since soon after 30 July 1999. They have made claims for Social security payments in respect of the infant children, and have been in receipt of payments for nearly 5 years. They have provided confidential information to the Department on a regular basis. I am satisfied that these persons would have expected that their identity and the information provided would be kept confidential. The applicant claims that he knows now, the identity of some, if not all, of these persons. But such identification, on the applicant’s own evidence, has led to physical confrontation, and denial of the applicant’s requests to hand over the children. Release of the information to the applicant would lead, in my view, to positive, not speculative identification of each of the children’s carers, and to the nature of payments and the basis upon which those payments are made. As stated earlier in this paragraph, I am satisfied that these persons would have expected that this information would remain confidential; and that in these circumstances disclosure would involve the unreasonable disclosure of personal information about these persons. It is appropriate in these circumstances therefore, that access to the document be refused.
23. For these reasons the Tribunal affirms the decision under review.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDate of Hearing 2 July 2004
Date of Decision 20 July 2004
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Ms A Pugsley
Solicitor for the Respondent Centrelink Service Recovery Team
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