Wharton and Human Rights and Equal Opportunity Commission - [2002] AATA 357

DECISION AND REASONS FOR DECISION [2002] AATA 357

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/872

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MARIE WHARTON
  Applicant
           And    HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member

Date17 May 2002
PlaceSydney

Decision      The Tribunal affirms the decision under review being the decision of Ms N Sheard, Senior Legal Officer of the Human Rights and Equal Opportunity Commission, the Respondent in these proceedings to refuse Ms Marie Wharton, the Applicant in these proceedings access to a letter written by Mr John Swinton addressed to the Human Rights Commission dated 30 November 1986 (Folio No.141 – 142 of File No. H86/181) ("the Swinton Letter"). The Tribunal affirms the decision of Ms Sheard to hold the Swinton Letter to be an exempt document pursuant to sections 41 and 45 of the Freedom of Information Act 1982 (Cth), noting that in so holding, Ms Sheard affirmed the previous decision made by Mr J Armstrong, Senior Legal Officer of HREOC to refuse access to Ms Wharton.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Freedom of Information - whether letter exempt from disclosure to Applicant – access denied on basis of ss 41 and 45 of Freedom of Information Act 1982 – decision of Respondent affirmed.

LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 35, 37, 43
Freedom of Information Act 1982 ss 11(1), 41, 45, 63(1), 64(1)
Sex Discrimination Act 1984s 112

CASE LAW
Marie Wharton v Shellharbour Area Training (Unreported, Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, President, 31 December 1990)
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Bag and Jute Co (Tw'th) Pty Ltd v Collector of Customs (1993) 18 AAR 477
News Corporation Ltd and Others v National Companies and Securities Commission (1984) 5 FCR 88
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N 257
Re Redfern and University of Canberra (1995) 38 ALD 457
Re VXV and Secretary, Department of Social Security And VXW (1992) 27 ALD 362
Re Kamminga and Australia National University (1992) 26 ALD 585
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Re Harts Pty Ltd and Tax Agents' Board of Queensland (1994) 36 ALD 403

REASONS FOR DECISION

17 February 2002 Ms G Ettinger Senior Member

The matter before the Administrative Appeal Tribunal ("the Tribunal), was the decision of Ms N Sheard, Senior Legal Officer of the Human Rights and Equal Opportunity Commission ("HREOC"), (T19), the Respondent in these proceedings to refuse Ms Marie Wharton, the Applicant in these proceedings access to a letter written by Mr John Swinton addressed to the Human Rights Commission dated 30 November 1986 (Folio No.141 – 142 of File No. H86/181) ("the Swinton Letter"). Ms Sheard had held that the letter was an exempt document pursuant to sections 41 and 45 of the Freedom of Information Act 1982 (Cth) ("the FOI Act"). In doing so, she affirmed the previous decision made by Mr J Armstrong, Senior Legal Officer of the HREOC to refuse access to Ms Wharton (T8).
The Applicant was self represented and gave oral evidence before the Tribunal. The Respondent was represented by Mr C Lenehan, Senior Legal Officer of HREOC.
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal was whether the letter of Mr John Swinton addressed to the Human Rights Commission dated 30 November 1986 (Folio No.141 – 142 of File No. H86/181) held by the Respondent, HREOC, to be an exempt document pursuant to sections 41 and 45 of the Freedom of Information Act 1982, (Cth), ("the FOI Act"), should be released to Ms Wharton in full or in part pursuant to her request under the FOI Act.
LEGISLATION
The relevant legislation in this matter is the Freedom of Information Act 1982, ("the FOI Act"), in particular sections 11(1), 41, 45, and the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), in particular sections 35 and 43. As mention was made of section 112 of the Sex Discrimination Act 1984, the relevant section has also been reproduced below.
I was mindful that pursuant to section 11(1) of the FOI Act every person has a legally enforceable right to obtain access in accordance with the FOI Act to documents which have not been declared to be exempt documents. As relevant section 11(1) of the FOI Act follows:
"Right of access
11.      (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."
I was mindful also that pursuant to section 41(1) of the FOI Act, certain documents involving unreasonable disclosure of personal information about a person could be held to be exempt pursuant to the FOI Act. As relevant section 41 of the FOI Act follows:
"Documents affecting personal privacy
41. (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).
(2) Subject to subsection (3), the provisions of subsection (1) do 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.
(3) Where:
(a) a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person; and
(b)      it appears to the principal officer of the agency or to the Minister (as
the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant's physical or mental health, or well-being;
the principal officer or Minister may, if access to the document would
otherwise be given to the applicant, direct that access to the document, so
far as it contains that information, is not to be given to the applicant but
is to be given instead to a qualified person who:
(c) carries on the same occupation, of a kind mentioned in the definition of "qualified person" in subsection (8), as the first-mentioned qualified person; and
(d)    is to be nominated by the applicant.
(4) Subject to subsection (5), where:
(a)    access to a document has been given to a person; and
(b) the document contains personal information of a medical or psychiatric nature, about the person that has been provided by, or has originated from, a qualified person acting in his or her capacity as a qualified person; and
(c)    access was not given with the qualified person's knowledge;
the principal officer or Minister (as the case may be) must notify the
qualified person that access to the document has been so given.
(5) Subsection (4) does not apply if it is not reasonably practicable to
notify the qualified person.
(6) Without limiting the matters that may be considered in deciding whether
it is not reasonably practicable to notify the qualified person, consideration
is to be given to:
(a)    the length of time since the information was provided by, or originated
from, the qualified person; and
(b)    the likelihood that the qualified person is still carrying on the same
occupation; and
(c)    the frequency with which, but for subsection (5), the principal officer
or Minister would be required to make notifications under subsection (4); and
(d)     the resources available to make such notifications.
(7) The powers and functions of the principal officer of an agency under
this section may be exercised by an officer of the agency acting within his or
her scope of authority in accordance with arrangements referred to in section
23.
(8) ..."
I was mindful that pursuant to section 45(1) of the FOI Act, a document is an exempt document if its disclosure under the FOI Act would found an action by a person other than the Commonwealth for breach of confidence.
"Documents containing material obtained in confidence
45. (1) A document is an exempt document if its disclosure under this Act
would found an action, by a person other than the Commonwealth, for breach of confidence."
Section 35 of the AAT Act authorises the Tribunal to restrict or prohibit disclosure of certain documents or other material before the Tribunal.
"35 Hearings to be in public except in special circumstances
(1AA) ...
(1) Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.
(1A) If, at a time a hearing is in public, a person participates in the hearing by a means allowed under section 35A, the Tribunal is to take such steps as are reasonably necessary to ensure that the public nature of the hearing is preserved.
(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and
(aa) give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and
(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.
(3) In considering:
(a) whether the hearing of a proceeding should be held in private; or
(b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted."
Section 43 of the AAT Act confers on the Tribunal the power to make orders in reviewing a decision of the Respondent.
"43 Review by Tribunal
(1A) ...
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
(2)Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision."
Mr Lenehan cited section 112 of the Sex Discrimination Act 1984 in connection with what he described as Mr Swinton's expectations of confidentiality by the Respondent in the handling of the Swinton Letter. As relevant the section follows:
"Non-disclosure of private information
112. (1) A person who is, or has at any time been, the Commissioner, a member of the Commission or a member of the staff assisting the Commission or is, or has at any time been, authorized to perform or exercise any function or power of the Commission or the Commissioner or any function or power on behalf of the Commission or the Commissioner, being a function or power conferred on the Commission or on the Commissioner under this Act, shall not, either directly or indirectly, except in the performance of a duty under or in connection with this Act or in the performance or exercise of such a function or power -
(a)make a record of, or divulge or communicate to any person, any information relating to the affairs of another person acquired by the first-mentioned person by reason of that person's office or employment under or for the purposes of this Act or by reason of that person being or having been so authorized;
(b) make use of any such information as is mentioned in paragraph (a); or
(c) produce to any person a document relating to the affairs of another person furnished for the purposes of this Act.
Penalty: $2,500 or imprisonment for 3 months, or both.
(2)      A person who is, or has at any time been, the Commissioner, a member of the Commission or a member of the staff assisting the Commission or is, or has at any time been, authorized to perform or exercise any function or power of the Commission or the Commissioner or any function or power on behalf of the Commission or the Commissioner, being a function or power conferred on the Commission or on the Commissioner under this Act, shall not be required -
(a) to divulge or communicate to a court any information relating to the affairs of another person acquired by the first- mentioned person by reason of that person's office or employment under or for the purposes of this Act or by reason of that person being or having been so authorized; or
(b) to produce in a court a document relating to the affairs of another person of which the first-mentioned person has custody, or to which that person has access, by reason of that person's office or employment under or for the purposes of this Act or by reason of that person being or having been so authorized,
except where it is necessary to do so for the purposes of this Act.
(3)      Nothing in this section prohibits a person from:
(a) divulging or communicating information, or producing a document, to an authority of a State in accordance with an arrangement in force under section 11 of the Human Rights and Equal Opportunity Commission Act 1981; or
(b) divulging or communicating information, or producing a document, that is, or is included in a class of information that is or class of documents that are, required or permitted by an Act to be divulged, communicated or produced, as the case may be.
(4)      In this section -
"court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
"produce" includes permit access to."

EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before documents lodged pursuant to section 37 of the AAT Act, "(the T-documents"), as Exhibit R1, and the following other Exhibits.
ITEM DATE EXHIBIT NUMBER
Transcript of the Human Rights Commission hearing 27 November 1986 Exhibit R2
Reasons for Decision, Sir Ronald Wilson; Marie Wharton and Shell Harbour Area Training Inc           31 December 1990 Exhibit R3
Letter of Mr J Armstrong to Ms Wharton & Schedule 3 October 2001       Exhibit R4
Terms of Settlement & Correspondence (Order pursuant to s 35(2) of the AAT Act) 27 November 1986 Exhibit A1

EVIDENCE OF MS M WHARTON – THE APPLICANT

Ms Wharton gave evidence about a sexual harrassment complaint made in March 1985 to the Anti-Discrimination Board as it then was. She gave details of how the Department of Employment and Industrial Relations had been restructured, and that due to such changes, her case (Marie Wharton and Management Committee, Warilla Active Youth Team CYSS, Mr B Kerr, Mr J Swinton and Department of Employment and Industrial Relations, (Unreported Human Rights Commission, Dame Roma, Mitchell, Mr P Bailey, Mr M Einfeld, 27 November 1986)), ensuing from the complaint she had made about certain of her work colleagues, did not go to hearing in December 1986. Ms Wharton said that there had been a settlement of the complaint, the terms of which had been suppressed, except for a public apology, which she said had not taken place at all.
Ms Wharton told me that she had not accepted the terms of settlement referred to above, and that they had been signed on her behalf by her lawyers.
I noted that she had been represented at the time, and was mindful that in any case, the issue of whether Ms Wharton was satisfied with the result of a settlement in 1986 of an issue then in dispute, has no relevance to the present case.
However, given Ms Wharton's reference to the settlement at this Hearing which was an open hearing, and in recognition of her concerns regarding the confidential nature of the settlement, this Tribunal made an order pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975 regarding the settlement itself and the amount of compensation paid to Mrs Wharton. This included document Exhibit A1 before the Hearing.
Ms Wharton said that there had been a further case at HREOC in February 1989 and her application had been dismissed, (Marie Wharton v Shellharbour Area Training (Unreported, Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, President, 31 December 1990)
Ms Wharton said that her complaint had been against Messrs Kerr and Swinton, and was concluded in 1985. She said that she could not therefore comprehend why Mr Swinton had written the Swinton Letter to the Commission on 30 November 1986. She said she had asked herself whether Mr Swinton had been prompted by anyone to write the letter, and expressed dismay that nothwithstanding other FOI inquiries, this letter had only come to light in the year 2000.I noted that the schedule of documents prepared for Ms Wharton at T4/16 and T10/43 dated 10 November 2000 was indeed the first time she became aware of the existence of the Swinton Letter. Ms Sheard had in her decision at T19/60 commented that: "It would appear from the file that the letter was never answered and that no action whatsoever was taken in relation to its contents." She had footnoted her comments at T19/60 as follows: "This is probably because the Human Rights Commission ceased to exist nine days later."
Ms Wharton also said that she felt her files contained incorrect information and untrue allegations, and said that any person appeared able to make allegations which damaged another's credibility. Ms Wharton referred to her case Marie Wharton v Shellharbour Area Training (supra). Ms Wharton said that her privacy was invaded by the number of documents about her, and could not understand why Mr Swinton's privacy was of concern to the Respondent.
SUBMISSIONS AND CONCLUSIONS
I had to take into account the evidence and submissions of the parties before me, and the legislation and case law to make a decision whether the letter of Mr Swinton of 30 November 1986 should be exempt pursuant to the FOI Act, or whether it could be released in part or in full to Ms Wharton pursuant to her application to this Tribunal.
In doing so, I have noted Mr Lenehan's expression on behalf of the Respondent that he understood Ms Wharton feeling aggrieved, noting also however that he was obliged, pursuant to the legislation, to argue that the Swinton Letter and associated documents be held to be exempt pursuant to the FOI Act.

In reviewing the decision of the Respondent, I was mindful also that section 11(1) of the FOI Act creates a legally enforceable right to obtain access to a document of HREOC, which of course does not extend to exempt documents. As relevant section 11(1) of the FOI Act follows:
"11. (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".
I was mindful also of section 37 of the Administrative Appeals Tribunal Act 1975 which creates an obligation on the Respondent to provide all documents in relation to the application to the Tribunal and to the Applicant, and the right of the Tribunal to request other documents, as well as the power to restrict access pursuant to section 35(2) of the AAT Act. As relevant section 37 and section 35(2) of the Administrative Appeals Tribunal Act 1975 follows:
"37 Lodging of material documents with Tribunal
(1AAA) ...
(1) Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:
(a)a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b) every other document or part of a document that is in the person's possession or under the person's control and is considered by the person to be relevant to the review of the decision by the Tribunal.
.....
(2) Where the Tribunal is of the opinion that particular other documents or that other documents included in a particular class of documents may be relevant to the review of the decision by the Tribunal, the Tribunal may cause to be served on the person a notice in writing stating that the Tribunal is of that opinion and requiring the person to lodge with the Tribunal, within a time specified in the notice, the prescribed number of copies of each of those other documents that is in his or her possession or under his or her control, and a person on whom such a notice is served shall comply with the notice.
(3) This section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.
(4) ...."
35 Hearings to be in public except in special circumstances
…
(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and
(aa) give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and
(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding."
I was mindful that the objectives of the FOI Act embodied principles such as:

To enable people to participate in the policy and decision making processes of government;
Inform people of government functions and enable them to access decisions that affect them;
Open government's activities to scrutiny, discussion, review and criticism;
Enhance the democratic accountability of the Executive.

I was mindful in reviewing the decision of the Respondent, and considering Ms Wharton's application, a balancing process was required to finally make the correct and preferable decision.
By way of background, I note here that the Human Rights Commission ceased to exist at midnight on 9 December 1986 and that it was replaced by the Human Rights and Equal Opportunity Commission established under the Human Rights and Equal Opportunity Commission Act 1986, the Respondent in these proceedings. I am mindful that Ms Wharton's complaints of sexual harrassment were initially made to the body earlier in existence, that is the Human Rights Commission, and that her complaints were subsequently also handled by HREOC. Clearly the Respondent in the application before me with regard to Ms Wharton's application for release of the Swinton Letter, is HREOC.
Before dealing with the substantive issue in this matter, that is whether the decision of the Respondent in holding the Swinton Letter to be an exempt document pursuant to the FOI Act, was the correct and preferable decision to be made by this Tribunal, I considered Ms Wharton's concerns with regard to the Thompson Documents, the Telephone Flow Sheets, the transcript of the hearing of 27 November 1986 (Exhibit R2), and other confidential documents.
THE THOMPSON DOCUMENTS AND TELEPHONE FLOW SHEETS
For the sake of completeness, and because I was mindful of Ms Wharton's disquiet with regard to actions of HREOC in her application for the release of the correspondence subject of this application, I note here that Ms Wharton had been concerned during her preparation for the hearing that she did not have all the information she required to properly prepare for it. Accordingly, and not unusually in the Tribunal's practices, a Telephone Directions Hearing between the parties and myself, took place on 21 January 2002. Ms Wharton referred to documents she named as the "Thompson Documents", and I directed the Respondent, represented by Mr Lenehan, as follows:
"1. That Mr Lenehan investigate the situation regarding the archives and the "Thompson Files" and inform Ms Wharton (supplying a copy to the Tribunal) by close of business Friday 25 January 2002.
…"
Mr Lenehan wrote to the Tribunal on 25 January 2002 (copy to Ms Wharton), with regard to the Thompson Documents and Telephone Flow Sheets as follows:
"The Commission understands that the applicant considers that material deleted from the Thompson Documents and/or the Telephone Flow Sheets Documents is or may be relevant to this application.
As stated during the Telephone Directions hearing of 21 January 2001 (sic), the Commission does not accept that that is so. This application is concerned with the internal review decision made by Ms Natalie Sheard on 18 May 2000. (see applicant's Application dated 20 June 2001). That decision dealt solely with the question of whether to grant access to a letter (of 30 November 1986) sent by Mr Swinton to the former Human Rights Commission. The Commission submits that there is simply no basis for asserting that the material deleted from the Thompson Documents or the Telephone Flow Sheet Documents could be relevant to the issue this Tribunal must decide for the purposes of this application."
Mr Lenehan also described the actions HREOC had taken with regard to the Thompson Documents and the Telephone Flow Sheets. He noted that access to the documents had been granted to Ms Wharton after the making of certain deletions had been authorised by Mr J Armstrong, a Senior Legal Officer of HREOC, pursuant to section 22 of the FOI Act, in October 2001, as follows:
· Documents that appear to be records of telephone calls received by conciliators employed by the former Human Rights Commission ("the Telephone Flow Sheet Documents"). Those documents included material concerning conversations not related to the applicant's complaint before the former Human Rights Commission.
· Documents that appear to be records of telephone conversations with Mr David Thompson, the former CYSS LMC National Industrial Officer of the Department of Employment and Industrial Relations ("the Thompson Documents").
In respect of the Telephone Flow Sheet Documents and certain of the Thompson Documents, Mr Armstrong decided (pursuant to section 22 of the Freedom of Information Act 1982 – the "FOI Act") to grant the applicant access to copies of those documents subject to the deletion of exempt material.
I was mindful of Mr Lenehan's submission which I accepted, that the Thompson Documents were brought into existence some six months before the Swinton Letter.
As to the Telephone Flow Sheets; I noted from submissions for the Respondent and accepted that the deleted parts of the Telephone Flow Sheets recorded conversations between conciliators and persons other than Ms Wharton.
I was mindful of Mr Lenehan's statement that when Ms Wharton's request for review of the decision to delete certain material from the abovenamed documents was received, HREOC was reviewing the request. Accordingly he declined to comment further, and as I decided these documents were not relevant to Ms Wharton's application before me, I did not pursue the matter further.
I accepted that the Thompson Documents predated the Swinton Letter, that Ms Wharton's requests for access to the Telehone Flow Sheets was under review, and was mindful that the application before this Tribunal was only for review of Ms Sheard's decision and release of the Swinton Letter. That then was the limit of my jurisdiction in this matter.

TRANSCRIPT OF HEARING: MARIE WHARTON AND MANAGEMENT COMMITTEE WARILLA ACTIVE YOUTH TEAM CYSS, MR B KERR, MR J SWINTON AND DEPARTMENT OF EMPLOYMENT AND INDUSTRIAL RELATIONS (UNREPORTED, HUMAN RIGHTS COMMISSION, DAME ROMA MITCHELL, MR P BAILEY & MR M EINFELD, 27 NOVEMBER 1986)

Also by way of background, I considered it necessary to note here that an inconsistency arose with regard to the transcript of the hearing of 27 November 1986 Marie Wharton v Management Committee Warilla Active Youth Team CYSS Mr B Kerr, Mr J Swinton and Department of Employment and Industrial Relations Shellharbour (Unreported, Human Rights Commission, Dame Roma Mitchell, Mr P Bailey & Mr M Einfeld, 27 November 1986) (Exhibit R2 before this Tribunal), which Ms Wharton had attended. Even though the transcript of a hearing in 1986 was strictly not relevant to the hearing before me, I was mindful that this was occupying Ms Wharton's mind, and I accepted that Ms Wharton could air her concerns, because she had felt worried about how her complaints had been handled over the years. Those concerns were compounded by the fact that there appeared to be two versions of the transcript, and that there were variations between certain pages.
Accordingly, I asked Mr Lenehan to try and supply the full transcript to the Tribunal and to Ms Wharton within seven days after the hearing. He was unable to do so, and correspondence between the parties and the Tribunal ensued. None of it was relevant to my decisionmaking in this matter, and whilst I have noted Ms Wharton's disquiet, it my duty to simply deal with her application to the Tribunal, that is, to consider pursuant to the legislation, whether the Swinton Letter should be released to her in part, in full or not at all.
OTHER DOCUMENTS
Before moving to deal with the substantive issue, I noted that the document at T6 was a letter of 18 January 2001 from HREOC to Mr Swinton referring to Ms Wharton's request for access to the Swinton Letter, and asking him for his response in regard to the release of it to Ms Wharton. The deletion of the address in that letter (deleted at T6 of the T-documents), is not in issue, because Ms Wharton stated that she did not wish to have access to Mr Swinton's address. However given my findings as expressed further on in these Reasons for Decision, I hold Mr Swinton's address to be personal information which he has an expectation will be kept confidential, and find the address to be exempt pursuant to the FOI ACT for the same reasons as those expressed below.
As to the document at T16; as stated in the index to the T-documents, this consisted of a photocopy of a file note of a telephone conversation between Ms G Sanna of HREOC and Mr Swinton on 12 March 2001. When it was disclosed to Ms Wharton that the first and a part of the third and final paragraph of the file note dealt with Mr Swinton's address, once again Ms Wharton expressed no interest in having access to Mr Swinton's address and the parties agreed, and I accepted that those paragraphs be held to be exempt pursuant to the FOI Act.
I was mindful that the second (middle) paragraph of the file note and a part of the third or final paragraph, comprised personal views of Mr Swinton with regard to the Swinton Letter. Ms Wharton wanted access, and the Respondent sought to have the whole file note held to be exempt pursuant to the FOI Act.
I considered the file note (T16) and was mindful that notwithstanding that the hearing of a proceeding before the Tribunal is mandated to be in public, (section 35(1) of the AAT Act), and notwithstanding that pursuant to section 35(2) of the AAT Act there is a power to prohibit or restrict publication of evidence or documents, to make such an order is a serious step (Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33). I have considered also the duty pursuant to section 37(1)(b) of the AAT Act for the Respondent to include all documents in its possession which are considered to be relevant to the review of the decision before the Tribunal. I am also mindful of the power in the FOI Act pursuant to sections 63(1) and 64(1) to hold documents exempt documents of this particular application such as T16 which in fact was brought into effect in connection with the application. I am mindful that there is authority for so holding (Bag and Jute Co (Tw'th) Pty Ltd v Collector of Customs (1993) 18 AAR 477 and News Corporation Ltd and Others v National Companies and Securities Commission (1984) 5 FCR 88).
I refer also to my findings below in relation to sections 4, 41 and 45 of the FOI Act in relation to the Swinton Letter, and find for the same reasons that disclosure of the information in the second or middle paragraph and a part of the third or final paragraph of the above-mentioned file note, would involve unreasonable disclosure of personal information, and a breach of confidence in regard to Mr Swinton. I hold access to the whole of the file note to be prohibited pursuant to the FOI Act and section 35(2) of the AAT Act to all but the Senior Member conducting this Hearing, the Respondent and any member of staff whose duty will involve dealing with the confidential documents relating to this hearing.
SUBMISSIONS OF MS WHARTON WITH REGARD TO THE SWINTON LETTER
I moved then to first consider Ms Wharton's submissions in regard to her application for review before this Tribunal of the decision not to release the Swinton Letter to her.

Ms Wharton expressed concern that her privacy was not protected; she said that her cases in 1986 and 1990 had been heard in public, whereas the Commission now appeared to be able to protect Mr Swinton's privacy by withholding the contents of a letter which she believed concerned her.
Ms Wharton stated that the settlement of her claim on 27 November 1986 should have made Mr Swinton happy rather than motivate him to write a letter with contents which she considered must be defamatory of her, and damaging to her.
Ms Wharton submitted that if the letter contained damaging and misleading material about her, then this would be an offence under the Sex Discrimination Act 1984.
Ms Wharton submitted that Mr Swinton had not marked his letter as being private and was now hiding behind a claim of hardship.
Ms Wharton submitted that she wanted the Swinton Letter released to her because she considered it must be defamatory and damaging to her, and that HREOC was therefore protecting itself and Mr Swinton, taking his wishes into account, but not hers. Ms Wharton said that she was shocked and surprised that Mr Swinton had written the letter because she had not seen him after May 1985, and, because she did not know the contents, she was unable to respond to it. She said that she found it strange that she only discovered the existence of the Swinton Letter written in 1986, in 2000, and was concerned it had been filed instead of being returned to him.

SUBMISSIONS OF MR LENEHAN FOR HREOC - THE RESPONDENT

I then moved to consider Mr Lenehan's closing submissions. He referred to a Chronology he had prepared, and took the Tribunal through it. By way of background he indicated that Ms Wharton had alleged that between January 1982 and 18 March 1985, when she was employed by Warrilla Active Youth Team, Community Youth Support Scheme ("CYSS"), that Messrs Bill Kerr and John Swinton had "sexually harrassed and/or discriminated against her on the grounds of sex".
As to the management of that complaint; Mr Lenehan stated that Ms Wharton had lodged a complaint, and that when the then Human Rights Commission convened in Wollongong to hear it on 27 November 1986, the matter was settled. I noted that it was this settlement referred to by Ms Wharton in her submissions and in her evidence, and it was in relation to this settlement (declared confidential as part of the terms of settlement, but disclosed at my Tribunal hearing), that I had made an order pursuant to section 35 of the AAT Act, placing a confidentiality order in relation to it.
Mr Lenehan then referred to the Swinton Letter of 30 November 1986, which he said was unsolicited, and which he submitted was "never answered and that no action, whatsoever, was taken regarding its contents." Mr Lenehan emphasised that neither the Human Rights Commission nor HREOC had considered the Swinton Letter, nor replied to it. He submitted that the only contact with Mr Swinton regarding the Letter had been the contact made to seek his views about its release after Ms Wharton had sought access to the Letter. Details of that contact appear further on in these Reasons for Decision.
Mr Lenehan referred to Ms Wharton's further complaint of sex discrimination against the Warrilla CYSS on 27 February 1989, which came before Sir Roland Wilson, the then President of HREOC, on 17 July 1990. I noted that the decision dismissing the complaint (Marie Wharton v Shellharbour Area Training (Unreported, Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, President, 31 December 1990)), was handed down on 31 December 1990, and was Exhibit R3 before the Tribunal. It did not mention the Swinton Letter.
Mr Lenehan then referred to Ms Wharton's FOI application dated 17 April 2000, seeking access to all files relating to her complaints held by HREOC, and the withholding of the Swinton Letter in the decision of 18 May 2001 (T19).
Mr Lenehan referred me to the Respondent's Statement of Facts and Contentions, which I have noted detailed the events leading to the refusal to release the Swinton Letter to Ms Wharton. I have reproduced that section below as relevant.
"10 November 2000 Letter from John Armstrong of HREOC to the applicant with attachments. It was noted in the attachments that HREOC was required to consult with Mr Swinton in relation to the Swinton Letter.
18 January 2001      Letter from Mr Armstrong to Mr Swinton seeking his views in relation to the Letter. This letter is returned to HREOC with a "Return to Sender – left address" sticker.
18 January 2001      Letter from Mr Armstrong to the applicant with attachments. Mr Armstrong notes that he has written to Mr Swinton seeking his views in relation to the Swinton letter.
14 February 2001 Letter from Mr Armstrong to the applicant (with attachments). Mr Armstrong notes that he has been able to contact Mr Swinton. Mr Armstrong further advises that he has decided not to release the Swinton Letter on the basis that it is exempt from release pursuant to section 41 of the FOI Act.
20 February 2001     Letter from the applicant to Mr Armstrong. The applicant asks that Mr Swinton be contacted and suggests that he may be working at the Wollongong Department of Housing.
21 February 2001     Letter from Mr Armstrong to the applicant. Mr Armstrong advised the applicant, inter alia, that Mr Swinton appeared not to have worked at the Department of Housing for a couple of years and that the Department of Housing had no contact details for Mr Swinton.
28 February 2001     Letter from the applicant to Mr Armstrong. The applicant suggested that Mr Swinton had moved to an address in Jamberoo. The applicant also requested "a review of the decision for documents not released."
28 February 2001     Letter from the applicant to Mr Armstrong. The applicant addressed certain matters regarding Mr Swinton's privacy.
2 March 2001         Further letter from HREOC TO Mr Swinton at the address suggested by the applicant.
5 March 2001            Letter from Mr Armstrong to the applicant. Mr Armstrong advised the applicant that the Commission had forwarded a further letter to Mr Swinton. Mr Armstrong further advised the applicant that he had:
"recommenced this part of your request as part of your original FOI request rather than as a review. If however we cannot get in touch with Mr Swinton or Mr Swinton refuses to release the letter to you, you may wish to lodge a fresh application for review."
12 March 2001          Telephone conversation between Ms Gina Sanna and Mr Swinton concerning the Swinton Letter.
13 March 2001          Mr Armstrong wrote to the applicant and advised the applicant that Mr Swinton had refused to give permission to release the Letter on the basis it concerned Mr Swinton's private and confidential information. Mr Armstrong stated that, in light of that conversation, he remained of the view that access to the Letter should be refused on the basis that:
"the release of the Letter would involve an unreasonable disclosure of personal information for the same reasons outlined to you in my letter dated 14 February 2001."

Mr Lenehan then referred me to the reviewable decision at T19, noting that the application by Ms Swinton to HREOC on 17 April 2000 had been for access to "all files held by HREOC … [including] all exempt documents." He stated that Ms Wharton had, on 10 November 2000, been granted access to all documents with the exception of the Swinton Letter. He drew to my attention that Ms Wharton had been denied access to the Swinton Letter pursuant to sections 41 and 45 of the FOI Act, after inquiries were directed to Mr Swinton "for the purpose of giving him a reasonable opportunity to make submissions in relation to whether or not the applicant should have access to the document."
The reasons given for exempting disclosure pursuant to section 41 of the FOI Act were that the release of the letter was held to be "unreasonable disclosure" of Mr Swinton's "personal information."
As to "Breach of Confidence", addressed by the decision maker at T19/60, paragraph 2.1.3; I noted that the decision maker had at footnote 16 of T19/60 written as follows:
"Although section 45 of the FOI Act specifically sets out an exemption based on a breach of confidence, I have considered this issue as part of my determination of whether an exemption pursuant to section 41 of the FOI Act is made out. Section 32 of the FOI Act provides that each exemption stands alone and must not be interpreted as limited in its scope or operation by the provisions of any other exemption and also that more than one exemption may apply to the same document."
Mr Lenehan submitted relying on Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N 257, that release of a letter written to the Commission, would breach Mr Swinton's confidentiality. I noted Ms Wharton's argument that Mr Swinton had not marked the letter "private" or "confidential". Both the decision maker and Mr Lenehan's explanations of legislation and procedures supporting their views were before me at T19/61. The decision maker wrote:
"It is true that on 30 November 1986, Mr Swinton wrote an unsolicited letter to the Human Rights Commission after the conclusion of proceedings before it, that he did not mark the letter "private and confidential" and that there is no evidence on the file of any explicit assurance given to him by the Human Rights Commission that the letter would be treated as confidential. However, in my view, the circumstances of this case indicate that there was an implicit and mutual understanding of confidentiality which existed between the Human Rights Commission and Mr Swinton at the time the information was communicated (17). At that time the Human Rights Commission had well established practices and procedures to protect personal information provided to it (18) and Mr Swinton was aware of this protection offered as he (sic) been the subject of a complaint. Mr Swinton imparted sensitive personal information to the Commission, information which was not public knowledge (19), and I am satisfied that he did so because he had an expectation that the Human Rights Commission would protect his confidentiality.
(17) See Redfern v University of Canberra above n7
(18) See section 112 of the Sex Discrimination Act 1984 (Cth)
(19) Cf Re Strang above n 14"
Mr Lenehan referred me to section 112(1), (2) and (3) of the Sex Discrimination Act 1984, submitting that the Parliament had intended with those sections of that legislation, to provide for confidential situations. Mr Lenehan submitted that Mr Swinton, who had knowledge of the legislation, would have expected to have written and maintained confidence in his correspondence. Mr Lenehan also cited Re Redfern and University of Canberra (1995) 38 ALD 457 in support of his argument.
Mr Lenehan also cited Re VXV and Secretary, Department of Social SecurityAnd VXW (1992) 27 ALD 362 comparing the following provisions section 112 of the Sex Discrimination Act 1984 with section 1312 of the Social Security Act 1991 with regard to confidentiality issues.
Mr Lenehan also addressed section 45 of the FOI Act citing Re Kamminga and Australia National University (1992) 26 ALD 585, I noted that section 45 of the FOI Act provided that:
"A document is an exempt document if its disclosure ... would found an action, by a person other than the Commonwealth, for breach of confidence."
The decision maker had relied on Re Kamminga (supra) to decide that the Swinton Letter was an exempt document, stating: "... I am of the view that the disclosure of this document would found an action for breach of confidence."
I was mindful that in Re Kamminga (supra), a full bench of the Tribunal led by her Honour Justice O'Connor, stated in relation to whether disclosure in that case could found an action for breach of confidence. The Tribunal there cited Gummow J in Corrs, Pavey, Whiting and Byrne v Collector of Customs (1987) 14 FCR 434:
"It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must be able to show that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidentiality (and that is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of that information…"
Mr Lenehan argued that pursuant to Re Kamminga (supra) and Re Redfern (supra), there were established practices and an expectation of confidence with regard to the documents there in question, as indeed Mr Swinton had in this case.
I moved then to consider the application for release of the Swinton Letter pursuant to sections 41(1), 45(1) and 22 of the FOI Act.
CONSIDERATION OF SECTION 41(1) OF THE FOI ACT
I was mindful that s 41(1) of the FOI Act authorises a decision maker to declare a document exempt if the disclosure would involve the unreasonable disclosure of personal information. As relevant section 41(1) of the FOI Act follows:
"41. (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)."
Mr Lenehan submitted that the Swinton Letter had been declared exempt because disclosure of it would, pursuant to section 41(1) of the FOI Act, involve unreasonable disclosure of personal information with regard to Mr Swinton. He said that the letter comprised of personal information and views Mr Swinton held, and when asked his permission for it to be released to Ms Wharton, he had refused.
I was mindful that section 4 of the FOI Act defines personal information as follows: "information or an opinion ... whether true or not, … about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion."
I was mindful of Ms Wharton's submissions as stated above, in particular that she thought the letter could be defamatory of her, that HREOC was protecting Mr Swinton's privacy, but that hers had not been taken into account, and that she had no way of replying to allegations if she did not know of them.
I was mindful of the Respondent's reliance on Re Redfern (supra) as authority for withholding the Swinton Letter because it contained personal opinions about the Applicant.
I noted that the subject matter of Re Redfern (supra) concerned the release of examination data and noted that in paragraphs 31 and 32 of the decision, Deputy President McMahon as he then was, stated:
"The evidence was that other personal information was contained in the responses. This included answers to questions requiring personal opinions about courses of action available and attitudes to law reform and various policy issues. These are clearly matters of personal information when linked to the identity of the author.
It would be unreasonable to disclose this information. It was obtained under the strict examination conditions of the university. These include conditions aimed at ensuring anonymity and invigilation aimed at ensuring privacy. Certainly there is, on Mr Jaggers' evidence, an expectation that responses to examination questions are to be kept confidential to University officials.. This expectation is based on long standing practice and on the published examination procedures."
I was mindful that Deputy President McMahon dealt with personal information in Re Redfern (supra) and refused access to documents, exempting them on that basis, but considered that Re Redfern (supra) dealt with a wider audience whereas in this case it was a matter, certainly of personal information and views, but of Ms Wharton by Mr Swinton. However the learned Deputy President also discussed the expectation of confidentiality based on long standing practice, and it was this aspect of his decision which applied to the expectation which in my view, Mr Swinton was entitled to hold that any correspondence from him to HREOC would be treated confidentially as indeed it was. When his permission to release the Swinton Letter was sought after considerable efforts were made to contact him, he refused, as he was entitled to do. The Tribunal is not bound by his wish in this matter but is entitled to take it into account in making the decision and has done so.
I noted Mr Lenehan's submission regarding RE VXV ( supra), mindful that the applicant in that case sought review of the refusal of access to documents pursuant to section 41 of the FOI Act about himself, written by his ex-partner when applying for a supporting parent's benefit. Deputy President Thompson as he then was, stated at 367:
"It is clear from the provisions of the Privacy Act and the Social Security Act to which I have referred above that for a decision to be made that disclosure of personal information provided to the respondent for the purposes of establishing a claim for a social security benefit would not be unreasonable there must be very strong reasons for the disclosure. The reasons stated by the applicant are on their face strong reasons. No person likes to have on the public record personal information about himself or herself which is untrue or derogatory. If there were any substantial risk that persons other than officers of the respondent dealing directly with the 'ex partner's' claim for supporting parent benefit would have access to that information, I should consider that a sufficient ground for holding the disclosure of the information to the applicant would not be unreasonable. However ss 1312 and 1313 [Social Security Act 1991] make the chance of any others having access extremely remote; there is virtually no risk that members of the general public will have access to it."
As to "unreasonable disclosure" (section 41(1) of the FOI Act); I noted that in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N 257 , Deputy President Hall as he then was, stated at paragraphs 51 and 52 which I have also considered further on in these Reasons:
"51… [I]t 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 he privacy of third parties.
52. However, 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 t to the document."
I was mindful also of Heerey J in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 which Mr Lenehan cited in support of his argument that disclosure of the Swinton Letter was unreasonable.
I noted that in Colakovski (supra), a full Bench of the Federal Court denied access pursuant to section 41 of the FOI Act to records of telephone conversations held to be exempt because they related to the 'personal affairs' of a person and that it would constitute unreasonable disclosure to release them. Heerey J stated at 441:
"Turning to the criterion of unreasonableness prescribed by the s41(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."
Mr Lenehan submitted that the disclosure of the Letter would cause Mr Swinton embarrassment, a consideration Heerey J took into account in refusing access to a document in Colakovski (supra). Mr Lenehan also submitted that neither the Human Rights Commission in its time, neither HREOC had ever dealt with the Swinton Letter. He referred me to T19/60, supporting the argument the decision maker had made when she wrote as follows:
"The contents of the letter are of no current relevance. The letter concerns events which occurred in 1986. It would appear from the file that the letter was never answered and that no action whatsoever was taken in relation to its contents."
Referring to the statement at T19/60 Mr Lenehan stated: "It is difficult to see how the disclosure of this document would advance the aims of the legislature ...". Mr Lenehan also referred to the objectives of the Act which included:

To enable people to participate in the policy and decision making processes of government;
Inform people of government functions and enable them to access decisions that affect them;
Open government's activities to scrutiny, discussion, review and criticism;
Enhance the democratic accountability of the Executive.

He submitted that it was a balancing process, and submitted that I view the disclosure in that way, taking into account also Mr Swinton's strong objection to the Applicant having access to the Letter.
Mr Lenehan submitted however that notwithstanding the decision of Ms Sheard:

the Respondent, applying Colakovski (supra), did not necessarily support Mr Swinton in his argument that release of the Letter would cause Mr Swinton hardship; and
that notwithstanding Mr Swinton's objections, applying the tests of public interest as stated in Chandra (supra), would favour disclosure.

In coming to a decision, I was mindful that Ms Wharton wanted the Swinton Letter disclosed to her because she was dismayed that it had been written at all, and understood it was about her. Ms Wharton also submitted that she was not in a position to reply to the Swinton Letter because she did not know its contents.
I took into account the submissions of the parties, accepting Mr Lenehan's submission that Mr Swinton's letter had not been considered, replied to or acted upon at all, and that it had not been mentioned in the decision of Sir Roland Wilson (Marie Wharton v Shell Harbour Area Training Incorporated (supra)). I accepted that it had limited distribution because of the time frame in which it was written and the legislative changes which brought about the demise of the Human Rights Commission and creation of HREOC.
I was mindful that pursuant to Chandra (supra), the mere fact that a document contained personal information did not render it exempt, and that the Respondent fully supported that stance, and further did not necessarily support Mr Swinton in his argument that release of the Letter would cause Mr Swinton hardship.
I noted that Deputy President Hall as he then was stated in Chandra (supra) at paragraphs 51 and 52:
"… 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 he 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 he privacy of third parties.
However, 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 t to the document."
I was mindful that to decide whether disclosure of the Swinton Letter to Ms Wharton would be unreasonable, I should consider the whole of the circumstances involving Ms Wharton and Mr Swinton, (Chandra (supra)), including:

The nature of the information in the Swinton Letter;
The circumstances in which the Swinton Letter was obtained;
The likelihood of the information being information which Mr Swinton would oppose being released;
The current relevance of the information.

I considered the nature of the information which would be disclosed and found it related to Mr Swinton' personal opinions, and personal information within the terms of the legislation. I noted that he had written an unsolicited letter following the settlement of matters between the parties in Marie Wharton and Management Committee Warilla Active Youth Team CYSS, Mr B Kerr, Mr J Swinton and Department of Employment and Industrial Relations, (supra), and that as noted above, it had not been acted upon, dealt with in any way, or replied to. I was mindful that in Re Harts Pty Ltd and Tax Agents' Board of Queensland (1994) 36 ALD 403, Senior Member Beddoe had commented on documents not acted upon in 4½ years, and stated that he would have similarly decided had the time been 3½ years. In my view, the Swinton Letter, at this stage, which had not been acted upon, neither replied to, had no relevance some15 years after the event, and should be considered exempt.
No action was taken upon the Swinton Letter which could have affected Ms Wharton or anyone else. I accepted the submission that it was simply filed in a closed file of the Human Rights Commission. As already stated, Mr Swinton, when asked, refused the request for disclosure of the contents of the letter to Ms Wharton, and in my view, the Swinton Letter, at this stage, had no relevance some 15 years after the event. The information before me indicated that the parties have had a less than friendly relationship, and I find that the public interest in facilitating and promoting disclosure of Government held information about citizens would not be compromised when weighed up with protecting the personal privacy of Mr Swinton.

I do not consider that the aims of the legislature which among others include enabling people to participate in the policy and decision making of Government; the policy of open Government and transparency in decision making; and informing citizens about Government and access to Government decisions, are in any way compromised by declaring the Swinton Letter to be an exempt document.
I was mindful also of the submissions of the Respondent with regard to Re Harts Pty Ltd (supra), where Senior Member Beddoe of this Tribunal had held that documents relating to old complaints that had never been investigated were exempt from disclosure pursuant to section 41 of the FOI Act as their disclosure after such a lapse of time would be unreasonable in the circumstances. Senior Member Beddoe stated at paragraphs 49 and 50:
"49. I am not satisfied therefore that document 20, its attachments (documents 22 to 27)) have the quality of confidentiality, nor were they given in circumstances importing an obligation of confidence. The board's practice of disclosing such complaints to the tax agent required the board to make sure it had the complainant's permission to disclose the complaint. Although it seems to have proceeded on the basis that no such permission was given, the board misunderstood the import of the complainant's letter which is document 29. That document carries with it a necessary implication that the complainant was consenting to disclosure. It follows, in my view, that of the documents 20-31 it is only the board's letter of 8 May 1990 (document 28) which can be said to be a confidential document but it cannot be said to be a document the disclosure of which would found an action for breach of confidence by a person other than the Commonwealth.
50. As to the claim for exemption under s 41 in relation to documents 20-24 and 26-28, I am satisfied that the documents each contain information which is personal information as defined in s 4(1) of the Act. For this reason I am satisfied those documents are exempt documents as defined in s 4(1) because disclosure under the Act would involve an unreasonable disclosure of personal information about the complainant. I have come to this conclusion because I am satisfied that, given the board has apparently taken no action on the complaint made in 1990, it would now be unreasonable to disclose the personal information including the complainant's identity to the applicants 4½ years after the complaint was made. I would have come to the same conclusion if the time involved were 3½ years i.e. the time between the making of he complaint and the request for access made in August 1993. ... The claim for exemption must also apply to these documents."
I was satisfied that disclosure of the Swinton Letter would involve the disclosure of personal information about Mr Swinton, and noted that the letter contained information expressing Mr Swinton's opinions about the Applicant. It was fifteen years old, and its existence should have been disclosed before, but I did not find that a reason for its release. I relied on the views of Senior Member Beddoe in Re Harts Pty Ltd (supra) as to the age of the document, the views expressed in Re Redfern (supra), Re Chandra (supra), and Re Colakovski (supra) as to the disclosure of personal information, and found that taking into account the case law, release of the Swinton letter would not be a proper exercise of the discretion pursuant to the relevant sections of the FOI Act.
I find therefore that taking into account the indicia in the legislation and all the evidence before me, that disclosure of the personal information in the Swinton Letter would be unreasonable within the terms of section 41 of the FOI Act.
I have also considered whether Mr Swinton's name or the date of the letter should be held to be exempt pursuant to the FOI Act. There was no application before me in that regard and there is nothing in the legislation compelling me to consider the name of the writer or the date of the letter exempt. I also considered whether Mr Swinton's name or the date of the letter should be dealt with by way of a confidentiality order pursuant to section 35(2) of the AAT Act, and rejected keeping that information confidential on both counts on the basis that Mr Swinton, amongst others, had been named openly as a party in the first complaint made by Ms Wharton to the Human Rights Commission, which was settled without a decision having to be made by the Members. Mr Swinton's name has appeared in the T-documents and throughout the oral evidence and submissions, and is recorded on a publicly available transcript. I am mindful that notwithstanding that the hearing of a proceeding before the Tribunal is mandated to be in public, (section 35(1) of the AAT Act), and notwithstanding that pursuant to section 35(2) of the AAT Act there is a power to prohibit or restrict publication of evidence or documents, to make such an order is a serious step (Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33). Accordingly, I did not find any grounds to restrict access to Mr Swinton's name or the date of the letter or declare that information to be exempt pursuant to the FOI Act.
CONSIDERATION OF SECTION 45 OF THE FOI ACT
I am mindful that in applying section 45(1) of the FOI Act, which follows as appropriate, I was required to consider the Swinton Letter be held to be an exempt document if disclosure would found an action by Mr Swinton for breach of confidence. As relevant section 45(1) of the FOI Act follows:
"45. (1) A document is an exempt document if its disclosure under this Act
would found an action, by a person other than the Commonwealth, for breach of confidence."
The evidence before me which I accepted was that Mr Swinton wrote the Swinton Letter unsolicited, and that he did not mark it private or confidential, although it is now clear to me from his correspondence with officers of the Respondent who sought his views about its release to Ms Wharton, that that was intended. I was mindful that he was not given any explicit assurances by officers of HREOC that the Letter would be treated confidentially, but accepted that at the time it was written, there would have been such implicit understanding, and that section 112 of the Sex Discrimination Act 1984 was known to him by virtue of his employment and the litigation with Ms Wharton in which he had been engaged.
I find therefore that the correct and preferable decision in applying section 45(1) of the FOI Act is to render the Swinton Letter exempt material not to be disclosed to the Applicant.
APPLICATION OF SECTION 22 OF THE FOI ACT
In considering any other aspects of the FOI Act which might entitle the Applicant to access to the Swinton Letter as sought, I considered section 22 of the FOI Act, which as relevant follows:
  "Deletion of exempt matter or irrelevant material
22.      (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."
I considered whether certain deletions to the Swinton Letter might suffice to render the Swinton Letter a non-exempt document pursuant to the legislation. There would be no impediment to removing the Mr Swinton's address from the top of the letter, and indeed Ms Wharton told me Mr Swinton's address was of no interest to her.
I have however found that the whole of the Swinton Letter (with the exception of his name and the date), is an exempt document pursuant to sections 41(1) and 45(1) of the FOI Act in that disclosure would involve the unreasonable disclosure of personal information of Mr Swinton, and that it could found an action for breach of confidence. Further, that pursuant to his employment and section 112 of the Sex Discrimination Act 1984, Mr Swinton had an expectation that the Swinton Letter would have been treated as a confidential document. I have noted that the Swinton Letter, which is in fact only 1.5 handwritten pages long, is written in such a way that even the removal of a particular paragraph(s) or sentence(s) would not convince me that its status as an exempt document should be disturbed.
I therefore find that having considered all relevant sections of the legislation, the aims of the legislation and the rights of both parties and the wider public interest, the Swinton Letter should remain an exempt document, and not be released to Ms Wharton.
SUMMARY OF FINDINGS
As to document T6; I was mindful that Ms Wharton did not want to have access to Mr Swinton's address, and it was agreed by the parties and accepted by me that this portion of the letter to him from the Respondent was to remain confidential pursuant to section 35(2) of the AAT Act. As a part of the Swinton Letter, it has already of course been declared exempt pursuant to the FOI Act.
As to document T16, a file note which consisted of three paragraphs; when it was disclosed to Ms Wharton that the top and last paragraph contained information about Mr Swinton's address, she agreed that she did not seek acccess to it. I was mindful a part of the last paragraph and the whole of the middle paragraph were closely connected with the Swinton Letter, and Mr Swinton's views that it not be released to Ms Wharton. I considered its release would involve unreasonable disclosure of personal information, and a breach of confidence in regard to Mr Swinton. I held that access to the whole of the file note at T16 be prohibited pursuant to the FOI Act and section 35(2) of the AAT Act, to all but the Senior Member conducting this Hearing, the Respondent and any member of staff whose duty will involve dealing with the confidential documents relating to this hearing. The same exemption as discussed in the previous paragraph applies to the address.
As to the Swinton Letter; I have found in the Reasons for Decision above, that the decision to hold the Swinton Letter an exempt document should be affirmed pursuant to sections 41(1) and 45(1) of the FOI Act with the exception of the name of the writer and the date.
DECISION
The Tribunal affirms the decision under review being the decision of Ms N Sheard, Senior Legal Officer of the Human Rights and Equal Opportunity Commission, the Respondent in these proceedings to refuse Ms Marie Wharton, the Applicant in these proceedings access to a letter written by Mr John Swinton addressed to the Human Rights Commission dated 30 November 1986 (Folio No.141 – 142 of File No. H86/181) ("the Swinton Letter"). The Tribunal affirms the decision of Ms Sheard to hold the Swinton Letter to be an exempt document pursuant to sections 41 and 45 of the Freedom of Information Act 1982 (Cth), noting that in so holding, Ms Sheard affirmed the previous decision made by Mr J Armstrong, Senior Legal Officer of HREOC to refuse access to Ms Wharton.

I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed: H. Sim        .....................................................................................
  Associate
Date of Hearing  4 February 2002
Date of Decision  17 May 2002
Applicant  Self Represented
Respondent  Mr C Lenehan
  Senior Legal Officer, HREOC