Wilson and Australian Information Commissioner (Freedom of Information)
[2022] AATA 1468
•6 May 2022
Wilson and Australian Information Commissioner (Freedom of Information) [2022] AATA 1468 (6 May 2022)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2021/2280
Re:John Wilson AM
APPLICANT
AndAustralian Information Commissioner
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:6 May 2022
Place:Melbourne
Pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) the publication or other disclosure of the redacted information in the supplementary Tribunal documents lodged on 16 March 2022 as set out in Annexure A below is restricted to:
(i)the respondent, the respondent’s legal advisers and other persons who are authorised by the respondent to have access to the information; and
(ii)Members and staff of the Tribunal including, the Tribunal’s transcription service provider, performing duties in relation to the proceeding.
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Deputy President Britten-Jones
CATCHWORDS
FREEDOM OF INFORMATION – request for confidentiality order over supplementary Tribunal documents – claim disclosure of documents would have a substantial adverse effect on the proper efficient conduct of the operations of an agency – claim disclosure of documents would prejudice personal privacy – whether documents replicate or reveal exempt information – consideration of procedural fairness – confidentiality order granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth)
CASES
Fitzgibbon v Turnbull [2017] FCA 968
News Corporation Limited v National Companies and Securities Commission (1984) 5
FCR 88
OJG Engineering Pty Ltd and Commissioner of Taxation [2019] AATA 4293Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247
SECONDARY MATERIALS
Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Cth).
REASONS FOR DECISION
Deputy President Britten-Jones
6 May 2022
INTRODUCTION
This is an interlocutory application for confidentiality over the supplementary Tribunal documents lodged on 16 March 2022 under s 37(1)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act) by the Australian Information Commissioner (the respondent).
The respondent seeks an order pursuant to section 35(4) of the AAT Act restricting the publication and disclosure of the redacted portions of the supplementary Tribunal documents (confidential material) to Members and staff of the Tribunal and to the Respondent and her representatives.
The result of the order requested will be that Professor John Wilson AM (the applicant) will not be permitted to view the redacted portions of the documents until, and if, a decision is made to grant access.
BACKGROUND
The applicant made a request to access documents from the Respondent pursuant to the Freedom of Information Act 1982 (Cth) (FOI ACT) on 21 May 2020 consisting of correspondence and transcripts of meetings with named individuals relating to a privacy complaint made to the Respondent.
On 22 June 2020, the respondent decided to refuse to grant the Applicant access to the entirety of the documents on the basis that the documents were exempt in full under s 47E(d) of the FOI Act (the FOI decision).
On 20 August 2020, the applicant applied to the Australian Information Commissioner (IC) for review of the FOI decision under s 54L of the FOI Act.
On 18 March 2021, a delegate of the IC declined to undertake a review of the decision under s 54W(b) of the FOI Act. Pursuant to the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act (FOI Guidelines) at [10.88]-[10.89]:
The Information Commissioner can decline to undertake a review if satisfied ‘that
the interests of the administration of the [FOI] Act make it desirable’ that the AAT
consider the review application (s 54W(b)).
On 13 April 2021, the Applicant lodged an application for review in the Tribunal seeking review of the respondent’s decision dated 22 June 2020.[1]
[1] In the course of the review some documents were removed from scope by agreement between the parties.
The parties exchanged respective submissions. The respondent’s application for confidentiality over the supplementary Tribunal documents was heard at an interlocutory hearing on 5 April 2022.
On 14 April 2022, following the interlocutory hearing, the respondent provided the Tribunal and the applicant with an aide memoir concerning the confidential material that is the subject of the Tribunal’s decision. That aide memoir is reproduced in part as Annexure A to this decision and sets out the redacted sections of the supplementary Tribunal documents under consideration.
LEGAL PRINCIPLES
FOI Act
It is a general principle of the FOI Act that an individual has a right of access to documents held by an agency unless the document is an ‘exempt document’ as defined by s 4 of the FOI Act.
Relevantly, an ‘exempt document’ is one that is exempt for the purposes of Part IV of the FOI Act and encompasses documents subject to claims governed by s 47E(d) and 47F, otherwise known as public interest conditional exemptions.
Section 4 of the FOI Act also defines ‘exempt matter’ to mean “matter the inclusion of which in a document causes the document to be an exempt document.”
Section 47E(d) of the FOI Act relates to documents which disclose certain operations of agencies and provides:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
…
(d) have a substantial adverse effect on the proper and efficient conduct of
the operations of an agency.
Section 47F of the FOI Act relates to documents which disclose personal privacy of individuals and provides:
General rule
(1)A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
Confidentiality Orders
The Tribunal has the power to make an order restricting publication or other disclosure of material under s 35 of the AAT Act. Section 35(4) of the AAT Act provides:
(4) The Tribunal may, by order, give directions prohibiting or restricting the
publication or other disclosure, including to some or all of the parties, of
information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i) information that comprises evidence or information about
evidence;
(ii) information lodged with or otherwise given to the Tribunal.
The FOI Act sets out what matters the Tribunal must have regard to when deciding whether to make an order under section 35(4) of the AAT Act. Section 63(1) of the FOI Act relevantly provides:
(1) In determining whether the Tribunal is satisfied that it is desirable to make an
order or orders under subsection 35(2), (3) or (4) of the Administrative Appeals
Tribunal Act 1975 , the Tribunal must:
(a) have regard to:
(i) the necessity of avoiding the disclosure to the applicant of
exempt matter contained in a document to which the proceedings
relate;
Procedural fairness
The AAT Act sets out in section 35(5) that the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents
received in evidence by the Tribunal should be made available to the public and to
all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made
available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal
is to pay due regard to any reasons in favour of giving such a direction, including,
for the purposes of subsection (3) or (4), the confidential nature (if applicable) of
the information.
Section 39 of the AAT Act provides:
(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
Section 39 of the AAT Act codifies the general principles of procedural fairness and natural justice and requires that parties to a Tribunal proceeding be given a reasonable opportunity to present their case and inspect documents. Importantly, however, section 39 is subject to, among other things, any order that is made under section 35.
In Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247 (Pochi), at 273, Brennan J said:
...an applicant’s interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. In R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766 Lord Denning MR acknowledged that the public interest in confidentiality can be paramount. He said at 782: ‘When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice.’
Section 63(2)(b) of the FOI Act provides:
(2) Notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975:
…(b) the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his or her representative where it is necessary to do so in order to prevent the disclosure to the applicant of matter or information of a kind referred to in paragraph (1)(a).
In News Corporation Limited v National Companies and Securities Commission (1984) 5 FCR 88, the applicant sought access to a schedule of documents which was said to disclose matters claimed to be exempt under the FOI Act. Portions of the hearing were held in the absence of the applicant and his representative. The Tribunal subsequently affirmed the decision under review. On appeal, the majority of the Full Federal Court held that there had been no denial of procedural fairness. Fox J said at 96-97:
Section 35(2) of the AAT Act is conditioned by the state of satisfaction of the Tribunal. It seems plain, and must have been the intent of s 63(1), that subs (2) applies, among other situations, to the maintenance of privacy in relation to an exempt document. To that end it can exercise the powers in that subsection (see also s 64(1) of the Act). The particular documents to which access was sought were the schedules produced by way of evidence before the Tribunal, for they contained a description of the documents, one by one. It is apparent from the evidence that to disclose the schedules would disclose the existence of the documents and their nature, would go a long way towards giving access to them (cf s 63(2) of the Act) and might well convey to the applicants, in relation to most documents, all they wished to know. It is not necessary to consider whether the schedules became exempt documents themselves (see s 25(1)).
I am of the view that s 35(2) provided a power which was available to be used, and am not satisfied that there was any error of law affecting its exercise. Section 39, which was relied on, is expressly made subject to s 35. The claim based on denial of natural justice must therefore fail.
In Fitzgibbon v Turnbull [2017] FCA 968, Robertson J said at [61-62] concerning s 64 of the FOI Act:
In my opinion the legal representatives of a party are in no different position to a party: see News Corporation Limited at 96 (per Fox J) and 103 (per Woodward J) which I set out at [70] below.
I do not accept the applicant’s submission that s 39 of the AAT Act operates unless, and at least until, s 64 of the FOI Act is engaged by actual production of the relevant document to the Tribunal, and that s 39 of the AAT Act required that his lawyers be given access to a copy of the document. That construction would pluck s 39 out of its statutory context, in particular s 64 of the FOI Act.
In OJG Engineering Pty Ltd and Commissioner of Taxation [2019] AATA 4293, Deputy President Boyle noted, at paragraph 30, that it is common in FOI matters before the Tribunal that an applicant will not have access to the documents that are the subject of the FOI request, but that this “does not mean that there is a denial of procedural fairness, it is simply an obvious necessity given the nature of the application”. The Deputy President considered it was appropriate to make a confidentiality order under s35(4) of the AAT Act.
CONSIDERATION
The applicant seeks production of documents consisting of correspondence and transcripts of meetings with named individuals relating to a privacy complaint made to the Respondent. The Respondent’s decision was to refuse access to all the documents identified in response to the access application on the basis they were exempt in full under s 47E(d) of the FOI Act. The Applicant sought internal review with the IC who subsequently declined to undertake a review under s 54L of the FOI Act. The Respondent contends on external review that the documents are not only exempt under s 47E(d) but also s 47F of the FOI Act.
The supplementary T documents contain letters and email correspondence in January and February 2022 between third parties affected by the applicant’s request and the Australian Government Solicitor. The names and email addresses of these affected parties have been redacted. Information about the complaint has also been redacted.
This current application is for confidentiality orders in respect of redacted material in the supplementary T documents restricting access to the Applicant at least and until the Tribunal decides on the substantive matter. The Tribunal has been provided with an unredacted copy of the supplementary T documents for the purpose of making an assessment.
The applicant contends that before making an order for confidentiality I should be satisfied that the redacted material is exempt matter which requires consideration of ss 47E(d) and 47F of the FOI Act. The Applicant further contends that the documents are not ‘document[s] to which the proceedings relate’ for the purposes of s 63(1)(a)(i) of the FOI Act.
I do not accept this further contention. The supplementary T documents were lodged to assist the Tribunal in determining the substantive matter and plainly relate to the current proceedings.
As detailed above, there are certain proceedings in the Tribunal that necessitate information available to the Tribunal being withheld from the Applicant. The case of Pochi recognises that, in some cases, procedural fairness can be subject to a superior interest. It is a typical situation in the Freedom of Information Division that the Tribunal and the respondent have before them the documents claimed to be exempt and the applicant does not. This is not a denial of procedural fairness but a necessity of the type of application. To release information that refers to or replicates information claimed to be exempt prior to determination of the application would defeat the purpose of the substantive proceedings.
In determining whether to make an order under s 35(4) of the AAT Act I must have regard to the necessity of avoiding the disclosure of exempt matter: s 63(1)(a)(i) of the FOI Act. The reference to exempt matter does not require that I satisfy myself that the redacted material is exempt matter. The legislation requires that I have regard to the necessity of avoiding the disclosure of exempt matter. It does not require me to consider the terms of ss 47E(d) or 47F. That is a matter for the final hearing. In order to avoid the disclosure of any exempt matter I would avoid the disclosure of the redacted material if it replicates any material claimed to be exempt matter. If I were to allow disclosure of such material, then I would be acting contrary to my obligation to have regard to the necessity of avoiding the disclosure of exempt matter.
The redacted portions of the documents in dispute can be grouped into two categories:
(b)Documents claimed to be exempt matter that replicate or identify information claimed to be exempt information;
(c)Documents claimed to be irrelevant or out of scope of the access application.
Category A documents
As described above, the Category A documents[2] consist of personal information of third parties and correspondence between those third parties and the Australian Government Solicitor.
[2] T12, p 60, T13, p 64, T14, p 68, T15, p 72, T16, p 76, T18, p 84, T19, p 88, T20, p 92, T23, p 100, T23, pp 102-103, T25, pp 105-106, T26, pp 107-110, T27, p 111, T28, p 114, and T29, pp 118-119.
For the reasons set out above, it is not necessary for the Tribunal to determine, at this stage, whether the documents claimed to be exempt by the Respondent, are in fact exempt under Part IV of the FOI Act. It is instead sufficient for the Tribunal to reach a determination that the redacted material replicates or reveals material claimed to be exempt under the FOI Act.
As stated above, to identify or release the supplementary T documents at this stage of the review would defeat the purpose of the substantive review. I am satisfied the documents replicate or reveal the contents of an exempt document.
Category B documents
The Category B documents,[3] consist of personal information relating to parties not contained within the documents claimed to be exempt by the Respondent. The documents themselves have largely been provided to the Applicant and only small portions of irrelevant personal information has been redacted. I am satisfied the redacted portions of these pages are irrelevant and that no further access could be provided pursuant to s 22 of the FOI Act.
[3] T22, p 98 & T24, p 104.
CONCLUSION
I have read the redacted portions of the supplementary T documents and compared them to the relevant extracts of the documents claimed to be exempt by reference to the aide memoir dated 14 April 2022. Having done so, I am satisfied that the redacted portions of the Category A documents replicate or reveal the contents of a document claimed to be an exempt document. With respect to the redacted portions of the Category B documents I am satisfied that they are irrelevant.
For the reasons set out above, the Tribunal considers it appropriate to make a confidentiality order restricting the publication or other disclosure of the confidential material.
DECISION
Pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) the publication or other disclosure of the redacted information in the supplementary Tribunal documents lodged on 16 March 2022 as set out in Annexure A below is restricted to:
(i)the respondent, the respondent’s legal advisers and other persons who are authorised by the respondent to have access to the information; and
(ii)Members and staff of the Tribunal including, the Tribunal’s transcription service provider, performing duties in relation to the proceeding.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
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Associate
Dated: 6 May 2022
Date(s) of hearing: 5 April 2022 Date final submissions received: 14 April 2022 Counsel for the Applicant: M. Rivette Solicitors for the Applicant: Hunt & Hunt Advocate for the Respondent: L. Butler Solicitors for the Respondent: Australian Government Solicitor ANNEXURE A
Confidential material in supplementary Tribunal documents
Basis for confidentiality order over confidential material
T12, p 60
Exempt matter – personal information of an affected third party
T13, p 64
Exempt matter – information about the complaint
T14, p 68 Exempt matter – personal information of an affected third party and information about the complaint
T15, p 72
Exempt matter – personal information of an affected third party and information about the complaint
T16, p 76
Exempt matter – personal information of affected third party.
T18, p 84
Exempt matter – personal information of an affected third party
T19, p 88
Exempt matter – information about the complaint
T20, p 92
Exempt matter – personal information of an affected third party
T22, p 98 Irrelevant to this proceeding T23, p 100 Exempt matter – personal information of an affected third party T23, pp 102-103 Exempt matter – personal information of an affected third party and information about the complaint T24, p 104 Irrelevant to this proceeding T25, pp 105-106 Exempt matter – personal information of an affected third party and information about the complaint T26, pp 107-110 Exempt matter – personal information of an affected third party T27, p 111 Exempt matter – personal information of an affected third party and information about the complaint T28, p 114 Exempt matter – personal information of an affected third party T29, pp 118-119
Exempt matter – personal information of an affected third party and information about the complaint
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4
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