FEDERAL COURT OF AUSTRALIA

Applicant ABCD v Refugee Review Tribunal [2006] FCA 908

Freedom of Information – personal information of author of a document to which access is sought – where applicant claims to know identity of author of document – where applicant also engaged in proceedings in Refugee Review Tribunal – claims that documents sought affect the question of whether that applicant has been accorded procedural fairness in the RRT proceeding

Held – no error in approach of Administrative Appeals Tribunal in its conclusion that the documents were exempt under the Freedom of Information Act.

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Freedom of Information Act 1982 (Cth) ss 41 and 45

Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429

Commissioner of Police v the District Court of New South Wales and Perrin (1993) 31 NSWLR

Corrs Pavey Whiting and Byrnes v Collector of Customs (Vic) (1987) 14 FCR 434.

Kristoffersen v Department of Employment Workplace Relations and Small Business [2003] FCA 55

Re Kamminga and Australian National University (1992) 26 ALD 585

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363

Ward v Centrelink [2005] FCA 73

APPLICANT ABCD OF 2005 v REFUGEE REVIEW TRIBUNAL

NSD 580 OF 2005

ALLSOP J

20 JULY 2006

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The proceeding stand over to 8 August 2006 to deal with the question of costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Administrative Appeals Tribunal (the “Tribunal”) on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”). In that decision the Tribunal affirmed the decision of the Refugee Review Tribunal (the “RRT”) in which the RRT had concluded that certain documents were exempt from disclosure under ss 41 and 45 of the Freedom of Information Act 1982 (Cth) (the “FOI Act”).

2                     The issue before the AAT was whether two letters sent to the RRT by a third party and three file notes of discussions between an officer of the RRT and the third party concerning the possible release of the document were exempt under either or both ss 41 and 45 of the FOI Act.

3                     The Amended Notice of Appeal stated the following under parts 2 and 4 headed “Questions of Law” and “Grounds”.

2.      The Questions of Law Raised on the Appeal:

A)     Whether a document contains personal information about a person for the purposes of s41(1) of the Act where the only information about that person contained in the document is the person’s identity as the author of the document.

B)     Whether (given the undoubted right of applicants to the RRT to be given access to documents relating to their application) a document provided to the RRT by a person, in relation to an application to the RRT by other persons, could have the quality of confidentiality necessary to be exempt under s 45 of the Act.

C)    Whether, in considering whether disclosure of the documents in question would involve the unreasonable disclosure of personal information, the Tribunal was required to have regard to the public interest in applicants to the RRT being enabled to test whether they had been accorded procedural fairness when not given an opportunity to deal with material presented to the RRT.

D)    Whether the concern of an applicant to the RRT to know what matters had been put against them in a document placed before the RRT is capable in law of constituting a threat that the information in the document would be used to the detriment of a third party.

E)     Whether the Tribunal erred in not determining whether the information in question was information about an individual whose identity was known to the Applicant.

F)     Whether the Tribunal erred in finding that section 41(1) of the Act was of application without a finding that the documents in question contained information about the third party, and not simply “personal” to that party.

G)    Whether the Tribunal erred in finding that disclosure of the exempt information constituted “unreasonable disclosure” which would cause “distress” to the third party, without considering the effect of such distress on the weighing of the public interests in disclosure.

H)    Whether the Tribunal erred in finding that disclosure of the exempt information constituted “unreasonable disclosure” which would cause “distress” to the third party, in circumstances in which the evidence upon which such a finding of distress was not even alluded to.

I)       Whether the Tribunal erred in finding there was no “good public purpose” to achieve in releasing the information when:

i)            The applicant clearly had an interest in, at the very least, confirming for themselves the ipse dixit of the Tribunal that the information was of no relevance to their proceedings;

ii)          The applicants’ interest was of such a nature that it was clearly more than to “excite or satisfy the curiosity of people about the person whose personal affairs were disclosed”.

J)      Whether the Tribunal misdirected itself in finding that the fact that the author of the documents never intended their contents to enter into the public domain satisfied the criteria for establishing confidentiality for the purposes of section 45 of the Act, in circumstances in which:

i)            The intention of the author is not decisive: the full circumstances under which the disclosure was made needed to be considered, including the respondent’s expressed undertakings, if any, to keep the information confidential;

ii)          The Tribunal failed to allude to the evidence upon which it relied to come to the conclusion that the author had such an intention or that the respondent received the documents in confidence;

iii)        The intention that the information not enter the public domain may not exclude an acceptance that the information may be disclosed to a limited group of people including the applicants;

K)    Whether the Tribunal misdirected itself in finding that there remained a threat that the information would be used to the detriment of the third party by failing to indicate the facts upon which it came to such a significant conclusion.

L)     Whether the Tribunal erred in that it failed to establish, as it was required to do by section 45, that the disclosure of such information would found an action for breach of confidence by the third party;

…

4. Grounds

A) The Tribunal erred in finding that the documents in dispute contained personal information about a person for the purposes of s 41(1) of the Act where the only information about that person contained in the document was the person’s identity as author of the document.

B) The Tribunal erred in finding that documents provided by another person to the RRT in relation to the applicant’s application to the RRT could have the quality of confidentiality necessary to be exempt under s 45 of the Act.

C) In considering whether disclosure of the documents in question would involve the unreasonable disclosure of personal information, the Tribunal erred in failing to have regard to the public interest in applicants to the RRT being enabled to test whether they had been accorded procedural fairness when not given an opportunity to deal with material presented to the RRT.

D) The Tribunal erred in finding that the concern of the applicant to know what matters had been put against her in a document placed before the RRT is capable in law of constituting a threat that the information in the document would be used to the detriment of a third party.

E) The Tribunal erred in not determining whether the information in question was information about an individual whose identity was known to the Applicant.

F) The Tribunal erred in finding that section 41(1) of the Act was of application without a finding that the documents in question contained information about the third party, and not simply “personal” to that party.

G) The Tribunal erred in finding that disclosure of the exempt information constituted “unreasonable disclosure” which would cause “distress” to the third party, without considering the effect of such distress on the weighing of the public interests in disclosure.

H) The Tribunal erred in finding that disclosure of the exempt information constituted “unreasonable disclosure” which would cause “distress” to the third party, in circumstances in which the evidence upon which such a finding of distress was not even alluded to.

I) The Tribunal erred in finding there was no “good public purpose” to achieve in releasing the information when:

i) The applicants clearly had an interest in, at the very least, confirming for themselves the ipse dixit of the Tribunal that the information was of no relevance to their proceedings;

ii) The applicants’ interest was of such a nature that it was clearly more than to “excite or satisfy the curiosity of people about the person whose personal affairs were disclosed”.

J)      The Tribunal misdirected itself in finding that the fact that the author of the documents never intended their contents to enter into the public domain satisfied the criteria for establishing confidentiality for the purposes of the section, in circumstances in which:

i)        The intention of the author is not decisive: the full circumstances under which the disclosure was made needed to be considered, including the respondent’s expressed undertakings, if any, to keep the information confidential;

ii)      The Tribunal failed to allude to the evidence upon which it relied to come to the conclusion that the author had such an intention or that the respondent received the documents in confidence;

iii)    The intention that the information not enter the public domain may not exclude an acceptance that the information may be disclosed to a limited group of people including the applicants; the validity of such a contention cannot be tested without reference to the facts surrounding the disclosure, to which the Tribunal has made no reference;

K)    The Tribunal misdirected itself in finding that there remained a threat that the information would be used to the detriment of the third party by failing to indicate the facts upon which it came to such a significant conclusion.

L)     The Tribunal erred in that it failed to establish, as it was required to do by section 45, that the disclosure of such information would found an action for breach of confidence by the third party; the limited facts revealed in the judgment indicated that this would be very unlikely to be the case.

4                     Written submissions were filed and relied on by the applicant. The applicant also made oral submissions at the hearing, and was given leave to file submissions in reply after having perused the transcript, provided that they were consented to by the respondent. On 6 February 2006 the applicant advised that she did not wish to put on further submissions in reply.

5                     I have examined the documents. Some of the aspects of the Amended Notice of Appeal and of the submission implicitly invite a discussion of the documents. I do not propose to engage the submissions at a level which would require that to be done.

6                     The AAT approached the matter by first having regard to ss 4, 41(1) and 45(1) of the FOI Act. It then applied what Mansfield J had said in Ward v Centrelink [2005] FCA 73 at [27]-[29] in dealing with s 41 of the FOI Act. It also had regard to the judgments of the Full Court in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 and of Kiefel J in Kristoffersen v Department of Employment Workplace Relations and Small Business [2003] FCA 55. In relation to the question of confidentiality the Tribunal applied what it had said in Re Kamminga and Australian National University (1992) 26 ALD 585 where the Tribunal followed what Gummow J had said in Corrs Pavey Whiting and Byrnes v Collector of Customs (Vic) (1987) 14 FCR 434.

Section 41 of the FOI Act

7                     In its consideration of s 41, the AAT examined the contents of the documents and concluded that it would be unreasonable to disclose what it considered to be personal information. The reasons given by the Tribunal were not detailed or lengthy. There is, of course, no vice in that, unless the reasons reveal some error in approach.

8                     Having referred to the judgments in Ward v Centrelink, Colakovski v Australian Telecommunications Corporation (1991) and Kristoffersen v Department of Employment Workplace Relations the Tribunal concluded:

1.      That there was no doubt that they contain information which would lead to others identifying the author. [This was undoubtedly correct.]

2.      That the documents contained information personal about the third person. [This was undoubtedly correct.]

3.      That it was clear from the documents themselves that to release the documents would cause distress to the third party. [This was undoubtedly apparently correct if one accepts some statements in the documents.]

4.      That no good public purpose would be achieved by the release of the documents.

9                     The attack by the applicant upon the approach of the AAT, was, in substance, that these conclusions reflected a legally inadequate consideration in all the circumstances of the task set by s 41 of the FOI Act.

10                  First, it was said that the extent to which the information was personal to the third party was legally irrelevant. The applicant referred to what Kirby P said in Commissioner of Police v the District Court of New South Wales and Perrin (1993) 31 NSWLR 606 at 620 to the effect that the general objects of a provision such as s 41 were to protect private information of people who may be dealt with in agency documents. The provision did not extend to circumstances where persons wrote to the Department about another, so it was said. I reject these submissions. The words of s 41(1) are clear and simple. The personal information may be of someone in the position of the third party here.

11                  Next, it was said that the phrase “unreasonable disclosure” requires an examination of “all relevant circumstances”. The fact, it was said, that the reasons do not deal with the circumstances in which the information was obtained by the agency, the relationship between the applicant, the third party and the agency, whether and to what extent the information affects or concerns the applicant, whether the disclosure of the information would only excite or satisfy the curiosity of the applicant about the person whose personal information would be disclosed, whether it is clear that the applicant intends to use the information for purposes that are illegal, malicious or otherwise not in the public interest.

12                  All these are considerations which could have been addressed by the Tribunal. None was mandated by the FOI Act to be considered. In reaching a decision as to whether there would be “unreasonable disclosure of personal information”, the Tribunal was entitled to a significant degree in making such a value judgment to assess for itself what factors would make disclosure “unreasonable”: cf Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 373-76.

13                  Notwithstanding the factors put forward by the applicant, it was open for the Tribunal to conclude in the light of the contents of the documents that there was no good public purpose to be achieved by the release of the documents and that the matters in [8] above, were, in all the circumstances, appropriate upon which to rest a conclusion as to s 41(1) of the FOI Act.

14                  The applicant submitted that there was a failure to balance the legitimate interest, of her as a party to enable her to test whether she had been accorded procedural fairness. I do not agree. Early in its reasons, the Tribunal stated the following in [4]:

At the outset, it may be stated that if the said documents did contain any material which related to the question of whether the Applicant or any member of her family group was or was not entitled to refugee status then the relevant material would have to be placed before the Applicant or particular member of her family for comment.

15                  The Tribunal proceeded upon the view or assumption that the contents of the documents did not contain any material which had any relevance to the question whether the applicant, her family or anyone else was or might be entitled to a protection visa. Given the contents of the documents, the Tribunal was entitled to reach that view or work on that assumption.

16                  The functions and discretions committed to the RRT under the Migration Act, and to its officers as officers of an agency under the FOI Act, are distinct. That is not to say that the nature of the work of the RRT as a government agency is irrelevant to the exercise of discretion under the FOI Act. But a mandatory obligation which may have accrued under the former regime does not automatically translate into an obligation of disclosure under the latter.

17                  The Tribunal was entitled to assume, as it implicitly did, that the RRT would comply with any obligation to give procedural fairness, or to follow any mandatory procedure in the Migration Act. The giving to the applicant of the opportunity of seeing for herself that that was the case was not a consideration which, by law, the Tribunal was required to weigh in making its decision under s 41 of the FOI Act in the circumstances before it.

18                  Whether steps were required and were not taken, and whether the RRT has made a mistake in the conduct of the protection visa proceeding (see VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72) are not matters I need to decide. It is unnecessary for me to comment upon the relevance and engagement of VEAL in this case, particularly where at the time of argument a Full Court was, the parties informed me, reserved on the applicant’s application for judicial review of the RRT’s decision not to grant protection visas to her and her family.

19                  On the other hand the applicant also submitted that in looking at the issue of the relevance of the documents to the RRT proceedings to the extent that it did, the Tribunal fell into error. The Tribunal did so in the context that the Applicant had submitted that that was a relevant factor to take into account, a submission also made in this Court. As I have said it was legitimate for the Tribunal to conclude or proceed as it did and in so doing it did not trespass in any way upon the function or role of the RRT.

20                  The Tribunal said that the applicant claimed to know the identity of the third party. The Tribunal said this was irrelevant. I agree. I reject the applicant’s submission that this claim of knowledge by the applicant required, as a matter of law, some different balancing considerations than were undertaken. As the Tribunal said, disclosure under the FOI Act is unrestricted. In any event, the fact that the applicant asserts that she knows who the third party is does not detract from the approach of the Tribunal otherwise taken and does not require the Tribunal to answer the assertion by way of confirming of denying the applicant’s asserted suspicion or knowledge.

21                  Further, the statement of the Tribunal that the release of the information would cause distress to the third party “where no good public purpose would be achieved by its release” is, I think, properly read as the result of balancing of the position of the third party and (in all the circumstances, including what the Tribunal said at [4] of its reasons) of the applicant and the evident public purpose (which plainly goes without saying) of the disclosure of documents under the FOI Act. In other words, the Tribunal was clearly referring to no good countervailing public purpose.

22                  Thus I do not see any error of law in the approach of the Tribunal.

23                  Given the absence of any error of law in relation to the decision based on s 41 of the FOI Act it is strictly unnecessary for me to deal with the argument based on confidentiality in s 45 of the FOI Act. However as the parties presented argument, I will do so. The Tribunal rested its decision upon an earlier Tribunal decision in Re Kamminga and Australian National University (1992) 26 ALD 585 and a dissenting judgment of Gummow J in Corrs Pavey Whiting and Byrnes v Collector of Customs (Vic) (1987) 14 FCR 434. Since those decisions, however, s 45 has been changed and the relevant provision of s 45(1) is as follows:

A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.

24                  Therefore, it was necessary for the Tribunal to consider the question whether its disclosure under the Act would found an action by a person for breach of confidence.

25                  The Tribunal approached the matter similarly to Gummow J in Corrs Pavey Whiting and Byrne v Collector of Customs (Vic), though in dissent, who stated that under the then form of s 45 of the FOI Act it was necessary for the section to be made out for its disclosure to be actionable at general law. Thus, correctly, the Tribunal ascertained a number of issues: whether the information was able to be identified, whether there was the necessary quality of confidentiality, whether the information had been received by the defendant in such circumstances as to import an obligation of confidence and whether there was actual or threatened misuse of that information.

26                  The Tribunal concluded that these matters were satisfied. I do not see any legal error in the approach taken by the Tribunal in the circumstances. Given the nature of the communication and its form, the Department could have been restrained from making the information available publicly. It may be that for the Department to be restrained from disclosing the information to the applicant based on a view the Department might have entertained that its public law duties required it to do so (which was apparently not the position here), there may have been some contestable debate about whether such disclosure would be restrained. However, to the extent that the Department was to threaten to make some or all of these documents available there would be, it seems to me, legitimate grounds to commence proceedings to prevent that, certainly after the third party made plain that party’s confidential intentions. It is unnecessary to decide whether such an action even if unsuccessful would suffice to allow the conclusion to be drawn that disclosure of the document would “found an action” for s 45.

27                  Given my views as to the operation of s 41 and the absence of any legal error in approach further discussion of s 45 is unnecessary.

28                  In all these circumstances the appeal should be dismissed. The applicant requested at the hearing that I allow her an opportunity to address me as to the question of costs. I therefore propose to adjourn the proceeding to 8 August for such argument.

Associate:

Dated: 20 July 2006