The applicant submitted that disclosure of the information sought would be reasonable, given her special interest in the content. The respondent submitted that disclosure of the information sought would be unreasonable because the applicant's special interest does not override the need to preserve personal privacy.

• the information sought falls within the definition of 'personal affairs' and is therefore exempt under cl 6(1) of Sch 1 of the FOI Act.
• disclosure would be unreasonable because the applicant's right to access the information does not outweigh the third party's right to privacy.
• the information sought contains allegations or suggestions of criminal or other improper conduct that has not been established by judicial process and is therefore exempt under cl 6(2) of Sch 1 of the FOI Act.
• disclosure would be unreasonable because public ventilation would be unfair and prejudicial to the dog owner in circumstances where any allegations have not been established by judicial process.

Administrative Review - Freedom of Information Act 1991 - Person aggrieved by a determination of the Ombudsman following internal review - Whether a document is an exempt document - Documents affecting personal affairs

Administrative Review - Freedom of Information Act 1991 - Person aggrieved by a determination of the Ombudsman following internal review - Whether a document is an exempt document - Allegations or suggestions of criminal or other improper conduct

Freedom of Information Act 1991 s 3, s 4, s 19, s 29, s 40

South Australian Civil and Administrative Tribunal Act 2013 s 34

Dog and Cat Management Act 1995 s 44

Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429

Victoria Police v Marke [2008] VSCA 218; (2008) 23 VR 223

Bradshaw v SA Police; SA Police v Bradshaw [2012] SADC 184

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

1. On 25 June 2021 the applicant, Mrs Hayriye Kararmaz, was bitten by a dog as she walked past a ute in the township of Murray Bridge. The dog was unrestrained in the tray of the ute.
2. The applicant, with the assistance of her daughter, Mrs Esma Kararmaz, made an application for release of documents relevant to the dog bite incident under the Freedom of Information Act 1991 (SA) (the FOI Act).
3. In the first instance, the applicant requested release of all documents relevant to the dog bite incident from the local council - the Rural City of Murray Bridge (the respondent in this matter). The local council considered five documents to fall within the scope of the request. The council determined that documents two and four could be released in full. The council refused access to part of document three and refused access to documents one and five in their entirety on the basis that these were exempt documents.
4. The applicant sought internal review of the determination. On internal review the determination was affirmed. The applicant then sought external review of the determination by the Ombudsman. The Ombudsman affirmed the determination but varied it to allow disclosure of part of document one.
5. The applicant, being a person aggrieved by the determination of the Ombudsman, now seeks review of the Ombudsman's determination before the Tribunal.
6. In her application to the Tribunal, during direction hearings, and, at the full hearing of this matter, the applicant confirmed that she is only seeking access to that part of document three that contains the name and contact details of the dog owner.
7. Document three is a file note dated 28 June 2021 by Tony Austin, a senior compliance officer at the council. The file note reflects a conversation he had with the owner of the ute and then subsequently with the owner of the dog.
8. Prior to the hearing of the matter the respondent filed and served a book of documents, being the materials that were before the Ombudsman. The respondent also filed and served additional evidence, being an affidavit of Tony Austin. The parties filed written submissions and then made oral submissions at the hearing on 5 August 2022. At the conclusion of the hearing the Tribunal reserved its decision.
9. The Tribunal finds that the correct and preferable decision is to affirm the Ombudsman's determination. These are the reasons for that decision.

The applicant's right of review and the task of the Tribunal

1. A person who wishes to challenge a determination made by the Ombudsman may apply to the Tribunal under s 40(2)(c) of the FOI Act and s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) for a review of the decision.
2. The review is conducted by way of a rehearing. On a rehearing the Tribunal will examine the evidence that was before the original decision-maker and may in its discretion consider any further evidence. The Tribunal must make the correct and preferable decision, but in so doing must have regard to and give appropriate weight to the decision of the Ombudsman as the original decision-maker.

1. One of the objects of the FOI Act is 'to promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State'.[1]
2. One of the means by which it is intended to achieve this object is by 'conferring on each member of the public a ... legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest and the preservation of personal privacy'.[2]
3. The FOI Act provides that after considering an application for access to a document, an agency[3] must determine whether access to the document is to be given or refused.[4] An agency may refuse access to a document if it is an 'exempt' document.[5]
4. Schedule 1 of the FOI Act lists various exemption clauses.
5. In this matter, the Ombudsman determined that under cl 6(1) and cl 6(2) of Sch 1 of the FOI Act, that part of document three, being the name and contact details of the dog owner, was an exempt document.
6. Clause 6(1) provides that 'a document is an exempt document if it contains matters the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person'.
7. Clause 6(2) provides that 'a document is an exempt document if it contains allegations or suggestions of criminal or other improper conduct on the part of a person the truth of which has not been established by judicial process and the disclosure of which would be unreasonable'.

1. The applicant submitted that she has a special interest in the information sought on document three, namely the name and contact details of the owner of the dog.
2. The applicant spoke of the dog bite incident, and it was clear to the Tribunal from her oral evidence and from the photographic evidence of her injury that it was a serious incident and that it had a significant impact on her. The applicant spoke of her difficulty in sleeping following the incident and her fears for safety.
3. The applicant informed the Tribunal that at this point she is not necessarily even seeking compensation; she simply wanted an acknowledgement from the dog owner of her suffering. From the written submissions provided to the Tribunal, it is apparent that the applicant is also concerned about the potential of future incidents of this nature occurring.
4. The written submissions filed by the applicant express frustration about her inability to pursue any civil action without the name and contact details of the dog owner.
5. For these reasons the applicant submits that she has a special interest in the information.
6. The applicant did not dispute that the information fell within the meaning of personal affairs as per cl 6(1) of Sch 1 of the FOI Act. The applicant also did not dispute that the information contained allegations or suggestions of criminal or other improper conduct in the context of the document that had not been established by judicial process as per cl 6(2) of Sch 1 of the FOI Act.
7. The applicant's submission was that in the circumstances, it was reasonable to disclose the information.
8. The applicant submits that the Ombudsman's determination should be varied to allow access to that part of document three that contains the name and contact details of the dog owner.

1. The respondent submitted that the information in document three, being the dog owner's name and contact details, falls within the meaning of personal affairs as per cl 6(1) of Sch 1 of the FOI Act.
2. The respondent submitted that the information contained allegations or suggestions of criminal or other improper conduct in the context of the document and that the truth of the allegations or suggestions has not been established by judicial process, as per cl 6(2) of Sch 1 of the FOI Act. The respondent referred to s 44(2) of the Dog and Cat Management Act 1995 (SA) as an offence provision that can apply to dog bite incidents.
3. The respondent submitted that it would be unreasonable to release the information sought by the applicant for the following reasons.
4. The respondent submits that the information, being the name and contact details of the owner of the dog, is information that is sensitive in the context in which it appears. The respondent submits that it is the connection of the name and contact details to the owner of the dog, being the owner of a dog that bit someone, that makes the information sensitive.
5. The respondent submits that the information was obtained as part of an investigatory process and that the dog owner has objected to disclosure of the information.
6. The respondent acknowledged the special interest of the applicant in the information, however submitted that the special interest does not override the need to preserve personal privacy.
7. The respondent submits that disclosure of the information would be unreasonable and that the Ombudsman's determination was the correct and preferable decision and should be upheld.

1. Clause 6(1) provides that 'a document is an exempt document if it contains matters the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person'.
2. 'Personal affairs' of a person is defined in s 4 of the FOI Act:

Personal affairs of a person includes that person's - > > (a) Financial affairs > > (b) Criminal records > > (c) Marital or other personal relationships > > (d) Employment records > > (e) Personal qualities or attributes > > but does not include the personal affairs of a body corporate

3. The Tribunal notes that a person's name and personal contact information does not fall directly within that list. However, the definition is inclusive not exclusive, and must be read in light of the objects and principles of the FOI Act. In Colakovski v Australian Telecommunications Corporation,[6] Lockhart J concluded that the detail of a person's name and address alone, viewed in the abstract, would be unlikely to be described as 'information relating to the personal affairs of a person'.[7] His Honour went on to say that it is necessary to consider the context in which the name and address information is referenced in the relevant document. In the context of that case (where the identity of a nuisance caller was being sought), Lockhart J concluded that if disclosure of the information would reveal not only the identity of the caller but the reason asserted for the making of the calls it would plainly amount to a 'personal affair' of the person.
4. In this matter, when read in the context of a dog bite incident, the Tribunal is satisfied that the name and contact details of the dog owner are 'personal affairs' within the meaning of the FOI Act.
5. Having accepted that the name and contact details of the dog owner are personal affairs, I now turn to whether the disclosure of that information would be an 'unreasonable disclosure'.
6. The use of the word 'unreasonable' in cl 6(1) contemplates that there will be a balancing exercise undertaken by the decision-maker. This requires a consideration of 'all the circumstances',[8] including weighing up a person's legal right to access information against the rights of a third party to the protection of their privacy.
7. In Victoria Police v Marke,[9] Maxwell P conveniently summarised what a decision-maker might take into account when considering whether the disclosure of a document containing personal information would be 'unreasonable'.[10] Those factors included:
   • The sensitivity (past and present) of the personal information;
   • Any view about disclosure expressed by any person to whom personal information relates;
   • The relationship between the personal information and any other information in the document;
   • How the personal information was obtained by the agency (whether voluntarily or involuntarily and whether or not in confidence);
   • Whether and to what extent the personal information was already known to the applicant;
   • The nature of any interest which the applicant can demonstrate in -
     1. The information in the document other than the personal information; or
     2. The personal information.
8. It is accepted that an applicant seeking access to a document under the FOI Act is not required to demonstrate any particular interest in the document nor even disclose what they propose to do with the document if access is granted. The principle of equal access to all applicants under the FOI Act does not require any particular applicant to demonstrate the basis upon which they seek access to the document in question.
9. However, as Muscat J stated in Bradshaw v SA Police; SA Police v Bradshaw:[11] '... there are a number of authorities which have held that in an appropriate case, a decision-maker is permitted to have regard to the special interest of an applicant in seeking access to documents when considering this aspect of the exemption.'[12]
10. In this case the applicant has a strong interest in the release of the information in the document. She is hoping to use that information to either pursue a civil action against the dog owner or alternatively contact the dog owner directly to discuss the incident.
11. In balancing the competing interests in this matter to assess whether it would be an unreasonable disclosure to release the information concerning the personal affairs of the dog owner, the Tribunal has weighed up the following factors:
    • Members of the public should receive fair treatment in accordance with the law and have the right to access information recorded about them in the agency's records.
    • The nature of the interest that the applicant has, i.e. her ongoing concern about the dog bite incident, future safety concerns and potential civil action against the dog owner.
    • The dog owner, in the context of this matter, has a personal interest in maintaining his or her privacy and has objected to disclosure of their name and contact details.
    • The sensitivity of the information in the context of the dog bite incident.
    • The information was obtained by an investigatory process.
12. In weighing up all of the relevant factors and competing interests and having regard to the objects of the FOI Act, the Tribunal considers that to release the information being the name and contact details of the dog owner would be an unreasonable disclosure.
13. The Tribunal is satisfied that the part of document three sought by the applicant, containing the name and contact details of the dog owner, is an exempt document under cl 6(1) of Sch 1 of the FOI Act.

1. Clause 6(2) provides that 'a document is an exempt document if it contains allegations or suggestions of criminal or other improper conduct on the part of a person the truth of which has not been established by judicial process and the disclosure of which would be unreasonable'.
2. The Tribunal accepts that the part of document three to which the applicant seeks access, namely the name and contact details of the dog owner, identify the name and contact details of the owner of a dog that bit someone. This can lead to an allegation or suggestion of criminal conduct or improper conduct on the part of the dog owner. These allegations have not yet been established by judicial process.
3. In Bradshaw v SA Police; SA Police v Bradshaw,[13] Muscat J stated '[t]he reasons for protecting information of the class described in cl 6(2) are apparent. An individual's personal views of another's involvement in criminal or other improper conduct does not warrant public ventilation and may be very damaging to the person's reputation.'[14]
4. The applicant holds a view about the dog owner's involvement in relation to the dog bite incident. To allow public ventilation would be unfair and prejudicial to the dog owner in circumstances where any allegations have not been established by judicial process.
5. Having accepted that the part of document three to which the applicant seeks access contains allegations or suggestions of criminal or other improper conduct on the part of a person the truth of which has not been established by judicial process, I now turn to whether disclosure would be unreasonable.
6. I have weighed up all of the relevant factors and the competing interests as outlined above and having regard to the objects of the FOI Act, the Tribunal again considers that to release the information being the name and contact details of the dog owner would be unreasonable.
7. The Tribunal is satisfied that the part of document three sought by the applicant, containing the name and contact details of the dog owner, is an exempt document under cl 6(2) of Sch 1 of the FOI Act.

1. The Tribunal finds that the correct and preferable decision is to affirm the Ombudsman's determination that the information in issue, namely, the name and contact details of the dog owner, are exempt under cl 6(1) and cl 6(2) of Sch 1 of the FOI Act.

[1] Freedom of Information Act 1991 (SA) s 3(1)(a).

[2] Ibid s 3(2)(b).

[3] The term 'agency' is defined in s 4(1) FOI Act to include a council.

[4] Freedom of Information Act 1991 (SA) s 19.

[5] Ibid s 20.

[8] Victoria Police v Marke [2008] VSCA 218; (2008) 23 VR 223, 229 [20]; Bradshaw v SA Police; SA Police v Bradshaw [2012] SADC 184, [53].

[9] (2008) 23 VR 229.

[11] [2012] SADC 184.

[13] [2012] SADC 184.