Knowles v Australian Information Commissioner - [2018] FCA 1212 - FCA 2018 case summary — Zoe

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Knowles v Australian Information Commissioner

[2018] FCA 1212

Federal Court of Australia|2018-08-15|Before: Tracey J

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Source facts

Court

Federal Court of Australia

Decision date

2018-08-15

Before

Tracey J

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

The respondent's application for summary judgment be granted.
The applicant's amended originating application dated 30 June 2017 be dismissed.
The applicant pay the respondent's costs of the application for summary judgment. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

TRACEY J: 1 The applicant, Mr Kieran Knowles, has sought review of four decisions of the respondent, the Australian Information Commissioner ("the Commissioner"). 2 Mr Knowles's amended application was made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). He also sought to invoke certain review and enforcement mechanisms under the Freedom of Information Act 1982 (Cth) ("the FOI Act") and the Privacy Act 1988 (Cth) ("the Privacy Act") respectively. 3 Three decisions followed requests he had made to the Department of Defence ("the Department") to access documents under the FOI Act and the Privacy Act. They were: • a decision under s 15AB(2) of the FOI Act to grant the Department an extension of time to respond to Mr Knowles's application for access to documents; • a decision under s 54W(a)(i) of the FOI Act to discontinue a review of the Department's decision to impose processing charges on Mr Knowles; and • A proposed decision under s 41(1)(e) and (2)(a) of the Privacy Act to decline further to investigate Mr Knowles's privacy complaint against the Department. 4 The fourth decision was made under s 52 of the Privacy Act following his complaint about intrusions on his privacy by The Westin Hotel ("The Westin"): "LP" and The Westin (Privacy) [2017] AICmr 53. 5 The Commissioner seeks summary dismissal of the whole application and costs. Alternatively he seeks orders that the first three decisions be dismissed summarily, that The Westin decision be the subject of a separate proceeding, and that costs be reserved.

[6]

The proposed s 41 decision 12 On 25 November 2016, Mr Knowles applied to the Department under Australian Privacy Principle 12 ("APP 12") for access to all records containing his personal information which had been created from October 2011 to March 2012 and May to October 2016. 13 The Department acknowledged the application on 30 November 2016. Following a query by Mr Knowles, the next day it indicated that it would endeavour to action his application as soon as possible but would not provide an expected response date. 14 On 22 December 2016, the Department provided some documents to Mr Knowles. While it was not refusing access to the other documents which fell within the terms of the request, it would not provide an expected response date. Mr Knowles offered an extension until 9 January 2017. The Department did not respond until after he complained to it on 30 January 2017. 15 On 8 February 2017, the Department provided Mr Knowles a final response to his APP 12 application and further documents. It told him that its emails to him of 22 December 2016, 1 February 2017 and 8 February 2017 (with attachments) comprised its complete response. 16 In the meantime, on 30 January 2017, Mr Knowles had complained to the Commissioner under s 36 of the Privacy Act about the Department's delay in responding to his request ("the APP 12 complaint"). 17 On 10 May 2017 the Commissioner acknowledged the delay in responding to Mr Knowles's complaint. His office told the Department it was enquiring under s 42 of the Privacy Act. Each party made submissions to the Commissioner. 18 On 7 June 2017 Mr Knowles received an FOI decision from the Commissioner releasing edited copies of documents from the Department which related to his APP 12 complaint. 19 On 27 June 2017 the Assistant Commissioner gave Mr Knowles a notice stating that he intended to dismiss his APP 12 complaint under s 41(1)(e) and s 41(2)(a) of the Privacy Act ("the proposed s 41 decision"). Mr Knowles was invited to comment by 11 July 2017. 20 Although Mr Knowles indicated that he would comment on the notice he did not, ultimately, do so. Instead, on 30 June 2017, he varied his application to the Court to seek relief in relation to the proposed s 41 decision. 21 The proposed s 41 decision has been put on hold pending the outcome of this proceeding.

[8]

SUMMARY JUDGMENT 25 The Court's power to dismiss summarily a proceeding pending before it is conferred by s 31A of the Federal Court of Australia Act 1976 (Cth). That section provides, relevantly, that: 31A Summary judgment … (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, … a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. … 26 The principles which guide the Court in the exercise of the discretion conferred on it by s 31A were recently and helpfully summarised by Perry J in Eliezer v University of Sydney (2015) 239 FCR 381 at 391-392; [2015] FCA 1045 at [35]-[40]: 35 First, the respondents as the moving parties bear the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 (Cassimatis) at [45] (Reeves J). 36 Secondly, as the respondents submit, the intention behind the enactment of s 31A is "to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130": White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 (White Industries) at [54] (Lindgren J); see also Cassimatis at [46] (Reeves J). In the cases to which Lindgren J referred in White Industries, the requirement had been expressed in such terms as "manifestly groundless" or "hopeless". As Hayne, Crennan, Kiefel and Bell JJ held in Spencer v Commonwealth (2010) 241 CLR 118 (Spencer) at [52]-[53]: … effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is "hopeless" or "bound to fail". … [I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a "reasonable" prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail. In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. 37 Thirdly, the assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 (Kowalski) at [28] (the Court). That discretion includes whether to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined: Butorac v WIN Corporation Pty Ltd [2009] FCA 1503 at [19] (Buchanan J); Cassimatis at [50] (Reeves J). 38 In the fourth place, despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)). Consistently with this, the discretion is concerned "with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form": White Industries at [50] (Lindgren J) (approved in Kowalski at [30] (the Court); see also Spencer at [23] (French CJ and Gummow J)). 39 Finally, in his Honour's helpful explanation of how these principles are to be applied, Reeves J in Cassimatis further explains at [46] that: … the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred. 40 To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant's success relies on a question of fact that is implausible, improbable, tenuous or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour's view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty. 27 Drawing on these principles, and having regard to the circumstances of Mr Knowles's various complaints, I particularly bear in mind the following matters: It is for the Commissioner to persuade the Court that the strike-out application should be granted. The discretion to order summary judgment is to be exercised with caution. It is necessary to consider whether there is a real question of contested law or fact that should be decided at trial. 28 Neither party suggested that it was necessary for there to be a stay of the hearing of the Commissioner's application given that all the relevant facts are known. 29 I should also add that, as a result of Mr Knowles arguing his case fully as at trial, the Court is able to deal with the Commissioner's application confident that it is aware of the legal and factual issues that Mr Knowles would wish to have advanced at trial. 30 Given that some of the issues raised and the relief claimed by Mr Knowles have been rendered moot by subsequent events, the utility of the Court dealing with them is a relevant consideration in the exercise of the discretion conferred by s 31A. As the Full Court said in Mayne Nickless Limited v Transport Workers' Union of Australia [1998] FCA 984 at 4 (Black CJ, Von Doussa and Carr JJ): The courts have an obligation to conduct their proceedings, and to deal with an ever-increasing workload, with as much expedition as the overriding demands of justice permit. No encouragement should be given, therefore, to the use of scarce judicial time to decide appeals that are essentially moot. There are other litigants with cases pending before the Court for hearing or delivery of judgment and their claims involve the determination of substantial legal rights of practical importance.

[9]

THE SECTION 15AB DECISION 31 This decision was made by a delegate of the Commissioner on 24 May 2017 under s 15AB(2) of the FOI Act to grant the Department an extension of time to respond to Mr Knowles's FOI application. 32 Mr Knowles has challenged the decision on three grounds. He complained that the Commissioner had: (1) breached the rules of natural justice by failing to give him an opportunity to be heard (ADJR Act s 5(1)(a)); (2) overlooked relevant (unparticularised) considerations (ADJR Act s 5(2)(b)); and (3) taken into account (unparticularised) irrelevant considerations (ADJR Act s 5(2)(a)). 33 Mr Knowles seeks, in his amended application, declarations "on the issues of law sought to be addressed" and an order "remitting these decisions back to the [Commissioner] to remedy any deficiencies held by the Court to be found proven". In his written submissions he states that he seeks relief under s 16(1)(a) and (c) of the ADJR Act. These sections provide, respectively, for orders quashing a decision and declaring the rights of the parties in respect of any matter to which the decision relates. 34 Section 15AB of the FOI Act provides: 15AB Extension of time for complex or voluminous requests (1) An agency or Minister may apply to the Information Commissioner for an extension of the period referred to in paragraph 15(5)(b) for dealing with a request if the agency or Minister considers that the period is insufficient to deal adequately with a request because the request is complex or voluminous. (2) If the Information Commissioner is satisfied that the application is justified, the Information Commissioner may, by written instrument, extend the period by a further period of 30 days, or such other period as the Information Commissioner considers appropriate. Note: For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901. (3) The Information Commissioner must, as soon as practicable, inform the following persons of the period for which the extension has been given: (a) the applicant; (b) the agency or Minister

[12]

Mandatory considerations 39 Mr Knowles submitted that the Commissioner had failed to consider certain mandatory factors. Section 15AB contained two express mandatory considerations. The Commissioner was required, but had failed, to consider whether he was satisfied that the work remaining on the FOI application was complex or voluminous. He was also required, but had failed, to consider whether he was satisfied there was otherwise insufficient time for the agency to adequately complete its response. These factors were preconditions for the exercise of power. They were also mandatory considerations. The Commissioner had erred by failing to consider them. It was also necessary, he added, for the Commissioner's satisfaction to be rational and reasonable. 40 Two other mandatory considerations impliedly arose from the statutory context of the section. First, the Commissioner was required, but had failed, to consider whether the insufficiency of time was outside the agency's control. When the Department applied in May 2017 to extend time his FOI application had been on foot since October 2016. The Department had caused this delay because it had improperly imposed charges under s 55G which it withdrew only on the Commissioner's prompting. After the statutory timeframe recommenced the Department did not seek further time until about six working days before the due date. The Commissioner had erred by failing to considering the Department's role in the delay. 41 Secondly, the Commissioner was required, but had failed, to consider whether the complexity or voluminousness claimed by the Department was real and not merely hypothetical. The section impliedly required that he be satisfied on more than hypothetical grounds. The Commissioner's FOI Case Management Manual specified that agencies should "provide measurable/quantifiable explanations and justifications as to why a matter is either complex or voluminous". The Department's application to extend time was largely hypothetical and lacked quantifiable justification. The hypothetical nature of the application was also evident from the fact that the Department had previously refused to carry out the searches sought by Mr Knowles. The Commissioner had erred by failing to consider this factor. 42 Mr Knowles made an additional submission that s 15AB impliedly required the Commissioner to make inquiries and obtain relevant information to inform his consideration of the mandatory considerations. This duty was said to be consistent with his procedural fairness obligations.

[14]

Other arguments 45 Mr Knowles also made a number of submissions which invoked grounds other than those raised in his amended application for review. Some of these submissions traversed familiar claims. 46 He submitted that the s 15AB decision was arbitrary, capricious and made without proper consideration of the statutory elements. This submission was supported by claims which he had agitated in relation to the grounds recorded above. First, a large amount of time (about six months) had been lost due to the charges dispute. Secondly, the extension application was very late (made only six business days before the decision was due). Thirdly, the Commissioner's policy manual stated that procedural fairness required the views of an FOI applicant to be sought there an agency had omitted to notify him or her of the s 15AB application. Fourthly, the Commissioner was aware the Department had previously refused to carry out certain searches. Fifthly, he had been prejudiced by the imposition of the charges which the Commissioner acknowledged were inconsistent with the FOI Act. Sixthly, as the Commissioner had consulted the Department, so too could he have consulted Mr Knowles. 47 Mr Knowles also sought to have adverse inferences drawn from the time that the Commissioner's delegate had taken to deal with the Department's application and from statistics about historical decisions made by the Commissioner under s 15AB. 48 He referred to the Commissioner's submission of December 2012, to the review of freedom of information legislation conducted by Dr Allan Hawke AC, where he stated (at p 2) that the FOI Act is "a piece of legislation that is unwieldy, confusing, and difficult to interpret" and on "important issues such as calculating the FOI processing period, granting extensions of time and consulting third parties, the OAIC has spent countless hours working out what the Act means". In the same submission the Commissioner stated (at p 37) that, "in addition to the volume of work created by the extension of time provisions, the provisions themselves are complex and, in places, unclear". Despite this, he had said (at p 36), that the office "endeavours to respond to extension of time requests from agencies within five working days". 49 Mr Knowles noted that, in contrast to the five working days specified in this passage, here the delegate had made his decision within about two business days. The Commissioner, he said, has processed over two thousand s 15AB applications, of which only 4 per cent had ever been declined. This was evidence that the Commissioner applied a standard lower than that required by s 15AB. He noted that the Commissioner had granted other applications on the basis of assertions made by agencies that their proposed searches would be complex or voluminous. Those searches, he claimed, were often never carried out. Despite this the Commissioner continued to grant applications made by agencies to extend time. 50 It was important, he said, that the Court review this decision as s 15AB was being used improperly by agencies that wished to delay compliance with their obligations. The Court's decision would have implications for future s 15AB decisions.

[15]

Consideration 51 I am prepared to assume (without deciding), in Mr Knowles's favour, that the Commissioner made one or more of the alleged errors in making his decision. The question remains: what purpose would be served, over a year after the decision ceased to have effect, by quashing it? 52 The decision which Mr Knowles seeks to have reviewed extended the period, prescribed by the FOI Act, within which the Department was obliged to consider and make a decision on his application for access to documents. Had the extension not been granted, and had the Department not met the statutory deadline of 30 days prescribed by s 15(5)(b), the Secretary would have been taken to have made a decision refusing to grant access to the documents sought: see s 15AC(3)(a). In the event the Department did, apparently, make a decision on Mr Knowles's application within the enlarged period. The terms of that decision were not before the Court. 53 Were the Court to set aside the Commissioner's decision Mr Knowles would gain nothing. The Department would, retrospectively, be adjudged to have failed to meet its original statutory deadline under s 15(5)(b). Such a failure would mean that the Department would, by the operation of s 15AC(3)(a), be deemed to have refused Mr Knowles's request. The deemed refusal would operate as the substantive decision and the Department's subsequent purported decision on the merits of Mr Knowles's request for documents would arguably have been made without jurisdiction. If Mr Knowles was aggrieved by the deemed refusal he could seek review of that decision in the AAT. 54 In the present circumstances it remains open to him to pursue those appeal rights before the AAT in relation to the decision actually made within the time that was enlarged. The Court does not have any evidence before it in relation to that decision. If it involved a wholesale refusal of access then Mr Knowles would be in the same position as he would have been if the deemed refusal were the operative decision. If the decision was more beneficial to Mr Knowles (that is, if access was granted to at least some of the documents) then that benefit would be removed by its replacement with the deemed refusal. 55 There is, as a result, no utility in the Court entertaining this application. No order which the Court could make, even assuming that Mr Knowles were successful in establishing legal error on the part of the Commissioner, could avail Mr Knowles. 56 The claim should be dismissed.

[16]

THE SECTION 54W DECISION 57 Mr Knowles challenged the decision of the Commissioner's delegate of 16 June 2017, made under s 54W(a)(i) of the FOI Act, to discontinue the review of the charges imposed by the Department. He relied on six grounds. He claimed that the Commissioner had: (1) failed to abide by procedures required by law by not providing assistance in accordance with ss 54N(3) and 69 of the FOI Act (ADJR Act s 6(1)(b)); (2) failed to abide by procedures required by law by not treating the complaint as both an IC review and a s 70 complaint (ADJR Act s 6(1)(b)); (3) overlooked relevant (unparticularised) considerations (ADJR Act s 5(2)(b)); (4) taken into account irrelevant (unparticularised) considerations (ADJR Act s 5(2)(a)); (5) erred in law by allowing excessive delay contrary to ss 55(4)(c) and 55DA of the FOI Act (ADJR Act s 6(1)(f)); and (6) erred in law by considering "preliminary views" under s 54V of the FOI Act and not progressing to s 55 of the FOI Act (ADJR Act s 6(1)(f)). 58 His application also recorded that he sought review under s 56 of the FOI Act. 59 As noted Mr Knowles's amended application records that he seeks declarations "on the issues of law sought to be addressed" and an order remitting the decision to the Commissioner. In his written submissions he states that, under s 16(1) of the ADJR Act, he seeks orders quashing the decision, referring the matter to the person who made the decision for further consideration, and declaring the rights of the parties. 60 The relevant parts of the FOI Act, relied on by Mr Knowles in his application, are collected in the following paragraphs. 61 Section 54W of the FOI Act relevantly provides: 54W Decision to review - discretion not to review The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if: (a) the Information Commissioner is satisfied of any of the following: (i) the IC review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith; … … 62 Section 54N(3) relevantly provides: 54N IC review applications - application … (3) The Office of the Australian Information Commissioner must provide appropriate assistance to a person who: (a) wishes to make an IC review application; and (b) requires assistance to prepare the IC review application. … 63 Section 54V provides: 54V Decision to review - preliminary inquiries The Information Commissioner may make inquiries of the review parties for the purpose of determining whether or not to undertake an IC review. 64 Section 55 provides: 55 Procedure in IC review - general (1) The Information Commissioner may, for the purposes of an IC review, review an IC reviewable decision by considering the documents or other material lodged with or provided to the Information Commissioner, and without holding a hearing, if: (a) it appears to the Information Commissioner that the issues for determination on the IC review can be adequately determined in the absence of the review parties; and (b) the Information Commissioner is satisfied that there are no unusual circumstances that would warrant the Information Commissioner holding a hearing; and (c) none of the review parties have applied for a hearing under section 55B. (2) The Information Commissioner may otherwise: (a) conduct an IC review in whatever way he or she considers appropriate; and (b) use any technique that the Information Commissioner considers appropriate to facilitate an agreed resolution of matters at issue in the IC review (for example by using techniques that are used in alternative dispute resolution processes); and (c) allow a person to participate in an IC review by any means of communication; and (d) obtain any information from any person, and make any inquiries, that he or she considers appropriate; and (e) give written directions as to the procedure to be followed in relation to: (i) IC reviews generally; or (ii) a particular IC review. … (3) … (4) Without limiting subsection (2), the Information Commissioner must, in relation to an IC review: (a) … (b) … (c) conduct the IC review in as timely a manner as is possible given the matters mentioned in subparagraphs (a)(i) to (iii). (5) … 65 Section 55DA provides: 55DA Decision-maker must assist Information Commissioner In an IC review, the agency or Minister who made the IC reviewable decision must use the agency's or the Minister's best endeavours to assist the Information Commissioner to make his or her decision in relation to the IC review. 66 Section 56 provides: 56 Appeals - appeals to Federal Court of Australia on questions of law (1) A review party may appeal to the Federal Court of Australia, on a question of law, from a decision of the Information Commissioner on an IC review. (2) An appeal under this section must be instituted: (a) either: (i) not later than 28 days after the day a decision under section 55K of the Information Commissioner on an IC review is given to the review party; or (ii) within the further time that the Federal Court of Australia allows; and (b) in any way that is prescribed by rules of court made under the Federal Court of Australia Act 1976. (3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted under this section. (4) The jurisdiction of the Federal Court of Australia under subsection (3) includes jurisdiction to make findings of fact under section 56A. (5) The Federal Court of Australia: (a) must hear and determine the appeal; and (b) may make any order or orders that it thinks appropriate by reason of its decision. (6) Without limiting subsection (5), the orders that the Federal Court of Australia may make include the following: (a) an order affirming the decision of the Information Commissioner; (b) an order setting aside the decision of the Information Commissioner and making a decision in substitution for the decision; (c) an order remitting the case to be considered and decided again by the Information Commissioner in accordance with the directions of the Court: (i) with or without the holding of a hearing; and (ii) with or without the hearing of further evidence. 67 Sections 68, 69 and 70 provide: Division 1 - Guide to this Part 68 Investigations and complaints - guide This Part is about investigations by the Information Commissioner and by the Ombudsman. Division 2 sets up a system for investigations by the Information Commissioner. The Information Commissioner may investigate an action taken by an agency in the performance of functions or the exercise of powers under this Act on a complaint from a person, or on the Information Commissioner's initiative. If a person disputes the merits of an access refusal decision or an access grant decision, this Act provides elsewhere for the review of that decision (see Parts VI, VII and VIIA). However, this does not prevent a person from making a complaint to the Information Commissioner about the way in which the agency has handled the decision. The Information Commissioner has powers to obtain documents, to question persons and to enter premises (see Subdivision D of Division 2). At the conclusion of the investigation, the Information Commissioner must give a notice to the complainant and to the respondent agency about the Information Commissioner's findings, with any recommendations that the Information Commissioner believes the agency ought to implement (see section 86). If the Information Commissioner is not satisfied that the agency has taken adequate and appropriate action to implement the recommendations, the Information Commissioner may take further steps (see sections 89, 89A and 89B). Division 3 deals with the investigation of complaints by the Ombudsman about action taken under this Act. Division 2 - Information Commissioner investigations Subdivision A - Power to investigate 69 Information Commissioner investigations - power to investigate Obligation to investigate (1) The Information Commissioner must, subject to this Division, investigate a complaint made under section 70. Discretion to investigate (2) The Information Commissioner may, at the Information Commissioner's initiative, investigate an action taken by an agency (the respondent agency) in the performance of functions, or the exercise of powers, under this Act. Subdivision B - Making complaints 70 Information Commissioner investigations - making complaints (1) A person (the complainant) may complain to the Information Commissioner about an action taken by an agency in the performance of functions, or the exercise of powers, under this Act. (2) A complaint must: (a) be in writing; and (b) identify the agency (also the respondent agency) in respect of which the complaint is made. (3) The Office of the Australian Information Commissioner must provide appropriate assistance to a person who: (a) wishes to make a complaint; and (b) requires assistance to formulate the complaint.

[18]

Mr Knowles's submissions 70 Mr Knowles's challenge to the s 54W decision, somewhat surprisingly, concentrated on what he had said was a failure, by the Commissioner, to deal with complaints which, he said, he had made and which required the Commissioner's attention under s 70 of the FOI Act. 71 Mr Knowles referred to the paragraph in the Commissioner's letter of 16 June 2017, which is quoted above at [11], which advised him of his right to make a complaint under s 70. He considered that he had already made such complaints and, upon reading the letter, he had become aware, for the first time, that the Commissioner did not intend to deal with those complaints. He felt aggrieved that the Commissioner was asking him to renew complaints which he had already made. This was the decision which he wished to challenge. 72 The claimed complaints were contained in his eight emails to the Commissioner about the Department's conduct sent on 28 and 30 November 2016, 22 December 2016, 5 and 31 January 2017 and 28 June 2017. These emails were annexed to his affidavit affirmed on 4 December 2017. The Commissioner was obliged by ss 69 and 70 to process these complaints. His discretion under s 73, to decline to investigate after making preliminary enquiries, did not mean he could ignore complaints altogether. 73 These complaints, he said, met the criteria required by s 70. They were in writing, identified the agency, and dealt with its performance of functions and powers under the FOI Act. He did not need expressly to invoke s 70. He had not withdrawn the complaints or acquiesced in them being ignored. As his complaints were not confined to a decision made by the Department, an IC review was an inappropriate response. 74 He relied on s 68 which provides that an extant IC review does not prevent a complaint being made about the way the agency has handled the decision under review. That the Commissioner's policy manuals provide otherwise was inconsistent with the Act. IC reviews under Pt VII are distinct from complaints under Pt VIIB. The Commissioner knew the subjects of his complaints could not form part of the IC review. If he had wished to proceed only with an IC review, he would not have continued to complain that the Department's conduct was being ignored. 75 During the hearing I asked Mr Knowles to identify the relevant considerations to which the Commissioner had failed to have regard. He stated that the Commissioner had "failed to observe and abide by procedures set down in law in the FOI Act such that a valid s 70 complaint … which [he] understood as being assessed had been ignored and not revealed until dismissal of the IC review and subsequent to extensive delay". He also referred to a statutory construction issue which he said was a relevant consideration. He did not identify what this was. 76 I also asked him to identify the irrelevant considerations which he said the Commissioner had taken into account. He identified the following factors which he said were irrelevant: That there was an ongoing IC review at the time of his complaints. Section 68 states that the fact that an IC review may or may not also be underway is irrelevant. It was impermissible to refuse to deal with the complaints on the basis that they related to ongoing IC review. That the Commissioner was obligated by the operation of ss 69 and 70 to acknowledge and process the s 70 complaints. That there is no requirement under ss 69 and 70 that a complaint expressly state "this is a s 70 complaint". A complaint under s 70 is to be recognised by its content. That all that the Act requires of a complaint under s 70 is that it be in writing, identify the impugned agency and complain about the agency's conduct, namely its performance of functions and exercise of powers under the FOI Act.

[19]

Consideration 77 Mr Knowles's application to the Commissioner, which was the subject of the delegate's decision under s 54W(a)(i), was a challenge to the decision to impose a processing charge in relation to the production of documents which he had sought under the FOI Act. This was made plain by his application which contained the sentence: "To avoid all doubt, I apply via this email for an IC review of the attached Defence FOI Charges Decision." The letter, sent to him on 16 June 2017, advised him of the delegate's decision to discontinue the review which had been commenced upon receipt of Mr Knowles's application. 78 The letter contained no decision relating to any complaint which Mr Knowles may or may not have made under s 70. It did no more than draw his attention to the existence of that provision. 79 Mr Knowles wished to be relieved of the requirement that he pay $60 by way of a processing fee imposed by the Department. Following the intervention of the Commissioner the Department determined to waive the charge. 80 There is no ongoing controversy about his legal rights. The Department's decision to waive the charge places Mr Knowles in a better position than he would conceivably be as the result of a successful judicial review application. Even if the Court were to set aside the Commissioner's decision to discontinue his review Mr Knowles's legal position would not have improved. Any further review by the Commissioner (should he be minded to conduct one) would be into a decision which is no longer operative. 81 The application in relation to the Commissioner's decision under s 54W(a)(i) should be dismissed: cf Ibarcena v Secretary, Department of Family and Community Services (2001) 33 AAR 76 at 80; [2001] FCA 453 at [19]-[21] (Finn J). 82 If Mr Knowles wishes to make a complaint about the manner in which his application was processed he remains free, as he has been advised, to do so. The outcome of such an inquiry could not, however, have any bearing on the decision made by the delegate under s 54W(a)(i). 83 Mr Knowles may also wish to press his complaints which he has, apparently, already made to the Commissioner and to which he says the Commissioner has failed to respond. His present challenge to the decision made under s 54W(a)(i) of the FOI Act is not, however, an appropriate mechanism to achieve that goal. 84 This claim should be dismissed.

[20]

THE PROPOSED SECTION 41 DECISION 85 Mr Knowles challenged the Assistant Commissioner's proposed decision under s 41(1)(e) and (2)(a) of the Privacy Act to decline further to investigate his complaint about the Department's delay in processing his request for documents under AAP 12 of the Privacy Act. The proposed decision was communicated to Mr Knowles by letter dated 27 June 2017. 86 He seeks, in his amended application, declarations on "the issues of law" and an order remitting the decision to the Commissioner for further consideration. In his written submissions he states that he also seeks an order under s 16(2)(a) of the ADJR declaring the rights of the parties in respect of any matter to which the conduct relates. 87 Although his amended originating application is written in a discursive style, it is apparent that he relied on five grounds. He claimed that the Assistant Commissioner's proposed decision would: (1) be an improper exercise of power as he would have taken an irrelevant consideration into account by repeating the Department's material in his reasoning "word for word" (ADJR Act ss 6(1)(e) and 6(2)(a)); (2) be an improper exercise of power as he would have failed to take a relevant consideration into account by failing to consider documents of the Commonwealth Department of Veterans' Affairs ("DVA") which Mr Knowles had provided and which, he said, contradicted the Department's claims (ADJR Act ss 6(1)(e) and 6(2)(b)); and (3) be an improper exercise of power as he would have exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case by repeating the Department's material in its reasoning "word for word" and failing to consider the DVA documents (ADJR Act ss 6(1)(e) and 6(2)(f)); (4) involve him ignoring material he was required to consider under s 40; and (5) involve him ignoring "other material/issues [he] was obliged to consider in [his] conduct, and focuses on irrelevant matters, in a particularly obtuse and narrow way, without regard to the merits of the particular case." 88 Ground 5 was not clearly particularised in Mr Knowles's amended application. Although a number of points appeared in his application, it was not clear which he contended were irrelevant or mandatory considerations. For completeness, I set out the listed matters below: That "[t]he APPs are legally binding principles that set out standards, rights and obligations in relation to handling, holding, accessing and correcting personal information". That "[u]nder s 13(1) an act or practice of an APP entity that breaches an APP in relation to personal information about an individual, is 'an interference with the privacy' of the individual." That "[t]he [Commissioner] concedes [the Department] was required by APP 12.4(a)(i) that an agency must make a decision on the request for access to the personal information within 30 days after the request is made, yet [the Department] did not make a decision on access as a whole as required at that date, only to stress they 'weren't refusing access' despite not having completed the APP12 Request in full, nor having sought [Mr Knowles's] consent to any extension". That Mr Knowles had offered an extension to the Department "on [his] own initiative, given [he] saw no realistic choice to do otherwise, if [he] wanted to resolve this APP12 access application at the lowest level, and wanted to use [his] best efforts to assist [the Department] to comply with the APP12 Request". That, despite this, the Department "failed to respond by the expiry of that offered extension to 9 January 2017, and made no further response until legal action was proposed by [Mr Knowles] on 30 January to remedy this ongoing breach of [the Department's] legal obligations under the Privacy Act". That the Department "also stated it was not the responsibility of [its] nominated Privacy Officer to manage APP12 requests, but inferred it was up to individual areas in [the Department] to handle in accordance with their wishes, and as they see fit to do, contrary to the Privacy Act requirements (unlawful conduct by [the Department], which the [Commissioner] has continued to ignore, despite its positive obligations to assist agencies uphold the Privacy Act, and to take action when agencies refuse to do so)." That, where the Commissioner "is dealing with aspects that may fall under either the FOI Act or the Privacy Act and the [Commissioner] has a reasonable belief that it is possible to deal entirely with such matters under either Act … the choice should be [Mr Knowles's], not the [Commissioner's], to elect, or at the very least that the [Commissioner] was required to give the [his] views some weight in the making of any decision …, as to which Act such matters should exclusively be dealt with." 89 Sections 40 and 41 of the Privacy Act provide: 40 Investigations (1) Subject to subsection (1A), the Commissioner shall investigate an act or practice if: (a) the act or practice may be an interference with the privacy of an individual; and (b) a complaint about the act or practice has been made under section 36. (1A) The Commissioner must not investigate a complaint if the complainant did not complain to the respondent before making the complaint to the Commissioner under section 36. However, the Commissioner may decide to investigate the complaint if he or she considers that it was not appropriate for the complainant to complain to the respondent. … (3) This section has effect subject to section 41. … 41 Commissioner may or must decide not to investigate etc. in certain circumstances (1) The Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under section 36 if the Commissioner is satisfied that: … (e) the act or practice is the subject of an application under another Commonwealth law, or a State or Territory law, and the subject‑matter of the complaint has been, or is being, dealt with adequately under that law; or … (1A) … (2) The Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under section 36 if the Commissioner is satisfied that the complainant has complained to the respondent about the act or practice and either: (a) the respondent has dealt, or is dealing, adequately with the complaint; or (b) … (3) …

[24]

THE WESTIN DECISION 99 Mr Knowles was dissatisfied with the reasoning which supported the Commissioner's decision, made on 7 June 2017, under s 52 of the Privacy Act, and published as: "LP" and The Westin Sydney (Privacy) [2017] AICmr 53. 100 Mr Knowles's amended application seeks declarations "on the issues of law", an order remitting the decision to the Commissioner", and a "hearing de novo" under s 55A of the Privacy Act. In his written submissions he states that he seeks orders quashing the decision, referring it to the Commissioner for further consideration and declaring the rights of the parties: see ADJR Act s 16(1)(a), (b) and (c). 101 The Commissioner found that The Westin's collection of Mr Knowles's personal information was not unlawful. This was because the telephone call which it had recorded was not a "private conversation" for the purposes of the Surveillance Devices Act 2004 (NSW) ("the Surveillance Devices Act") (at [23]). Nor had that call been "intercepted" for the purposes of the Telecommunications (Interception) Act 1979 (Cth) ("the Telecommunications Act"): at [26]. The Commissioner did find, however, that the collection was unfair: at [36]. On that basis he determined that The Westin had interfered with Mr Knowles's privacy contrary to APP 3.5: at [1]. The Commissioner also determined that The Westin was to issue a written apology to Mr Knowles and pay him $1,500 for non-economic loss: at [2]. The Commissioner declined to award him the aggravated damages which he had sought: at [71]. 102 The Commissioner also considered Mr Knowles's complaint that The Westin had failed to respond to his request for access for a copy of the telephone recording within a reasonable time. The Commissioner found that the failure to provide the recording within three days was not indicative of a delay and, accordingly, The Westin had not breached APP 12.4(a) (at [45]-[46]). 103 Mr Knowles invoked seven grounds in his application. He alleged that the Commissioner had: (1) overlooked relevant (unparticularised) considerations (ADJR Act s 5(2)(b)); (2) took into account irrelevant (unparticularised) considerations (ADJR Act s 5(2)(a)); (3) erred in law in interpreting the term "private conversation" in the Surveillance Devices Act (ADJR Act s 5(1)(f)); (4) failed to give him an opportunity to be heard on the interpretation of "private conversation" in the Surveillance Devices Act; (5) erred in law in interpreting the Telecommunication Act, including in relation to the meaning of "interception" defined that Act (ADJR Act s 5(1)(f)); and (6) failed to give him an opportunity to be heard on the interpretation the Telecommunication Act; (7) made (unparticularised) findings of fact in the absence, or contrary to, evidence before him (ADJR Act s 5(1)(h)). 104 His application indicated that Grounds 1, 2 and 7 would be expanded on during oral submissions. 105 The legislation referred to in Mr Knowles's submissions is collected in the following paragraphs. 106 Section 52 of the Privacy Act provides: 52 Determination of the Commissioner (1) After investigating a complaint, the Commissioner may: … (b) find the complaint substantiated and make a determination that includes one or more of the following: (i) a declaration: … (B) in any other case - that the respondent has engaged in conduct constituting an interference with the privacy of an individual and must not repeat or continue such conduct; … (ii) a declaration that the respondent must perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant; (iii) a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint; … (1AB) The loss or damage referred to in paragraph (1)(b) or subsection (1A) includes: (a) injury to the feelings of the complainant or individual; and (b) humiliation suffered by the complainant or individual. (1B) A determination of the Commissioner under subsection (1) or (1A) is not binding or conclusive between any of the parties to the determination. (2) The Commissioner shall, in a determination, state any findings of fact upon which the determination is based. … (3A) A determination under paragraph (1)(b) or subsection (1A) may include any order that the Commissioner considers necessary or appropriate. … 107 Section 55A of the Privacy Act provides: 55A Proceedings in the Federal Court or Federal Circuit Court to enforce a determination (1) The following persons may commence proceedings in the Federal Court or the Federal Circuit Court for an order to enforce a determination: (a) if the determination was made under subsection 52(1) - the complainant; (b) the Commissioner. (2) If the court is satisfied that the person or entity in relation to which the determination applies has engaged in conduct that constitutes an interference with the privacy of an individual, the court may make such orders (including a declaration of right) as it thinks fit. … (5) The court is to deal by way of a hearing de novo with the question whether the person or entity in relation to which the determination applies has engaged in conduct that constitutes an interference with the privacy of an individual. (6) Despite subsection (5), the court may receive any of the following as evidence in proceedings about a determination made by the Commissioner under section 52: (a) a copy of the Commissioner's written reasons for the determination; (b) a copy of any document that was before the Commissioner; (c) a copy of a record (including any tape recording) of any hearing before the Commissioner (including any oral submissions made). (7A) In conducting a hearing and making an order under this section, the court is to have due regard to the objects of this Act. … 108 Section 40A of the Privacy Act governs the process of conciliation of complaints. Nothing said or done in the course of conciliation is admissible in any subsequent hearing conducted by the Commissioner, or in any legal proceedings relating to the complaint: see s 40A(5).

[26]

Mr Knowles's submissions 111 During the hearing I asked Mr Knowles to identify the legal errors which he said had been made by the Commissioner. He said that the Commissioner had, in his decision, erroneously referred to material from a conciliation meeting contrary to s 40A(5) of the Privacy Act. I noted that this ground was not raised in his amended application. 112 When asked to identify the relevant decisions to which he said the Commissioner had failed to have regard, he listed: the operation of s 40A(5) of the Privacy Act; the meaning of the word "unlawful" in the Surveillance Devices Act; and "a composite of the first two [factors] in relation to how that applied to the assessment of damages and aggravated damages". 113 When asked to identify the irrelevant considerations to which he said the Commissioner had had regard, he listed: that The Westin "did eventually provide a copy of the recording. All that matters is, did it provide it within a reasonable timeframe? …[T]he reasonable timeframe was not there"; and the test for a "private conversation" which the Commissioner had adopted; and 114 He also stated, in relation to the second irrelevant consideration, that there was no evidence that the conversation had been overheard by other people. 115 In his written submissions Mr Knowles made three main points. First, in assessing the compensation to be awarded, the Commissioner had breached s 40A(5) by referring to Mr Knowles's rejection of three "apologies" by The Westin. Those apologies had occurred during a confidential conciliation. He had rejected them on the basis that none met the criteria established at the start of the conciliation. He had done so, he said, even though the Commissioner had "unethically tried to coerce" him to agree to them "on threat of dismissal". Neither he nor The Westin consented to the Commissioner's use of information from the conciliation in his reasons. 116 Secondly, he submitted that the Commissioner had misconstrued the term "private conversation" in the Surveillance Act by adopting a meaning which was inconsistent with, and more onerous than, that which the legislation required and which the case law supported. The Commissioner had found that a conversation was not a "private conversation" if anyone other than the person who placed that call, and the person who received it, was potentially able to hear any part of it, whether or not they actually did, and whether or not there was any consent for them to do so. In order to be a "private conversation", Mr Knowles submitted, a call must occur with the parties in "absolute isolation". 117 This definition, he contended, raised the bar beyond that established by case law. In De Costi Seafoods (Franchises) Pty Limited v Wachtenheim (No 2) [2012] NSWDC 286 at [54]-[60] (P Taylor SC DCJ) and Chappell v Griffin Coal Mining Company Pty Ltd [2016] FCA 1248 at [5], [7] and [34] (McKerracher J) it had been held that a "private conversation" was one which the parties do not intend to broadcast beyond themselves or beyond those who had the "express or implied consent of any of the persons by or to whom words are spoken in the course of the conversation" to record, monitor or listen to that call. Those cases establish, he said, that a telephone conversation does not cease to be "private" simply because it is not made in extreme isolation. 118 The application of the incorrect test was an error of law. The Commissioner had also erred by not allowing him to be heard on the correct interpretation. Mr Knowles noted that, in any event, the Commissioner had no evidence that anyone other than the parties, or those who had their consent, heard, anything of those calls. He denied that anyone (other than those to whom he gave consent) could hear his conversations. 119 Thirdly, the assessment of damages, including in relation to aggravated damages, was based on the Commissioner's conclusions in relation to these matters. There was no "private conversation" and the refusal of apologies was not able to be taken into account. He did not expressly submit that the quantum or nature of the award of damages should be varied.

[27]

Consideration 120 As the Commissioner has submitted, Mr Knowles has not challenged the decision to award him compensation and require the giving of an apology. That decision was a determination, made under s 52 of the Privacy Act. 121 The errors alleged by Mr Knowles relate to the reasoning which informed the making of the Commissioner's determination. 122 By s 96(1)(c) of the Privacy Act, Mr Knowles may apply to the Tribunal for review of the Commissioner's decision to make the determination. Upon such an appeal, the Tribunal is empowered to deal with Mr Knowles's complaint about his treatment at The Westin afresh and to make the correct and preferable decision. In doing so the Tribunal would be able to deal with Mr Knowles's challenges to the Commissioner's reasoning, including Mr Knowles's complaints about statutory construction. 123 Mr Knowles, in effect, invites this Court to provide an advisory opinion about the correctness of some of the Commissioner's reasons for making a favourable determination on his (Mr Knowles's) application. 124 Adequate provision is made, by the Privacy Act, for Mr Knowles to seek review of the Commissioner's decision in the Tribunal. The Court should, in the circumstances, refuse to grant an application under s 5 of the ADJR Act: see s 10(2)(b)(ii) of the ADJR Act. 125 As Davies J said in Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 at 34; [1995] FCA 372: the general practice of the court is not to consider, in the first instance, a dispute for the resolution of which a satisfactory administrative remedy has been provided. ... This court is too busy and its processes are too costly for it generally to be appropriate for an applicant to come to the Court when there is an informal and expeditious administrative tribunal established to resolve the dispute. See also: Edelsten v Minister for Health (1994) 58 FCR 419; [1994] FCA 82. 126 The application should also be dismissed. I am not satisfied that Mr Knowles has any reasonable prospect of successfully prosecuting the claims to which these reasons relate. 127 I should add, for the sake of completeness, two observations. The first is that Mr Knowles's complaint about the alleged contravention of s 40A(5) of the Privacy Act is misconceived to the extent that it relates to the admissibility of evidence at a hearing before the Commissioner. There was no such hearing in the present case. 128 I would further observe that, to the extent that Mr Knowles relies on s 55A(5) of the Privacy Act to invoke the jurisdiction of the Court, his submission is also misconceived. That subsection is concerned with the enforcement, by the Court, of a determination made by the Commissioner. Mr Knowles has made no application to this Court to enforce the Commissioner's determination, made under s 52(1) of the Privacy Act.

Knowles v Australian Information Commissioner

At a glance

Court

Decision date

Before

Source

Judgment (28 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (17)

Cited By (2)