Administrative and disciplinary - Freedom of Information Act 1991 (SA) - review of Ombudsman's determination - exempt document - unreasonable disclosure of information concerning personal affairs of any person - definition of unreasonable disclosure - whether disclosure unreasonable requires a consideration of all the circumstances - public interest considerations relevant - disclosure of un-redacted complaint document would undermine RSPCA's ability to effectively investigate animal cruelty allegations - disclosure would be unreasonable - determination by Ombudsman affirmed

South Australian Civil and Administrative Tribunal Act 2013 s 34

Freedom of Information Act 1991 s 3, s 4, s 12, s 20, s 39, s 40, sch 1 cl 6

Animal Welfare Act 1985 s 28

Sellars v SA Police [2012] SADC 9

Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429

Martin v Commissioner of Police, NSW Police [2005] NSWADT 23

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

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

Ms A Haines, Solicitor, Crown Solicitor's Office for the Minister for Sustainability, Environment and Conservation

1. This is an application under s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) for a review of the Ombudsman's determination made under s 39 of the Freedom of Information Act 1991 (the FOI Act) on 20 February 2018.
2. The applicants are seeking access from the relevant agency to a document containing information about the identity of the person who made a 'cruelty complaint' about the applicants to the RSPCA on 14 August 2017. The respondent agency identified one document within the scope of the application, being a record of a complaint made to the RSPCA with respect to the applicant (the document). The agency claimed exemption and refused access to parts of the document under s 20 of the FOI Act.
3. The applicants currently have access to some information within that document as a copy of the document with a portion of the information deleted was provided to them.[1] They are now seeking full disclosure of the contents of the document including the name, home address, mobile telephone number, and email address of the complainant.
4. The determination of the Ombudsman on external review under s 39 of the FOI Act was to confirm the agency's determination that the information in issue (and by extension the complete document) is exempt under clause 6(1) of schedule 1 of the FOI Act. This is a 'reviewable decision' as defined in the SACAT Act_._
5. The parties made submissions before the Tribunal on 23 May 2018 and the Tribunal reserved its decision.
6. 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 South Australian Civil and Administrative Tribunal (SACAT) under s 40(2)(c) of the FOI Act and s 34 of the SACAT Act 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.
3. In accordance with the requirements of s 34 of the SACAT Act, 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.[2] The Tribunal has examined what was before the Ombudsman and has taken some further evidence on review to assist in reaching a decision.

1. The term 'agency' is defined in s 4(1) of the FOI Act as follows:

Agency means -

(a) a Minister of the Crown; or

(b) a person who holds an office established by an Act; or

(c) an administrative unit of the Public Service; or

(d) South Australia Police; or

(e) a council; or

(f) an incorporated or unincorporated body -

(i) established or continued in existence for a public purpose by an Act; or

(ii) established or continued in existence for a public purpose under an Act (other than an Act providing for the incorporation of companies or associations, cooperatives, societies or other voluntary organisations); or

(iii) subject to control or direction by the Governor, a Minister of the Crown or other instrumentality or agency of the Crown or a council (whether or not the body is established or continued in existence by or under an Act); or

(fa) a regional development assessment panel or a council development assessment panel constituted under section 34 or 56A of the Development Act 1993; or

(g) a person or body declared by the regulations to be an agency, but does not include an exempt agency.

1. The relevant document is a 'cruelty complaint summary document' received by the RSPCA in South Australia. The matter was subsequently investigated by RPSCA inspectors.
2. The legal powers that authorise South Australia's RSPCA inspectors to investigate reports of animal cruelty are specified in the Animal Welfare Act 1985 (the Animal Welfare Act). I note that the office of an RSPCA inspector is established by s 28 of the Animal Welfare Act.[3] The Minister for Sustainability, Environment and Conservation is responsible for the administration of the Animal Welfare Act and is the 'agency' for the purposes of the FOI Act and the respondent in this matter.
3. Michael MacDonald is employed in the office of the Minister for Sustainability, Environment and Conservation as the accredited FOI officer for the purposes of the FOI Act and was the decision maker in relation to the initial determination dated 17 October 2017.

1. On 14 August 2017 a complaint was made to the RSPCA alleging that the applicants were neglecting their Labrador dogs (the document indicates that the complainant had suggested that there were three dogs at the premises but the evidence suggests that there are only two dogs living at the premises).
2. On 17 August 2017 inspectors from the RSPCA attended the applicants' property in response to the complaint and conducted an investigation into the allegation. The investigation determined that the dogs present at the property were well cared for and the inspectors therefore concluded that the allegations detailed in the 'cruelty complaint' were false.
3. On 5 October 2017, the applicants found a metal pin of 0.8 meters long in their backyard next to the dogs' water bowl. They say that part of the concrete floor of the backyard was chipped by the sharp end of that pin. The applicants allege that the pin was thrown into their backyard in an attempt to kill the dogs. The applicants reported the pin incident to the police on 6 October 2017.
4. On 15 November 2017, the applicants came home to find that one dog, who had been in the backyard all day, was ill. The dog was apparently diagnosed by a veterinarian with possible food poisoning. The applicants allege that the dog was deliberately poisoned, as the dogs were fed the same food, but only the dog that had spent the day outside in the backyard was ill.
5. The applicants submit that the individual who threw the metal pin into the yard is the same person who allegedly attempted to poison their dog and is the same person who made the complaint to the RSPCA. This is their strongly held view but it is mere surmise as the matter has not yet been investigated by the police. SA Police (SAPOL) have apparently indicated that they will not investigate the matter in the absence of information as to the identity of the alleged perpetrator. The applicants are distressed by the incidents and want the police to investigate the matter with a view to prosecution. They therefore seek access to the name of the complainant as they consider that this will assist with the police investigation.
6. On 4 September 2017, the applicants applied under the FOI Act for information regarding the identity of the person who made the complaint to the RSPCA on 14 August 2017. On 17 October 2017, the respondent determined to release part of the relevant document, namely the record of the complaint made to the RSPCA with respect to the applicants, excluding the redacted information regarding the name and address details of the complainant.
7. On 31 October 2017 the applicant applied for an internal review of the determination. On 17 November 2017 the agency confirmed its determination (although it was varied to release the name of the person who received the complaint, which had been earlier redacted in error). On 24 November 2017, the applicants applied for an external review of the determination by the Ombudsman. On 20 February 2018, the Ombudsman confirmed the agency's varied determination.

1. The Tribunal admitted the following additional documents into evidence on the review:

(1) Sworn statement of Michael Douglas Macdonald, accredited FOI officer, dated 13 March 2018

(2) Sworn statement of Andrea Gai Lewis, RSPCA Chief Inspector, dated 19 April 2018

(3) Sworn statement of Ping Sieng Lau, dated 2 May 2018.

1. The Ombudsman noted that a person has a legally enforceable right to be given access to an agency's documents in accordance with s 12 of the FOI Act_._
2. The FOI Act provides that upon receipt of an access application, an agency may make a determination to refuse access where the documents are 'exempt'.
3. Schedule 1 lists various exemption clauses. The Ombudsman determined that clause 6(1) of Schedule 1 of the FOI Act is the relevant ground of exemption in this matter.
4. 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.'

1. Counsel for the applicants, Mr Cheng, submitted that a detailed legal argument is not required in this matter. He argued that this matter only required that the Tribunal exercise its judgment in 'a common sense manner'. He did not refer the Tribunal to any legal authorities to support his argument.
2. Mr Cheng acknowledged that the decision required an exercise of discretion as to the reasonableness of disclosure but he submitted that the facts in this case were such that the discretion should clearly weigh in favour of releasing the document. Mr Cheng argued that this was "logical and self-evident" as the applicants were members of the public who were entitled to have "equivalent, equal rights to be protected from false, untrue and malicious complaints". He submitted that serious consideration should be given against exercising "the shield of public policy by not providing the information" as this would mean that the police would not be able to investigate the alleged serious criminal actions against his clients and their dogs.
3. The applicants allege that, due to resourcing issues, the South Australian Police (SAPOL) have refused to pursue the matter unless and until the applicants provide more evidence to the police. The applicants' argument in favour of the release of information under the FOI application was that this would then assist SAPOL to investigate these matters.
4. Counsel emphasised that the applicants are concerned about their own safety and that of their dogs. This matter has caused them considerable trouble, expense and stress. They also feel that their reputations have been injured.
5. The applicants submit that the Tribunal must balance the public interest in maintaining the confidentiality of RSPCA complaints against circumstances such as these where a personal and public interest exists in revealing information about the identity of the person who had made the false and malicious complaint, particularly where the personal safety of the applicants is at stake.

1. The respondent's counsel, Ms Haines, submits that the person's name and contact details fall within the meaning of 'personal affairs' under clause 6(1) of the FOI Act when considered in the context of the un-redacted part of the document. Counsel for the respondent argued that this case turned on the interpretation of 'unreasonable disclosure' in clause 6(1) of Schedule 1.
2. The respondent submits that it is clear from the face of the documents and the sworn statements of Michael Douglas Macdonald and Andrea Gai Lewis that the disclosure of information redacted from the document would be unreasonable in the circumstances.
3. Ms Haines submits that the disclosure of the un-redacted document would be unreasonable because:

(a) The redacted information reveals personal contact details of the complainant, including their place of residence. The complainant has a personal interest in maintaining their privacy.

(b) The RSPCA relies on the public to report cruelty complaints. The complaints are made with an understanding that the personal details of complainants will remain confidential. The release of the complainant's personal information would undermine the RSPCA's ability to receive cruelty complaints in the future.

1. The respondent asserts that the applicants' submission that the alleged attacks on their dogs cannot be investigated by SAPOL unless the name of the complainant is known is misconceived. The respondent argues that SAPOL can obtain the name and address of the complainant from the RSPCA in the course of a criminal investigation. The respondent's counsel submitted that the applicants' grievances may be best addressed by SAPOL, rather than by the RSPCA.
2. The respondent indicates that the applicants have relied upon what they assert to be the public interest in respect of the release of the information in question in the context of the application to clause 6. However, unlike several other clauses in Schedule 1, the respondent argues that clause 6 does not solely depend on, or require the application of, an assessment of the 'public interest' in determining its application. Rather, the test is one of whether or not, in all of the circumstances, it is reasonable to disclose the material in question. Ms Haines argues that the 'public interest' may be relevant in some circumstances, but it is only one of the factors that can be considered in determining whether disclosure is unreasonable.
3. In this regard, the respondent submits that it appears that the primary matter that the applicants put forward in support of disclosure is their desire to have the complainant prosecuted or penalised in some way. Whilst the applicants' personal interest in the disclosure of the information is one factor that may be considered in determining the reasonableness of disclosure, the respondent argues that this must be weighed against the interests of the complainant as well as the broader circumstances surrounding the creation of the document and its contents.
4. In light of all of the circumstances of this matter and consistent with the findings of the Ombudsman, the respondent submits that it would be unreasonable to release all of the material within the document. The respondent submits that the Ombudsman's determination was the correct and preferable decision and should be upheld.

1. The objects of the FOI Act are set out in s 3(1); the principal object being 'to promote open 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'.
2. One of the means by which it is intended to achieve these objects 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'.[4]
3. The starting point therefore in considering the Ombudsman's determination is that the applicants' are entitled to access documents unless a document is determined to be exempt under the FOI Act.
4. Schedule 1 of the FOI Act provides the class and basis upon which certain documents are exempt. The agency in this case relies primarily upon clause 6(1) of the Schedule and the Ombudsman's determination was that that was the correct ground of exemption. 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.'
5. '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

1. 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 Act relating to the legal right to access document held by an agency subject to restrictions as are consistent with the public interest and the preservation of personal privacy.[5]
2. In Colakovski v Australian Telecommunications Corporation 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'.[6] 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.[7]
3. In this case when read in the context of the complaint to the RSPCA, the Tribunal is satisfied that the redacted information (the complainant's name, home address, mobile number and email address) would directly reveal the 'personal affairs' of the complainant within the meaning of the FOI Act. The point of the FOI access request by the applicants is to obtain the information that identifies the complainant in order to pursue the person in another forum.
4. I therefore turn to whether that disclosure would be an 'unreasonable disclosure'.
5. The use of the word 'unreasonable' in Clause 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.
6. In determining whether disclosure would be unreasonable a decision-maker may take into account a broad range of relevant factors including anything considered 'relevant, logical and probative'.[9] As Pagone AJA observed in Victoria Police v Marke[10] about the Victorian equivalent of clause 6(1): -

The facts which may be relevant to the balancing process may be as diverse as the facts which arise for consideration.

1. Maxwell P in Victoria Police v Marke[11] conveniently summarised what a decision-maker might take into account when considering whether the disclosure of a document containing personal information would be 'unreasonable'. 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 -

i. The information in the document other than the personal information or

1. In addition the Tribunal notes that whilst the public interest is not the sole consideration when assessing 'unreasonableness' the concept must have "as its core, public interest considerations".[12]
2. 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.
3. However, as Muscat J stated in Bradshaw the SA Police; SA Police v Bradshaw:[13]

... 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.

1. In this case the applicants have a strong interest in the release of the information in the document. They are hoping to use that information to assist the police in pursuing the person whom they consider has been harassing them and their animals. They assert a particular interest in the protection of their 'basic human rights to their own personal safety and those of their dogs'.
2. 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 complainant 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 applicants have, i.e. their ongoing concerns about what they perceive to be a malicious complaint in the context of some concerning conduct relating to them and their dogs, and their desire to have this properly investigated by SAPOL.
   • Assisting the investigation of a serious criminal offence may be a relevant factor weighing in favour of release of information in any given access request. However, the alleged criminal conduct in this case is arguably at the very lower end of the scale of seriousness. Further, it is appropriate to consider whether the police investigation is in fact thwarted. SAPOL can still investigate the issues raised by the applicants and may obtain the relevant information from the RSPCA using their compulsive powers; whether they choose to do so is a matter for SAPOL and is not a relevant consideration for the Tribunal in the context of this review under the FOI Act_._
   • The complainant, in the context of this matter, has a personal interest in maintaining his or her privacy and had provided the information in the context of a confidential notification.
   • The sensitivity of the information to the effective operations of the investigative activities of the RSPCA; the RSPCA relies on reports of alleged acts of animal cruelty made in the context of confidential notifications
   • The release of the complainant's personal information would be likely to undermine the RSPCA's ability to receive and investigate complaints of animal cruelty in the future.
   • The applicant's interest in obtaining the information must be weighed against the broader circumstances surrounding the creation of the document and the possible effect that disclosure would have on the effective investigative activities of the RSPCA.
3. The Tribunal agrees with the Ombudsman's conclusion in the external review that the RSPCA's practice of never disclosing complainants' details in such matters should be respected and that a decision to release the information would no doubt undermine the ability of the RSPCA to effectively investigate allegations of animal cruelty as it could reasonably be expected to prejudice the supply of information to it by deterring people from raising concerns in the future.
4. In weighing up all of the relevant factors and the competing interests the Tribunal agrees that to release the information as to the identity of the notifier would be an unreasonable disclosure.
5. The Tribunal concludes that the information sought in the relevant document concerns the personal affairs of the notifier and that it would be an unreasonable disclosure to release the information sought.

1. The Tribunal finds that the correct and preferable decision is to affirm the Ombudsman's determination that the information in issue, and by extension the complete un-redacted 'Cruelty Complaint Summary' document, is exempt under clause 6(1) of Schedule 1 of the FOI Act.

[5] Sellars v SA Police [2012] SADC 9 [15].

[6] Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429, 437 (Lockhart J).

[7] Ibid. See also Martin v Commissioner of Police, NSW Police [2005] NSWADT 23, [36, 37].

[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] Victoria Police v Marke [2008] VSCA 218; (2008) 23 VR 223, 249 [104] (Pagone AJA); Bradshaw v SA Police; SA Police v Bradshaw [2012] SADC 184 [56] (Muscat J).

[10] Victoria Police v Marke [2008] VSCA 218; (2008) 23 VR 223, 249 [104].

[12] Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429, 438.

[13] Ibid at [58] (when considering the principles relevant to assessing 'unreasonableness' under clause 6(1)).