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[2021] SACAT 86
General information, not legal advice.
SA Civil and Administrative Tribunal
2021-08-24
Original judgment source is linked above.
Martin v Electoral Commissioner & Anor [2021] SACAT 86
The applicant sought an administrative review of a decision by the Ombudsman not to release, in full, a document in possession of the Electoral Commissioner, namely a Legislative Council Nomination form. The applicant sought access to the Legislative Council Nomination form of the Honourable Terry Stephens MLC. The nomination form includes the declared home address details of Mr Stephens.
The Ombudsman determined that the address of Mr Stephens was exempt from disclosure pursuant to cl 6(1) of Sch 1 to the Freedom of Information Act 2013 ("the Act").
Held, setting aside and substituting the decision under review:
Administrative Review - Freedom of Information Act 1991 - Organisation aggrieved by a determination made on review under Part 5 Division 1 - Whether a document is an exempt document - Public interest considerations
Victoria Police v Marke [2008] VSCA 218; (2008) 23 VR 223
Treglown v SA Police [2011] SADC 139
Colokowski v Australasian Telecommunications Corporation [1991] FCA 152; [1991] 29 FCR 429
Ms M Hamlyn for the applicant, who also appeared in person
1. This is the determination of an application lodged with the Tribunal on 23 March 2021 for the review of a Determination made by the Ombudsman on 11 March 2021. The application was made pursuant to s 30 of the Freedom of Information Act 1991 (the FOI Act) and s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act).
2. The application concerns the release of a document in possession of the Electoral Commissioner, namely a Legislative Council Nomination form, lodged with the Electoral Commissioner by the Honourable Terry Stephens MLC. The document includes the declared home address details of Mr Stephens at that time.
3. Mr Martin, on behalf of the ABC, made an application to the Electoral Commissioner (the agency) for release of the document in question on 23 November 2020. Initially, on 18 December 2020 the agency granted access to part of the contents of the relevant document (including the declared address, but not the telephone number, which had not been sought). On 15 January 2021 Mr Stephens sought an external review of this decision by the Ombudsman. The Ombudsman's determination of 11 March 2021 varied the agency's decision to the effect that Mr Stephens' home address details on the relevant document were not released to Mr Martin, as the document, or its relevant contents, was considered to be exempt from disclosure pursuant to cl 6(1) of Sch 1 to the FOI Act.
4. The Ombudsman's Determination of 11 March 2021 was that the disclosure of the address in the document "would unreasonably displace the public interest in maintaining the applicant's personal privacy, particularly in circumstances where the agency sought consent and the applicant declined to provide consent to the disclosure of his address. Further, the disclosure of the address would undermine the silent elector system".
5. Clause 6(1) of Sch 1 to the FOI Act is as follows:
A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead).
6. Subsequently Mr Martin made the present application to the Tribunal for review of the Ombudsman's Determination.
7. On 6 May 2021 Mr Stephens was joined as a party to these proceedings (at his request), pursuant to s 54 of the SACAT Act, and leave was granted to the Electoral Commissioner to withdraw from the proceedings. The Electoral Commissioner undertook to abide by the outcome of the Tribunal's determination of this review.
8. The Amended Grounds of Review filed by the Applicant state three grounds for review: that the Ombudsman's review failed to take into account relevant matters in considering if access to the information would be unreasonable; that it took into account incorrect considerations; and that procedural fairness was denied to Mr Patrick and the ABC in the Ombudsman's process. The application seeks to have the original determination by the Electoral Commissioner of 18 December 2020 reinstated, permitting the ABC access to the information in the relevant document.
9. Ms Hamlyn provided written submissions on behalf of Mr Martin, and also addressed the Tribunal. She provided an Annexure of Procedural steps relevant to this matter, and a Chronology including an "Event Description" and the location in the s 35 Book of Documents (provided by the Respondent and before the Tribunal) of the relevant documentation. I take these into account.
10. At the hearing Ms Hamlyn indicated that she relied on the written submissions provided and the Amended Grounds of Review, but she made detailed oral submissions on another aspect not covered in the written submissions and derived from the s 35 documents.
11. In her written submissions, Ms Hamlyn makes it clear that the application relates only to the address Mr Stephens nominated for himself in the Legislative Council Nomination Form (the document) which he lodged with the Electoral Commissioner prior to the 2018 State election.
12. Ms Hamlyn conceded that the address contained in the document constitutes "information concerning the personal affairs" of Mr Stephens within the meaning of cl 6(1) of Sch 1 to the FOI Act, but submitted that release of the document would not amount to an "unreasonable disclosure" of those personal affairs, and under these circumstances the exemption containing in cl 6(1) is not made out.
13. Ms Hamlyn submitted that Mr Stephens' concern for his own privacy and that of his wife is a relevant consideration, but that the primary relevant consideration is not Mr Stephens' (or his wife's) subjective concerns, but rather whether the public interest in the maintenance of private privacy generally is maintained by withholding the particular information in these circumstances, where Mr Stephens is a democratically elected member of representative government. Mr Stephens was running for public office and he was statutorily required to disclose his address as an aspect of his eligibility to run for public office.
14. Ms Hamlyn sets out in her written submission the general legislative framework within which the document exists. The document was required to be provided pursuant to s 51 of the Electoral Act 1985 for Mr Stephens' candidature in the 2018 State election to proceed, and pursuant to s 54 of the Electoral Act the names and addresses of candidates nominated were required to be publicly produced, unless the address of the candidate was suppressed from the electoral roll. At the time he lodged the document, Mr Stephens' address was not suppressed from the electoral roll: he has only recently, and since the FOI Act application was made for the disclosure of the address provided, applied for and been granted "silent elector status" under s 21 of the Electoral Act. On this basis, the address Mr Stephens provided on the document was statutorily required to be made public at the time of his nomination, and forms part of the public record. Ms Hamlyn asserted that the tick box on the document, where Mr Stephens indicated he did not consent to the release of his address, has no relevance in this statutory context.
15. Ms Hamlyn also submits there were a number of relevant considerations not taken into account in the Ombudsman's Determination. These were the ABC's interest, and the broader public interest, in having access to the nominated address on the document, in particular the reporting on the matter which is concerned with Mr Stephens' position as a public figure in the community and as part of a government the accountability to electors of which is a principal purpose of the FOI Act; the fact that there is already a significant amount of information in the public domain, including the addresses of property owned by Mr Stephens, which also amounts to information about personal affairs; and that the address was publicly available as a result of the requirements of the Electoral Act, and that Mr Stephens had not acted to prevent the publication of his address as required under that Act. She also submitted that the Ombudsman failed to take into account the ABC's intention to report on the matter and the undertakings it had made as a public broadcaster concerning the extent and nature of publication.
16. Ms Hamlyn also referred to irrelevant considerations taken into account by the Ombudsman. These included effectively giving a retrospective effect to Mr Stephens' application for "silent elector" status, an application he made after the original declaration releasing the document to the ABC, relying on that application to conclude that it would be unreasonable to disclose the document which pre-existed the application for silent elector status; and fear of a security risk to Mr Stephens and his wife if the information sought were disclosed, without any investigation as to whether such fear was reasonable or warranted.
17. In her oral submissions to the Tribunal Ms Hamlyn focussed on a further issue.
18. Ms Hamlyn told the Tribunal it appeared from a document now disclosed that was before the Ombudsman for the purpose of making the Determination that the address contained in the document (the Nomination Form) was not in fact Mr Stephens' home address at either the time the Nomination Form was lodged (prior to the 2018 election), nor at the time the FOI application was lodged (November 2020). Ms Hamlyn's submissions were addressed to the implication of the release of the address provided on the Nomination Form. The address in issue here is the specific address of an apartment in Victor Harbour (the Victor Harbour property).
19. Ms Hamlyn told the Tribunal the address contained on the Nomination Form is referred to in the application letter from Mr Stephens' solicitors to the Ombudsman dated 15 January 2021 (the letter appears to be incorrectly dated as 15 January 2020), seeking review of the original decision to permit the disclosure of the information. The ABC is now aware of the address provided in the Nomination Form (the Victor Harbour property) because this was disclosed to the Ombudsman by Mr Stephens' solicitors.
20. Ms Hamlyn then took the Tribunal through a chronology relating to the ownership and use of the Victor Harbour property identified in the solicitors' letter of 15 January 2021 and included on the Nomination Form:
21. Ms Hamlyn submitted these transactions indicate that at the time the Nomination Form was lodged with the Electoral Commission, and when Mr Martin made his FOI request, the Victor Harbour property address which she believes appears on the Nomination Form was not the address where Mr Stephens resided, and had not been since about March 2017.
22. Ms Hamlyn submitted there could be no issue of an unreasonable disclosure of Mr Stephens' personal affairs where the disclosure is of an address of property where he may have lived four years ago but does not live now and is now owned by someone else. In addition, since the address is no longer Mr Stephens' address, Ms Hamlyn submitted that the address cannot be regarded as relating to his personal affairs.
23. Ms Hamlyn noted that the Ombudsman's Determination used the expressions "home address" and "street address" interchangeably, but that the respondent in its submissions referred only to Mr Stephens' "street address".
24. Ms Hamlyn concluded there was a significant public interest in the disclosure of the document and the information concerning the address. Mr Stephens was running for public office, and he was statutorily required to lodge a public document stating his address. Despite having moved from the Victor Harbour address in May 2017, he neglected to update his address for voting registration purposes until April 2019, and then actively signed and lodged the Nomination Form stating an incorrect address, where he had not lived since at least May 2017 and no longer owned. On this basis Ms Hamlyn submitted there was a particular public interest in disclosing the information sought.
25. She submitted that on this basis the Ombudsman's Determination should be set aside.
26. Ms Kereru made oral submissions in support of her written submissions.
27. In the first place, Ms Kereru addressed Mr Martin's complaint that the Ombudsman had not accorded the ABC with procedural fairness by failing to obtain and consider submissions from Mr Martin or the ABC in the process of making the Determination. She submitted there was no requirement for the Ombudsman to accord procedural fairness to Mr Martin, referring to s 39 of the FOI Act, submitting that the Ombudsman is only required to obtain views from an interested party if access is to be given to the document. She referred the Tribunal to contact between the Ombudsman and Mr Martin, making it clear that the Ombudsman was aware of Mr Martin's interest but did not require submissions from him. In any event Ms Kereru submitted, the Electoral Commissioner put submissions before the Ombudsman similar to those Mr Martin most likely would have made and has made in the written submission before the Tribunal. Ms Kereru submitted that the issue of procedural fairness was relevant only to how much weight ought be given to the Ombudsman's decision.
28. Ms Kereru submitted that the Ombudsman's conclusion was that disclosure of the address provided by Mr Stephens on the Nomination Form would constitute unreasonable disclosure of information concerning [his] personal affairs and thus fell within the exemption identified in clause 6(1) of Schedule 1 of the FOI Act. Ms Kereru submitted that Mr Stephens has a public point of contact for the public, as an elected person, but this status does not mean that he ought be contactable in his private capacity. In particular, she submitted, Mr Stephens' wife, who is not publicly elected, would also be exposed by the release of the material, and she is anxious, distressed and concerned about her safety and privacy. Ms Kereru drew the Tribunal's attention to submissions made to the Ombudsman concerning two events threatening the safety and privacy of parliamentary candidates which had arisen about the time of the 2018 State election, and suggested these events highlighted the importance and reality of these concerns. She submitted the exemption is available to protect privacy, and the protection of privacy is itself a matter of public interest. Disclosure of the document would disturb the public interest in Mr Stephens' privacy, and that of his wife.
29. Ms Kereru also submitted that release of the document, disclosing the address provided, would also disturb the silent elector system. She conceded that Mr Stephens had only put this process in place in February 2021, but she submitted there was nothing in the relevant statutory provisions to suggest that such a nomination was not retrospective in operation, protecting the release now of information provided in the past. Ms Kereru told the Tribunal Mr Stephens had not applied for silent elector status earlier as he had overlooked the matter and had not appreciated its significance in protecting his privacy.
30. Ms Kereru did not directly address the matters raised by the applicant in relation to the use and ownership of the Victor Harbour property by Mr Stephens. Ms Kereru submitted that the Applicant was making assumptions concerning the address contained on the document sought, but the central issue is that of whether the document comes within the exemption of cl 6(1).
31. Section 34 of the SACAT Act provides that the Tribunal has jurisdiction to deal with a matter that ... involves a review of a decision. An application to review a decision comes within the Tribunal's review jurisdiction, and the Tribunal is required to examine the decision under review by way of a re-hearing (see s 34(3) of the SACAT Act), and must reach the correct or preferable decision, having regard to and giving appropriate weight to the decision of the original decision-maker (see s 34(4) of the SACAT Act). The Tribunal in conducting a review of a decision and exercising those powers is taken to be standing in the shoes of the original decision-maker, but may also have reference to additional relevant evidence, as the review is by way of a rehearing.
32. The Applicant's Amended Grounds for Review sought review of the Ombudsman's Determination as an improperly made decision with reference to fundamental principles of administrative law: that the decision was incorrect and should be set aside on the grounds of failure to provide procedural fairness; failure to take into account relevant considerations; and taking into account irrelevant considerations. The Tribunal in considering if a decision subject to review is correct or preferable will take these considerations into account as it addresses the review by way of a re-hearing, and as such, if there has been any denial of procedural fairness this is addressed by these proceedings.
33. In considering this matter I shall address the issues raised in the Applicant's written submission separately from the matters orally addressed at the hearing. The written submission essentially addressed the administrative review principles referred to above, in the context of the application of cl 6(1) of Sch 1 of the FOI Act. These issues were addressed in the Respondent's written and oral submissions. The matters addressed in the oral submissions of the Applicant concerned the ownership and use of the Victor Harbour property on the assumption this was the property identified on the Nomination Form. The Respondent did not directly address these matters, and nor are they specifically addressed in the Ombudsman's Determination, although they also raise considerations concerning the application of cl 6(1).
Clause 6(1) and the submissions relating to the Applicant's written submissions
34. Clause 6(1) of Sch 1 of the FOI Act provides that A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead).
35. For this clause to provide an exemption to the disclosure of material, it requires both that the relevant material falls within the ambit of "personal affairs", and further, that the disclosure of that information would be "unreasonable". In considering whether disclosure is unreasonable a number of factors have been identified as relevant (see Maxwell P, Victoria Police v Marke [2008] VSCA 218; (2008) 23 VR 223, 229 [19], and approved and applied in Treglown v SA Police [2011] SADC 139).
36. I accept and note that in the written submissions the Applicant did not challenge that the information sought from the document, namely the address identified in the Nomination Form by Mr Stephens as his address, concerns his personal affairs. It is identified as his home address, or residential address. Ms Hamlyn made oral submissions that the address provided did not concern Mr Stephens' personal affairs but I shall address this aspect later in these reasons. That is not however the end of the issue of exemption pursuant to this clause, as the exemption applies only where it would be unreasonable to disclose that information.
37. In Treglown, Judge Herriman referred to and adopted the factors identified by Maxwell P in Marke to be taken into account in considering if the disclosure of information concerning personal affairs would be unreasonable within the meaning of clause 6(1) of Schedule 1. They are as follows:
38. In my view these are all relevant and pertinent considerations which should be taken into account in considering whether information concerning a person's personal affairs should be disclosed. They are not necessarily the only considerations, as the overall context is relevant in considering what is reasonable.
39. Both Judge Herriman and Maxwell P conclude that the determination of reasonableness is not a balancing exercise, but that the decision as to whether that disclosure would be unreasonable is to be arrived at by examining matters peculiar to the applicant, the document and the personal information in question (Treglown [130]).
40. Applying these specific principles to this matter, I accept that the information sought, Mr Stephens' residential address, is personal and in its nature could enable direct contact with Mr Stephens in other than his public or professional environment, and so there could be some anxiety (as expressed by Mr Stephens' wife, who presumably also resides at the address) in terms of privacy and perhaps security. This raises some issues of sensitivity. Mr Stephens has made it clear he does not want this information disclosed, by the application to the Ombudsman and his opposition to the review of the Ombudsman's Determination, and also by ticking the box on the Nomination Form indicating he did not want his personal address disclosed by the Electoral Commissioner. The information was voluntarily provided by Mr Stephens: it is a requirement under the Electoral Act 1985 that any person nominating for election must provide their address (their place of residence) on their Nomination Form, and although he ticked the box indicating he did not want his address disclosed, he was not, when he provided the information, included on the silent electoral roll, and the address he provided was required, by s 54 of the Electoral Act 1985, to be publicly disclosed. The Applicant in this matter believes he knows the information disclosed by Mr Stephens, and the Applicant asserts he has a public interest as a public broadcast reporter in having access to the information as it relates to a broader public interest in the accountability of public elected officials, including Mr Stephens.
41. I note that the Ombudsman's Determination does not appear to have taken into account some of these matters. This is not to say all these matters always need to be considered, or that they are the only considerations, but they provide useful criteria against which to assess the reasonableness of disclosure, and if they are not considered, relevant issues relating to reasonableness may be overlooked. I note the Ombudsman did not refer to the circumstances of the provision of the information including the Electoral Act framework or refer to the particular concerns of Mr Martin as a public broadcaster.
42. The circumstances in which the information was provided is relevant to the question of whether it would be unreasonable to disclose the information.
43. The information was provided by Mr Stephens on the Nomination Form he filled in and signed to nominate for election to the Legislative Council in the 2018 State election. This was a voluntary act by Mr Stephens. Section 51 of the Electoral Act 1985 requires the nomination to be made, and the form requires the provision of the address and other details. Section 54 of the Electoral Act 1985 requires the Returning Officer to publicly produce all nomination papers received (s 54(1)(a)) and declare the names and addresses of all candidates duly nominated (s 54(1)(b) and (c)). The only circumstances where the address of a nominated candidate is not made public is where "the address of a candidate is suppressed from the roll under s 21" (see s 54(1)(c)(i)). That is, having provided his residential address, as required on the Nomination Form, that address was required to be made public by the Returning Officer pursuant to s 54 (1)(c) of the Electoral Act. Mr Stephens' address at that time was not "suppressed from the roll pursuant to s 21" of the Electoral Act: Ms Kereru conceded Mr Stephens had made no application to have his address suppressed from the roll until February 2021, although she proposed there was nothing to suggest his application could not have some retrospective effect. With respect, this is an argument which can have no meaning or substance in this context: there was no suppression of his address prior to the 2018 election, and suppression of his address in February 2021 cannot change that fact. The information being sought has already been made public, by the requirements of the Electoral Act.
44. Although the Electoral Act 1985 does not provide a definition of "address", s 21 of that Act makes it clear that "address" in that Act means "place of residence".
45. In my view these considerations concerning the circumstances in which the information sought to be disclosed were provided by Mr Stephens, including the statutory and democratic purpose for which he provided the information, underlines matters relevant to whether it would be unreasonable to disclose the information: Mr Stephens provided the information because he sought to be a public official; because he sought election in an open election campaign, and knowing the requirements of the law governing elections in South Australia, including the provisions which support and ensure an open election, as contained in the Electoral Act 1985; and without availing himself of the silent electoral roll which would have meant his residential address would not have been disclosed by the Returning Officer. The Electoral Act provides that the circumstances of candidates are available for open scrutiny by electors, and candidates comply with that condition as an aspect and demonstration of their willingness to run for public office and commitment to what that represents in a democratic and open society. Those considerations of scrutiny of public officials, availability of relevant information to enable that scrutiny to be effective, and the fundamental principle of open elections and open government, are at the heart of the purpose and operation of the FOI Act, and they necessarily continue after the election has been concluded.
46. These considerations, that the information was voluntarily provided by Mr Stephens to support his own candidature for public office and therefore be open to scrutiny, that the Electoral Act requires that information to be made publicly available and it has already been made publicly available under that Act, in my assessment support the conclusion that disclosure of the information would not be unreasonable.
47. However, there are also other considerations relating to the personal nature of the information, namely Mr Stephens' residential address. Concerns have been raised that disclosure of this information would impact negatively on the privacy of Mr Stephens and his wife, and in particular his wife has expressed personal concerns and anxiety about privacy and security.
48. In my view the importance of personal privacy in this context is compromised by the fact that it was Mr Stephens who made the decision to place his residential address in the public domain by choosing to run for public office but not placing his address on the silent electoral roll. He did not take this action until February 2021. In addition, I note Mr Stephens has posted on his own social media account otherwise private photographs, suggesting he is prepared to disclose private matters in some circumstances. I am not criticising Mr Stephens for posting such pictures: this is an aspect of his public position, but it underlines that one dimension of that public position requires the acceptance by him of some blurring of the lines between public and private. Mr Stephens' wife is not a public official and is entitled to the privacy of a private citizen, and the protection of the privacy of individuals is a matter of public interest. Nevertheless, in my view it is reasonable to assume that her concerns and the impacts on her, negative as well as positive, of Mr Stephens' public role, were matters likely to have been taken into account by him when he made his decision to make himself available for public office.
49. The matter of security raises other concerns. Mr Stephens in his submissions to the Ombudsman referred to recent circumstances where political candidates in South Australia were subjected to distasteful incursions into their private lives by members of the public during election campaigns. However, there was no evidence, anecdotal or otherwise, of such conduct occurring toward the families of candidates, or such episodes occurring frequently or outside election campaigns. They were addressed by policing and other security arrangements. The use of the silent electoral roll system can also assist, and Mr Stephens has now put this in place. I do not accept Ms Kereru's submission that the February 2021 inclusion of Mr Stephens' address on the silent electoral roll should have a retrospective application and transform material which at the time it was generated was publicly available, into material which is now unavailable to the public. At that time the information was required by law to be publicly available and was presumably made publicly available as required by the Electoral Act. In any event, I am not satisfied there is a sufficient basis to conclude that the bare personal anxiety that there may be security concerns, without supporting evidence, makes the disclosure of the information unreasonable.
50. I note further the discussion of this issue in Colokowski v Australasian Telecommunications Corporation ([1991] [1991] FCA 152; 29 FCR 429). In that case the Federal Court considered the criterion of unreasonableness in a similar statutory context through the lens of whether the proposed disclosure would serve the public interest purpose of the legislation, which is to open to the public, access to information about government which government holds on behalf of the public. The Court drew a distinction between information concerning government, and information to merely satisfy curiosity about the person to whom it relates, the disclosure of which was suggested would be unreasonable. The Court concluded that the exemption for the protection of personal affairs exists not to protect private rights; rather it is in the furtherance of the public interest that that information of this kind be excepted from the general right of public access, [provided the terms of the applicable exemptions] are satisfied.
51. In my view the considerations in Colokowski are relevant and useful in this matter. The information sought to be disclosed is information concerning government (in the broad sense of the establishment and provision of open democratic governance in South Australia), and is not information which is sought for or will address mere curiosity about Mr Stephens' personal circumstances. The submissions put in favour of withholding disclosure turned on a consideration of the private interest of Mr Stephens and his wife in their anxieties concerning privacy and security. It is the case that private concerns about privacy and security are matters of public interest, but the Tribunal's consideration must be whether these expressed concerns are subjective concerns only, or whether they identify objective and real concerns about privacy and security in the context of the public interest.
52. I am satisfied they do not. Other legislation already provides for the disclosure of the information sought to be kept private on the basis of these personal concerns, and there is no substantive information before the Tribunal to suggest that Mr Stephens' or his wife's privacy and security are threatened. Mr Stephens' photographs on his social media indicate he is prepared to disclose some identifying aspects of his private domestic activities.
53. For these reasons I am satisfied that it is not unreasonable to disclose the information in the document, even though it contains information concerning Mr Stephens' personal affairs.
54. I note that the disclosure which is sought applies in relation to the address contained in the document only, not the personal telephone number contained, and I am satisfied that disclosure of the personal telephone number would be unreasonable and the telephone number comes within the exemption of cl 6(1) of Sch 1 of the FOI Act.
The issues raised in the Applicant's oral submissions
55. These submissions turned on the assumption that the Applicant in fact knew the address provided by Mr Stephens on the Nomination Form, identified in these reasons for decision as the Victor Harbour property, and related to Mr Stephens' use and dealings with that property; and whether cl 6(1) of Sch 1 of the FOI Act applied in relation to the information assumed to appear in the document, if those submissions concerning the use and dealings with the property were accepted.
56. Ms Hamlyn submitted that the address provided in the document, the information sought to be disclosed, is the address identified to the Ombudsman in the Respondent's solicitors' letter of 15 January 2021. The address is identified as the Victor Harbour property. Ms Hamlyn then made submissions concerning the use and dealings in relation to the property.
57. The information and evidence Ms Hamlyn presented to the Tribunal relating to the Victor Harbour property was not challenged by the respondent. Evidence was presented in support of the assertions made by Ms Hamlyn.
58. I accept the evidence Ms Hamlyn presented. I am satisfied that the evidence establishes that Mr Stephens claimed the Victor Harbour property as his usual place of residence in 2011, but from March 2017 the Victor Harbour property was advertised and let as a short-term rental. From May 2017 Mr Stephens began claiming Country Members Accommodation Allowance in relation to a different address at Victor Harbour (the leased apartment). On 13 February 2018 Mr Stephens lodged the Legislative Council Nomination Form which contains the address of his usual place of residence. Ms Hamlyn submitted the address provided was of the Victor Harbour property. In April 2019 Mr Stephens updated his electoral roll registration to list the leased apartment as his nominated address, and on 20 May 2019 the Victor Harbour property was sold.
59. On the basis of these circumstances Ms Hamlyn submitted that the exemption provided in cl 6(1) had no application. She submitted that if the address on the Nomination Form was as she believed, of the Victor Harbour property, this could not constitute information concerning Mr Stephens' personal affairs, as at the time he made the declaration he had not lived in the premises for more than 18 months (since about March 2017), and it was not information concerning his personal affairs now or at the time the application was made, because he had not owned the Victor Harbour property since May 2019. She further submitted that even if his former ownership of the Victor Harbour property did amount to information concerning his personal affairs, it would not be unreasonable to disclose the information since he had provided it, it was already in the public domain, and there could be no issue of threats to privacy or security to him or his wife since they did not own or occupy the property, and it did not identify where they did live.
60. I do not have to make any decision on the basis of these submissions as I have already determined that the information should be disclosed. However, I am satisfied that if the address provided in the Nomination Form is as assumed by the applicant, the submissions are powerful. Even if information concerning prior property ownership and a prior residential address can be regarded as information concerning personal affairs (as I think it probably should be), it is difficult in the circumstances of this matter and bearing in mind the nature of the submissions made by Ms Kereru for the Respondent, to see any basis on which it could be argued it would be unreasonable to withhold the information. It is already in the public domain (put there by Mr Stephens), and its disclosure will not threaten his or his wife's privacy or security.
61. I have had regard to the material that was before the Ombudsman and to the oral and written submissions put before the Tribunal in the course of this review.
62. I am satisfied that the decision the subject of this review is neither correct nor preferable.
63. I am satisfied that the decision is not correct as I have concluded that although the information concerns the personal affairs of a person, namely Mr Stephens, it is not unreasonable to disclose that information. It is not a preferable decision because it does not appropriately establish that the document and information contained therein comes within the exemption set out in cl 6(1) of Sch 1 of the FOI Act.
64. On the basis of the submissions and evidence and for the reasons given above, I am not satisfied that the Ombudsman's conclusion, that disclosure of the information "would unreasonably displace the public interest in maintaining the applicant's personal privacy, particularly in circumstances where the agency sought consent and the applicant declined to provide consent to the disclosure of his address. Further, the disclosure of the address would undermine the silent elector system". In this matter, although Mr Stephens did indicate that he did not want his residential address provided in the Nomination Form disclosed, the provisions of the Electoral Act 1985 dictated otherwise, and the "silent elector system" concealing Mr Stephens' residential address had not been invoked by him at that time.
65. I do not accord any significant weight to the Ombudsman's decision in this matter as I have concluded that there are relevant considerations that were not taken into account in making the Determination, and there were other matters which should not have been considered.
66. It is also my view that the Ombudsman should have considered submissions from Mr Martin as the original applicant for the release of the information and as an interested person, and taken into account his particular interest as a public broadcasting reporter. As such, any decision made by the Ombudsman was likely to have an impact on Mr Martin and affected his rights. It should not be assumed that the submission to the Ombudsman from the Electoral Commissioner reflected Mr Martin's likely submission. Nevertheless, any failure of procedural fairness is addressed by this review as Mr Patrick's submissions have been heard and considered in full.
67. I am satisfied that the Determination of the Ombudsman made on 11 March 2021 should be set aside and that the Tribunal should substitute the original decision made by the Electoral Commissioner on 18 December 2020, to release the information sought in the document. I note this decision extends to the release only of the address provided on the Nomination Form and does not extend to the release of the personal mobile telephone number provided.
68. At the hearing of this matter I made an order pursuant to s 60(2)(b) of the SACAT Act prohibiting the publication of the subject matter of these proceedings until the determination of the matter. I directed that the order would be reviewed then and it was agreed that the parties could make submissions on the review of that order. I shall make directions for the provision of written submissions on the s 60 order and will review and determine that order on the basis of the written submissions received from the parties.
1. I direct that the decision subject to review in this matter, the Ombudsman's Determination of 11 March 2021, be set aside, and substituted with the following order.
2. I direct that the residential address information contained on the Nomination Form be released to the Applicant (but not including the personal mobile telephone number provided on the form).
3. I direct that the order made on 30 July 2021 pursuant to s 60(2)(b) of the SACAT Act remain in place until reviewed.
4. I direct the parties to file with the Tribunal and serve on each other written submissions relating to the review of the order made pursuant to s 60(2)(b) of the SACAT Act by 12 noon Tuesday 31 August 2021. The Tribunal will then determine the review of the s 60 order on the basis of those written submissions.
Martin
Electoral Commissioner & Anor [2021] SACAT 86
(2008) 23 VR 223