Orfali v Australian Information Commissioner

DECISION SOUGHT TO BE REVIEWED 15 The course of events leading to the decision under review, and the nature of that decision, are set out in the affidavit of Ms Sainty, which was read by the respondent in the proceeding. 16 By a letter dated 23 June 2016 Mr Orfali lodged his complaints with the Commissioner. Ms Sainty deposed and Mr Orfali did not contest that the Commissioner had delegated to Ms Sainty the conduct of his privacy complaints. Mr Orfali had something to say about Ms Sainty's level of experience, and did not agree with the delegation, but he did not suggest there was anything unlawful about the delegation. Mr Orfali also sent several other letters, adding to the considerable bundle of material he had initially lodged. The material he lodged consisted of more than 600 pages. 17 The entirety of that material was in evidence before me. It consists of lengthy documents composed by Mr Orfali setting out his concerns about which individuals, entities and agencies have what he considers to be unlawful access to information about him, and indeed to his own person. His complaint to the Commissioner also annexes to these documents extracts from publicly available material which Mr Orfali contended to the Commissioner contained references to him and insults and threats against him. The people and entities against whom the complaints were made were: (1) Nine Network Australia Pty Ltd (2) Australian Broadcasting Corporation (3) Minister for Education (4) Minister for Health (5) Department of Human Services (6) Attorney-General's Department (7) Minister for Employment (8) Office of the Prime Minister 18 Mr Orfali also described in these documents what he considered to be a long and wrongful history of conduct by various mental health authorities, and hospitals, in relation to him. Mr Orfali pieced together information from a number of sources to which he referred and, through this piecing together, sought to make out his allegations that he had suffered from what he described in his complaint variously as "serious compromise to my privacy by paparazzi operatives with links to certain affiliated conglomerate media companies as well as Social Media and collusion from the Federal and State Governments" and "secret wheeling and dealing conferred by politicians that sought to take advantage of breaches to my privacy and the dissemination of information to seize opportunities pertaining to innovative ideas that were conceptualized and initiated by me were convened in favour of the self-interests of large conglomerate companies". 19 In his complaint, Mr Orfali contended to the Commissioner that his privacy was breached by these individuals and entities in a broad range of ways, but one example was the following: These deals were convened whilst I was being subjected to gruelling taunting via frequency operated types of inconspicuous Taser devices that were implanted on me in hospital settings and boasted about to a flagrant degree in the Oct. 2 2010 edition of the New Scientist and other supporting sources of information subject to the knowledge of respective State and Federal Governments Ministers and agencies, and convened via the implementation of antiquated draconian homophobic laws that were overseen by the Mental Health system and certain branches of DHS, and are being arrogantly censored irrespective how much proof I have provided. 20 The implanting of a device to which Mr Orfali refers appears to be related to medical procedures he underwent in June and July 2008. His references to the 2 October 2010 edition of New Scientist appear regularly throughout his material. 21 Some email correspondence occurred between Mr Orfali and Ms Sainty after he lodged his complaint, the details of which need not be set out. On 18 July 2016, Ms Sainty sent Mr Orfali an email attaching a letter from her about his privacy complaints. In substance this letter set out her then views about his complaints and indicated that she was inclined to decide not to investigate his complaints as she had formed the view they were lacking in substance. She invited Mr Orfali to respond to her then views in writing by 1 August 2016. 22 Mr Orfali did respond by the date given. His capacity to respond within the time Ms Sainty stipulated is not without significance to the present application for an extension of time. Indeed, Mr Orfali was able to submit an extra almost 200 pages of material with his response on 1 August 2016. However, he did ask for extra time to formulate a better presentation and thereafter Ms Sainty twice extended the time for his response. After he informed Ms Sainty and her superiors that his computer was broken, Mr Orfali was given a further extension. Finally, on 17 August 2016 Mr Orfali, in a series of emails, submitted another more than 50 pages of materials. On the evidence before me, the additional material he submitted was of the same kind and character as his original material. 23 Ms Sainty then deposes to what happened when she made her decision: On 22 August 2016, I telephoned the Applicant and we had a conversation with words said to the following effect: Me: "I am calling to advise that OAIC has made a decision and we have not changed our view. Accordingly, we will be closing our files." Applicant: "This is the wrong decision. I will be exercising my review rights." Me: "Okay." Applicant: "Why are the review rights external? Me: "Having an external review right allows for impartial review." On 22 August 2016, I sent an email to the Applicant, attaching a letter from OAIC addressed to the Applicant regarding his privacy complaints. 24 After this, the only substantive contact with the applicant was when he called the Commissioner's enquiry line on 20 September 2016. He spoke to another officer, asking if the 28-day period within which to seek review of the decision was calendar or business days. This was after the 28-day period expired. He did not, in any event, file the application within 28 business days. 25 Ms Sainty gave comprehensive reasons for her decision under s 41(1)(d). Although lengthy, it is appropriate to set them out: Your privacy complaints You allege that your privacy has been interfered with by various entities. You have provided various documents that you consider support your claims, including the additional documents provided by you in your response to the OAIC's preliminary view. Some of the allegations you have made include: • that paparazzi with links to media companies such as ABC and Nine have compromised your privacy • that various State and Federal Government agencies and ministers have been involved in collecting and using or disclosing ideas that were conceptualised and initiated by you • that your physical privacy has been interefered [sic] with via implanted devices • that opinions regarding your sexuality, religion and race have been disseminated by various entities • that your privacy was compromised via social media with the Government's knowledge • that your personal information and opinions about you have been disseminated via the medium of 'New Scientist' magazine by various entities • that a brochure for Superannuation contained threats against you. Please note the above list is not intended to be an exhaustive summary of all your allegations. Our view Whilst I acknowledge that you consider you have provided clear and definitive evidence of the interferences with your privacy, I consider your complaints about the entities listed above, lack substance. From the information you have provided, it appears your privacy concerns that fall within the OAIC's jurisdiction primarily relate to the collection, use and disclosure of your personal information by the entities listed. However, I also acknowledge you state that this is 'only partially true' as you consider the scope of your complaints is much wider. I note you have referred to threats made against you, corruption and violation of your human rights, however these are not issues that fall within the OAIC's jurisdiction. I note you have provided numerous documents you consider support your claims. However, I do not consider these documents provide conclusive evidence that your personal information has been improperly collected, used or disclosed by the entities you have complained about, as you allege. I note that section 6 of the Privacy Act states that: Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not. The documents you have provided, such as copies of New Scientist articles, advertisements you have found in magazines, and the superannuation brochure of 2005, do not contain any information that reasonably identifies you. The documents you have provided that do identify you do not demonstrate any interference with your privacy, as defined in the Privacy Act. Further, there is no information in your complaints or supporting documents to demonstrate a link between the events you allege have taken place, and the entities you allege are responsible. I also note that much of your complaint relates to entities that would not be within the OAIC's jurisdiction, or would fall under one of the exemptions in the Privacy Act. In relation to some specific allegations you have raised, I have outlined why the OAIC would not be able to assist below. You have identified concerns regarding Nine and the ABC and various other media outlets. However, the Privacy Act exempts the actions of media organisations, when the act or practice is done in the course of journalism, as set out under section 7B(4). This means that the Australian Privacy Principles (the APPs) in the Privacy Act do not regulate the handling of personal information by media organisations, when it is done in the course of journalism. A media organisation can claim the exemption if it is publicly committed to observing published, written standards that deal with privacy in the context of the activities of a media organisation. You have also identified concerns regarding various State bodies. I note the OAIC cannot deal with matters about State, Territory or local government bodies. This is because, with the exception of Norfolk Island, neither the Privacy Act or the Freedom of Information Act 1977 covers State and Territory government bodies, including local governments, public hospitals, public schools, public universities or state and local police. If your enquiry relates to a State or Territory government body, you will need to contact the relevant privacy or FOI regulator in your state. You have raised concerns regarding the implanting of devices on/in your body. In the Privacy Act, the definition of 'holds' states that an entity only holds personal information if the entity has possession or control of a record that contains the personal information. As such, the OAIC cannot investigate interferences with your physical privacy. Finally, I note that many of the incidents you have outlined in your complaints and supporting documents appear to have occurred more than 12 months ago. Section 41(1)(c) of the Privacy Act gives the Commissioner the discretion not to investigate a complaint if he is satisfied that the complaint was made more than 12 months after the complainant became aware of the act or practice. As such, even if there were substance to your complaints the OAIC would not investigate many of the allegations you have raised on the basis that they occurred a considerable time ago and you have been aware of them for more than 12 months. I acknowledge your advice that you consider you have been pursuing your concerns consistently through other bodies and that you did raise concerns with the OAIC (at that time the Office of the Federal Privacy Commissioner) in 2003 and that, as such, s 41(1)(c) would not apply in your instance. However, I wish to clarify that the OAIC is not declining to investigate your complaint under s 41(1)(c) on this occasion. Rather the OAIC is alerting you to the fact that you would generally need to bring a complaint to our office within 12 months of been made aware that the act or practice has occurred. Decision I acknowledge that you consider the material you have provided to the OAIC contains information about you and threats directed at you that you find extremely distressing. However, based on the available information, I am unable to conclude that there has been an interference with your privacy under the Privacy Act. Therefore, for the reasons set out above and in my letter of 18 July 2016, I have decided under section 41(1)(d) of the Privacy Act to decline to investigate your complaint on the grounds that it is lacking in substance.

RESOLUTION 39 The respondent opposes the grant of an extension of time, contending there is no reasonable explanation for Mr Orfali not filing his application within time, that the proposed grounds of review have no reasonable prospects of success, and that there are no other discretionary factors weighing in favour of extending time. The respondent properly accepts there would be no prejudice to the Commissioner if time were extended. 40 The evidence about his dealings with the Office of the Commissioner shows that Mr Orfali is well aware of the importance of time limits. He sought extensions of time and, it would appear, when they were granted, sought to do his best to comply with them. I find Mr Orfali is not the kind of person who deliberately flouts, or is reckless about, time limits. Rather, he attempts to be compliant with processes and rules for those processes. That has been the way he has behaved in relation to the conduct of this proceeding to date. 41 I accept his evidence that he was somewhat overwhelmed by the task of compiling his application for judicial review. On the evidence, it is clear Mr Orfali puts a tremendous amount of personal effort and time into the documents he prepares. I accept the documents he submits to various agencies, tribunal and courts are extraordinarily time consuming for him to prepare, and emotionally taxing. I also accept the email evidence he provided showing the efforts he made to file judicial review documents on, or at least near, the 28-day deadline. 42 If Mr Orfali had put forward any grounds of review which were reasonably arguable, and had some prospect of success, I would have been inclined to consider extending the time in which his application for judicial review could be brought. However, although I do not doubt the strength of his opposition to Mr Sainty's decision, he has in my opinion not raised any arguable grounds of review. His prospects of success on judicial review are so low that I do not consider it is in the interests of the administration of justice to extend time, because on the material Mr Orfali has presented I am compelled to find his application will not be successful. 43 As to the first proposed ground of review (denial of procedural fairness), in my opinion Ms Sainty gave Mr Orfali more than a reasonable opportunity to be heard. In fact, she gave him a fulsome opportunity, in a sympathetic way. She was in correspondence and telephone contact with him, she allowed him to file additional documents on several occasions, and she (and then her superiors) granted several extensions of time. She also gave him notice, in writing, of what her current attitude to his complaint was and gave him a chance to deal with her preliminary approach. He availed himself of that opportunity and submitted another 200 pages of submissions and information. 44 The second and third proposed grounds of review can be dealt with together, because both complain of bias, in different language. 45 In Charara v Commissioner of Taxation [2016] FCA 451 Wigney J set out (at [112]-[115]) the applicable principles in assessing a claim of apprehended bias in relation to an administrative decision-maker. I respectfully agree with his Honour's summary: [T]he question is whether a fair minded lay-observer might infer from the Tribunal member's conduct of the hearing that the Tribunal member might be predisposed against Mr Charara and not open to persuasion: that there was nothing Mr Charara could say or do to change the Tribunal member's preconceived views: Re Refugee Review Tribunal; Ex parte H and Another [2001] HCA 28; (2001) 179 ALR 425 at 435[29]-435[31]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531[71]; NADH of 2001 v Minister for Immigration and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 265 at 268[16]-269[19] (Allsop J, Moore and Tamberlin JJ agreeing); SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80. Such an apprehension must be "firmly established": Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546. Allegations of apprehended bias must be "distinctly and clearly proved": Jia Legeng at 531[69]; and should not be too readily acceded to lest parties are encouraged to have their applications heard and resolved by someone thought to be more likely to decide the case in their favour: JRL at 352. The hypothetical reasonable lay-observer is integral to the objective test. The observer should not to be taken to be someone who is wholly uninformed and uninstructed about the matter to be decided: rather, they should be taken to be someone who had an understanding of the circumstances and nature of the proceeding: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [53] (Kirby J). They would be someone who was neither complacent, nor unduly sensitive or suspicious: British American Tobacco Services v Laurie [2011] HCA 2; (2011) 242 CLR 283 at 306[47] (French CJ); Johnson v Johnson at [53] (Kirby J). In considering whether apprehended bias based on the conduct of a decision-maker in the course of a hearing has been made out, each case must be considered having regard to its own particular facts and circumstances. Observations and findings made in previous cases may be of some assistance. Care must be taken, however, not to transpose general statements or findings made in other cases to what may be quite different facts or circumstances in the matter under consideration. 46 A similar test applies for actual bias, although in that case what is examined is not the observations of a hypothetical observer, but the actual attitudes, circumstances and state of mind of the decision-maker. It is an allegation made less frequently, and rightly so. The key is, as the High Court said in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [7]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ), the identification of what is said to be the matter or matters that might lead a person to decide the application other than on its factual and legal merits. This approach needs to be applied to allegations of both actual and apprehended bias. 47 In the present case, neither actual nor apprehended bias in making a decision on Mr Orfali's complaint can be attributed to Ms Sainty. 48 There is no basis in the evidence to consider that Ms Sainty failed to bring an open mind to Mr Orfali's complaint. It is clear from her reasons she spent an appropriate amount of time in understanding his complaint and trying to ensure she encompassed what he was concerned about. She then dealt with what he contended in a thorough way. Mr Orfali has not adduced any evidence which satisfied me Ms Sainty did not have a mind open to persuasion. Nor has he adduced any evidence to satisfy me that there was a reasonable apprehension of bias in respect of her decision-making process, in the sense described in the authorities. 49 Further, on the basis of the approach taken by Sir Ronald Wilson in Assal, it was open to Ms Sainty to consider there was nothing more than a "remote possibility of merit" in Mr Orfali's complaint. I do not consider there is any arguable basis on which it could be said Ms Sainty's decision was legally unreasonable in the sense described by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [63]-[76] (Hayne, Kiefel and Bell JJ). 50 It was open to Ms Sainty to determine that the kinds of disclosures relied on by Mr Orfali were not capable of constituting interferences with his privacy. 51 The respondent submitted, as examples: 30 In the present case, a review of the extensive materials which Mr Orfali provided in support of his privacy complaints shows that they contain broad and unsubstantiated allegations. The Commissioner does not propose to traverse each of the eight privacy complaints made by Mr Orfali, or the voluminous materials provided to the OAIC in support of the complaints, however two examples will suffice: (a) Mr Orfali alleges that a New Scientist magazine dated 2 October 2010, amongst other things, contains a plethora of untoward innuendos and messages of threats towards Mr Orfali, which are used to compromise Mr Orfali's privacy. The New Scientist magazine does not contain any information that reasonably identifies Mr Orfali (directly or indirectly); and (b) Mr Orfali alleges that a 2005 superannuation fund brochure contains references to Mr Orfali's religion, links to threats to kill Mr Orfali or other submissions posed by Mr Orfali. The brochure does not contain any information that reasonably identifies Mr Orfali (directly or indirectly). 52 I accept these are appropriate examples. Ms Sainty referred to the absence of any connection with the statutory concept of personal information in her reasons: The documents you have provided, such as copies of New Scientist articles, advertisements you have found in magazines, and the superannuation brochure of 2005, do not contain any information that reasonably identifies you. The documents you have provided that do identify you do not demonstrate any interference with your privacy, as defined in the Privacy Act. Further, there is no information in your complaints or supporting documents to demonstrate a link between the events you allege have taken place, and the entities you allege are responsible. 53 Ms Sainty also dealt with the limits on the Commissioner's jurisdiction in relation to some of the matters above which Mr Orfali complained. 54 Finally, I do not accept Mr Orfali's submissions that in her decision Ms Sainty made any offensive "innuendos" or "insults" of the kind he alleged, nor (as he contended) that any were made in the respondent's submissions. 55 The application for an extension of time must be refused. 56 The Commissioner sought an order that Mr Orfali pay the Commissioner's legal costs of the application, in the event it was refused. The Commissioner's legal representative informed the Court the party/party costs to date were approximately $20,000. It is the case that costs would usually follow the event in an application such as this. However, the Court has a broad discretion under s 43 of the Federal Court of Australia Act 1976 (Cth). This was an interlocutory application for an extension of time, and the matter is being finally determined at an early stage. Mr Orfali has conducted the proceeding cooperatively and that assisted in securing an early hearing date. A costs order would represent a very large sum of money from Mr Orfali's perspective. In the present case, I find that Mr Orfali's apprehensions about the Commissioner's decision, and the review function of this Court, are affected by his very personal views of the world around him and the threats and persecution he views himself as constantly subjected to. In circumstances where a person with those views of the world, and his place in it, seeks a remedy from a court in circumstances where there is clearly no legal basis for such a remedy, I do not consider it is in the interests of the administration of justice to place such a person under further pressure by the significant financial detriment of a costs order, which may then be enforced against him and cause him to suffer further harm. See also Ryan J in Gao v Federal Privacy Commissioner [2001] FCA 1683 at [11]. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (22)