Freedom of Information Act 1982 - ss. 3, 4, 11, 12, 41.

1. the decision under review that the Act does not apply to the document in question is set aside;

2. the decision under review that access as sought to the document claimed should be refused for that the document is an exempt document under s.41 of the Freedom of Information Act 1982, is affirmed.

This is an application for review of a decision made under the Freedom of Information Act 1982 ("the Act"). The applicant applied to the respondent Department (presumably in reliance upon s.11 of the Act), for access to "documents which shall show the signature of a ...(named)... man". The application went on "this is not a request to delve into his personal background or history, merely for verification of a signature". The applicant's motivation does not appear relevant in this case on the surface; but was explained in evidence given by him before this Tribunal, as originating in certain incidents involving service of documents, and as relating to an affidavit of service of documents filed in certain Family Court proceedings. I will take up this last mentioned matter later.

2. The respondent by telex messages initiated enquiries of all its offices - with no result in the early stages of enquiry. Eventually a microfiche of an "Inward Passenger" card compiled and apparently signed in 1973 by the person named, upon an entry to Australia, was located. Upon consideration, the view was formed that disclosure of the details of this document would be "an unreasonable disclosure of information relating to the personal affairs" of the person named (sub-section 41(1) of the Act). A primary decision was taken on this ground, to refuse access.

3. The applicant requested an internal review of the primary decision, asserting (in effect) his contention that disclosure of the signature sought would not be unreasonable when the background to his application, including allegations as to forgery of a signature on an affidavit and of threats of personal violence to himself were considered. Hence the Tribunal is taken back to the possible relevance of motivation in one respect.

4. After internal review, the decision was taken that access as sought, namely to the signature alone, would not be granted upon two grounds, which were stated as follows:-

"1. As the document was created before 1 December 1977,

and because it does not relate to the personal

affairs of the applicant, the document is outside

the scope of the Act;

2. Even if the document was within the scope of the Act

release of the document to the applicant would be an

unreasonable disclosure of information relating to

the personal affairs of any person (sic), in this

case, ... the person named. (Section 41 of the Act

refers). Release would be unreasonable because of

the lack of the person named's consent to such an

action. The reason for claiming exemption under

these provisions in my view outweigh the claim for

access made by the applicant.

Consideration was given to deleting all personal

details of the person named on the card apart from

his signature. However, the disclosure of the

signature alone was regarded as impinging

unreasonably on the personal affairs of the person

named, as he had not consented to its release."

S.11 of the Act so far as relevant, provides:-

"11. Subject to this Act, every person has a legally

enforceable right to obtain access in accordance with

this Act to-

(a) a document of an agency, other than an exempt

document; or

(b) . . . . . . . . . . . . . . . . . . . . . . ."

S.3 of the Act so far as relevant, declares and enacts

as follows:-

"(1). The object of this Act is to extend as far as

possible the right of the Australian community to

access to official information of the Government of the

Commonwealth by-

(a) . . . . . . . . . . . . . . . . . . . . . . .

(b) creating a general right of access to information

in documentary form in the possession of ...

departments ... limited only by exceptions and

exemptions necessary for the protection of essential

public interests and the private and business affairs

of persons in respect of whom information is collected

and held by departments and public authorities.

(2). It is the intention of the Parliament that the

provisions of this Act shall be interpreted so as to

further the object set out in sub-section (1) and that

any discretions conferred by this Act shall be

exercised as far as possible so as to facilitate and

promote, promptly and at the lowest reasonable cost,

the disclosure of information."

S.12 of the Act so far as relevant, provides (emphasis

added):-

"(1) . . . . . . . . . . . . . . . . . . . . . . .

(2) A person is not entitled to obtain access under

this Part to a document or a part of a document that

became a document of an agency or an official document

of a Minister more than 5 years before the date of

commencement of this Part unless

(a) the document or that part of the document contains

information relating to the personal affairs of that

person; or

(b) the document or that part of the document is a

document or a part of a document access to which is

reasonably necessary to enable a proper understanding

of a document of an agency or an official document of a

Minister to which that person has lawfully had access.

(3) Regulations may be made for the modification of

sub-section (2) so as to enable a person to obtain

access under this Part to documents to which, but for

the making of those regulations, he would not be

entitled to access under this Part by reason of that

sub-section.

(4) . . . . . . . . . . . . . . . . . . . . . . ."

S.41 so far as relevant provides:-

"(1) A document is an exempt document if its disclosure

under this Act would involve the unreasonable

disclosure of information relating to the personal

affairs of any person..."

5. The applicant appeared for himself. In so far as I was able, I endeavoured to stimulate lines of submission both from him and the Departmental representative, to some effect that might lead to an interpretation of sub-section 12(2) which might overcome the apparently insuperable obstacle presented by it. So far as my personal research has gone I have not found any regulations made under sub-section 12(3) that would modify the effect of sub-section 12(2).

(a) the document to which access is sought was brought

into existence and handed to the Department in 1973

and thereby became a document of an agency

(definition s.4(1));

(b) Part III of the Act in which s.12 appears, came

into effect on 1 December 1982 (Gazette G48 of 30

November 1982);

(c) the document in question does not relate to the

personal affairs of the applicant;

(d) no submission was made to the effect that access to

the document sought is reasonably necessary to

enable a proper understanding of a document of an

agency to which the applicant has lawfully had

access.

7. However, "agency" includes "a prescribed authority" (sub-section 4(1)); and a court is deemed to be a "prescribed authority" (s.5A). Mr. Corkin gave evidence that he had lawfully been given access to an affidavit of service made by the person named in Family Court proceedings involving himself. In the strict sense, access to a person's signature on an inward passenger's card might not be thought necessary to an "understanding" of the contents of an affidavit apparently sworn to and signed by that same person. However, in so far as Mr. Corkin's contention as I understand it, is that that particular document (the affidavit) might have been forged, it can perhaps be allowed to be urged that access to another document (that in question) is reasonably necessary to enable a proper understanding of the very nature of the affidavit, that is, whether it genuinely is an affidavit by the person named or whether it be a forgery.

8. Giving a somewhat generous interpretation perhaps to sub-section 12(2)(b), with the intention of complying with sub-section 3(2), and promoting the object of the Act - the facilitation and promotion of ... the disclosure of information; I should be inclined to set aside the "claim for exemption" (if such it may be termed) so far as it relies on s.12. It thus becomes necessary to turn to the second ground of the claim for exemption - that under sub-section 41(1).

9. Undoubtedly the document the signature appended to which is sought to be viewed, as a whole should be regarded as "relating to the personal affairs" of the person named. Still one must turn, as the Department was required to do by s.22 of the Act, to elicit whether it be possible by deletions, to render no longer exempt, the document sought. In other words, should the signature itself be released to the applicant's inspection.

10. As one would expect, the phrase "personal affairs" is not defined by the Act; for it is a common English phrase. In applying it, the distinction made by the Law of Property between "personal" and "real" estate does not seem to be in point. But the Law discourses upon "personal - gifts, exertion, expenses, goods, injury, interest, jewellery, labour, luggage, occupation, ornaments, qualifications, representations, security, use" and so on.

11. The Shorter O.E.D. has the following entry for the word "personal" - "1. Of, pertaining to, concerning or affecting the individual person or self; individual; private; one's own. 2. Done, made, performed, held, etc. in person ... B. personal matters or things".

12. And for "affairs", its entry reads "ordinary pursuits of life; commercial or professional business; public business ...".

13. In recent centuries among literate people the signature has replaced the seal or the duly attested mark, as the device most commonly used by individuals to initiate action, to authorise, to authenticate action or written material, to verify or attest details of statements, and to identify the person making it by allowing a comparison of it with a verified signature already held.

14. The signature is of paramount importance in one's activities in banking and financial matters, correspondence, the making of applications, the giving of receipts. It constitutes the bond whereby one may be held responsible to others, to corporations, to government; and the authorization upon which others may depend for providing goods or services. Its exclusiveness and privity to the individual are the essence of its worth to him. The owner of a signature is entitled to control the extent of its circulation. One may therefore use differing signatures for different purposes. The maker of a signature does not readily make it available to others who might take advantage of its possession to imitate it without permission. It is I consider, in an especially marked way - private to the individual, one's own. Its making, its characteristics, its privacy constitute part of the individual's pursuits of life, his commercial, professional and public business. I take it to be part of his "personal affairs" as much as the contents of his wallet, his credit cards, his private correspondence; and I find therefore that its release to the applicant would amount to the disclosure of information relating to the personal affairs of the person named.

15. The signature in question was ex facie appended to a Departmental form as a pre-requisite to obtaining lawful entry to Australia. It purported to verify the accuracy of personal details disclosed at Governmental requirement. It was not willingly published to the world. Nor can the owner of the signature's consent to its present disclosure to the applicant be asserted or inferred. Indeed, in view of the allegations made in evidence by the applicant as to the course of dealings, if such they may be called, between the named person, others and himself; a strong inference to the contrary, namely that the named person would be unwilling to have it disclosed, may be inferred. In all the circumstances enunciated, and having regard to the essential privacy of the signature, I conclude the disclosure sought by the applicant under the Act would be unreasonable. The Tribunal should hold therefore that the document even with deletion of its matter other than signature, is exempt under s.41 of the Act.