The applicants, members of the APY Board, sought orders from the Tribunal that the Ombudsman's determination be set aside and substituted with a determination that the documents are exempt as documents containing information concerning personal affairs where disclosure would be unreasonable. The applicants advanced expert evidence relating to the cultural implications of disclosure of personal financial information for Anangu people. The applicants submitted that the evidence established that they each held genuine concern, which was soundly based, that they risked threats, defamation and intimidation if the information in the documents was made public.

The second respondent submitted that the expert evidence did not establish unreasonableness in respect of the proposed release of the sought information. He further submitted that he had no intention to shame anyone and that speculation regarding his intentions was insufficient to defeat his legislated right of access.

Held, setting aside and substituting the decision under review:

• The expert evidence is specific in the opinion that there is a reasonable basis for concluding that the release of the information in the documents would have an adverse effect upon the applicants in that they may be intimidated or harassed by others in the Anangu community if the information were disclosed and then disseminated more broadly;
• I am satisfied that the disclosure of the information in respect of the applicants would constitute an unreasonable disclosure of their personal affairs;
• The determination of the Ombudsman dated 25 November 2022 is set aside and substituted with a determination that the twenty documents that are the subject of the determination, are exempt documents pursuant to clause 6(1) of Schedule 1 of the Freedom of Information Act 1991.

Administrative Review - Freedom of Information Act 1991 - Person aggrieved by a determination of the Ombudsman on internal review- Whether a document is an exempt document - Documents affecting personal affairs

Anangu Pitjantjatjara Yankunytijatjara Land Rights Act 1981

Freedom of Information Act 1991 ss 3A, 18, 20, 40

South Australian Civil and Administrative Tribunal Act 2013 s 37

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

King v Department of State Development [2020] SACAT 7

Re Chandra and Minister for immigration and Ethnic Affairs [1984] AATA 437; (1984) ALN 257

Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227

Treglown v SA Police [2011] SADC 139

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

Mr K Tredrea and Ms R Morley on behalf of the applicants, in person

Mr R King on behalf of the first respondent, in person

Mr A Kerin on behalf of the second respondent, in person

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(b)

1. The applicants in this proceeding are Bernard Singer, Rex Tjami, Marita Baker, Julieanne Campbell and Tony Paddy. They are members of the Executive Board (Board) of the Anangu Pitjantjatjara Yankunytijatjara (APY).
2. The APY is a statutory body established under the Anangu Pitjantjatjara Yankunytijatjara Land Rights Act 1981.
3. The APY is an agency for the purposes of the Freedom of Information Act 1991 ("FOI Act"). This means that the APY must meet certain obligations under the FOI Act and that a person has a right of access to documents held by the agency subject to the provisions of the Act.
4. Mr Adamson is a former member of the Board. On 23 December 2021, he requested, pursuant to the FOI Act, access to documents held by the APY that would disclose Board fees received by the Board members.
5. Mr Adamson made 13 applications to APY, each relating to a particular individual member of the Board, seeking documents relating to payments and allowances made by APY to them (including the applicants in this review matter), such as:
   • Payments relating to sitting fees, salary, consulting fees, allowances
   • Vehicle allocation and usage, fuel vouchers
   • Air fares and accommodation
   • Purchase orders
   • Money sourced from the agistment or grazing of cattle on the APY Lands
6. The FOI applications were made on 23 December 2021. The agency's principal officer determined to refuse to deal with them on the basis of s 18(2a) of the FOI Act on 13 January 2022. Mr Adamson sought a review of the refusal, and for an extension of time to be imposed under s 14A.
7. The Ombudsman reversed these decisions in April 2022.
8. The agency then failed to deal with the application within 30 days but the principal officer of the agency then made a positive refusal on internal review dated 4 August 2022. Twenty documents were identified as coming within the scope of the request. Those documents are now before the Tribunal as part of the Ombudsman's decision-making documents.
9. Mr Adamson applied for external review on 5 August 2022 and the Ombudsman's determination was made on 25 November 2022.
10. The Ombudsman determined that the documents were not exempt documents. They were therefore required to be disclosed by the agency, subject to this review.
11. The applicants maintain that their personal affairs would be unreasonably disclosed if the documents were handed over to Mr Adamson. They sought a review by the Tribunal under s 40 of the FOI Act. It was not disputed that they are persons aggrieved with standing to bring the review. However, the review was brought out of time by approximately three months.
12. The applicants seek orders from the Tribunal that the Ombudsman's determination be set aside and substituted with a determination that the documents are exempt pursuant to clause 6(1) of Schedule 1 of the FOI Act which creates an exemption for documents containing information concerning personal affairs where disclosure would be unreasonable.
13. There was a preliminary question as to whether the FOI agency is the unincorporated Board or the statutory body known as APY. That preliminary issue was resolved by my ruling dated 31 July 2023 that the agency for the purpose of the FOI Act is APY.
14. The agency has not played any active role in these proceedings although its chief executive attended on the day of the hearing to observe.

1. The Ombudsman's determination, dated 25 November 2022, was that the earlier decision of the agency is reversed, the effect of which was that the documents in issue are to be released in full.
2. The applicants in these proceedings submitted to the Ombudsman that the FOI applicant's proposed use of the documents was to defame its (then) Chief Executive and them by using the information obtained to assert impropriety in relation to the payments made to, and received by, Board members.
3. The Ombudsman set out the issue in the following way:

[12] I accept that any disclosed intention with respect to the use of the requested documents may certainly be relevant to whether disclosure would be unreasonable, however as outlined in my provisional determination, the applicant is not required to identify his intentions to the agency or any other party. > > [13] I do however accept that a possible intention with respect to the use of the requested documents can be inferred from additional information provided by the three interested parties. Each of the parties has referred to a Facebook update apparently posted by the applicant which states: > > Ombudsman SA is dealing with the external review of King's refusal of 13 applications made under Freedom Of Information. These will reveal exactly what King has been prepared dangle [sic] in front of vulnerable board members to influence their opinions not only of himself, but of all sorts of things that he forces through the board's resolution process... > > [14] Each of the three interested parties have submitted: > > I am really concerned that if my personal information is disclosed in this matter, I will be defamed, just this [sic] post threatens to do. I enclose a copy of the Facebook post to let you know how bad this is. It is really threatening. I am afraid that the person operating this Facebook page might say that I am corrupt - just for receiving my Executive Board sitting fees and petrol allowance. > > [15] I disagree that the Facebook post indicates an intention to defame any of the interested parties. Rather, the focus is very clearly on Mr Richard King, who was not one of the interested parties. Additionally, I would query how the applicant could use the requested documents to the detriment of the interested parties if they merely reflect amounts appropriately paid as sitting fees or allowances. > > [16] I acknowledge that the mere fact that three interested parties have strongly objected to disclosure is relevant to whether disclosure would be unreasonable, however this is only one of many factors to be considered and is not, alone, determinative or whether the documents are exempt. Additionally, in this particular matter I have taken into account the strong possibility that objection to disclosure may be based on factors other than unreasonableness. > > [17] It is well known to my Office and the broader public that the agency's Executive Board is divided, and the relationships between those Board members can be described as strained at best. In the circumstances, I consider it possible that the objection of the three interested parties is largely fuelled by personal feelings about the applicant rather than a genuine concern that disclosure would be unreasonable.

4. The applicants argued that the Ombudsman's determination was wrong, insofar as clause 6(1) of Schedule 1 of the FOI Act applied to the documents the subject of the matter, and the Ombudsman ought to have so found.
5. The applicants submit that the Ombudsman erred at paragraph [43] of the determination in failing to find that the release of the documents amounted to unreasonable disclosure for the reason that such release would be culturally inappropriate.
6. The Ombudsman said at [43]:

On the information available it is not clear to me how the disclosure of financial information of an Anangu would be culturally inappropriate. Absent any explanation from the agency I am not inclined to place weight on this submission.

7. The applicants also submitted that the Ombudsman erred in failing to place any weight on the relevant consideration that the FOI Applicant had and has no direct personal interest in the documents the subject of this matter.
8. The Ombudsman said:

[44] I am also not inclined to place weight on the agency's submissions that disclosure might be 'unwarranted, unnecessary and unreasonable' noting that the applicant's reasons for seeking the information is unknown. Firstly, I consider that an approach which considers whether disclosure of agency information is warranted or necessary is not consistent with the objects of the FOI Act; the Act favours disclosure unless an exemption clause applies. The mere fact that the information has been requested indicates that disclosure is warranted or necessary subject to any applicable exemption clauses. > > [45] Secondly, the FOI Act does not require an applicant to explain their motives for requesting access to documents, or otherwise justify that disclosure is warranted. Rather, the onus rests with the agency to justify any refusal of access to documents. > > [46] I consider it appropriate to clarify to the agency that disclosure under the FOI Act has the potential to be disclosure to the world at large. Although the disclosure of information is unrestricted, its broader distribution is dependent upon the applicant.

9. The applicants contended that the Ombudsman erred at paragraph [48] of the determination in failing to find that release of the documents would likely have a chilling effect on the Anangu people putting themselves forward for election to the Executive Board of APY.
10. The Ombudsman said:

[47] Finally, I consider that the agency's submissions regarding the difficulty in appointing Executive Board members are more relevant to a claim of exemption under clause 16(1)(a). It is my view that, in the context of clause 6(1), 'unreasonableness' refers specifically to whether disclosure would be unreasonable from the perspective of the interested person, not the agency. > > [48] That said, to the extent that this submission may be relevant to clause 6(1), I consider it appropriate to turn my mind to whether the 'chilling effect' which the agency refers to could reasonably be expected to result from disclosure. Having considered all of the information before me, it is my view that it is not reasonable for Executive Board members to expect that information of the kind contained in the documents in issue will remain confidential. It therefore follows that it would not be reasonable to expect that disclosure of the information would lead to the 'chilling effect' the agency refers to. > > [49] In forming this view, I have had regard to the dual nature of the information in issue. Whilst the majority of the information does constitute personal affairs, very clearly the information also concerns the financial affairs of the agency. It appears to me that the majority of the information consists of a more detailed and itemised version of the information required to be made available to Anangu. It also appears that a portion of this information is published on the agency's website under 'APY Administration/Finance'. > > [50] I therefore consider that Executive Board members ought to understand that, insofar as their personal financial information also reflects the finances of the agency, the confidentiality of that information cannot be assured.

1. The determination of the Ombudsman was issued on 25 November 2022. The applicants were required to file their application for review by 25 December 2022 but did not do so until 22 February 2023. The applicants submit that cultural business upon APY Lands occurred from November 2022 until February 2023. They stated that the Executive Board of APY did not meet at any time between 25 November 2022 to 21 February 2023. It was only on 21 February 2023 that the applicants had the opportunity to take legal advice upon the determination of the Ombudsman and this application was filed with SACAT urgently and immediately after the applicants had taken legal advice.
2. The second respondent has not asserted any particular prejudice by the delay. Although it is not insignificant in the context of the time provided for by the FOI Act, I am satisfied that it is appropriate in the interests of justice to grant the extension of time to enable the review to be determined on its merits.
3. In the hearing on review, the primary contention that was ventilated by the applicants was that the disclosure of the information would be unreasonable when the cultural context of the information was properly understood.
4. In support of that contention, the applicants filed a report by way of expert evidence from an anthropologist about this issue.
5. I have had regard to the following documents:

a. Ombudsman's Final Determination - 2022/04492 (25 November 2022)

b. Schedule of Exempt Documents - by APY (29 March 2023)

c. Accompanied by a sworn Statement of Bernard Singer (30 March 2023)

d. Application for General Directions (31 March 2023)

1. "Second Respondent's Submissions on Directions 3 April 2023" (by Mr Adamson) (3 April 2023)

h. Expert report of Dr Diana James (11 August 2023)

iii. Ms Julieanne Campbell affirmed on 10 October 2023

j. Written submissions of applicants dated 18 March 2024.

k. Written submissions of the second respondent dated 19 March 2024.

1. The parties made oral submissions on 19 March 2024 and I reserved my decision.

1. The FOI Act creates a right of access to documents held by Government agencies subject to the various bases for refusal contained in s 20, the most litigated of which is that the document is an exempt document pursuant to one or more of the grounds of exemption contained in Schedule 1 of the Act.
2. The exemptions serve to carve out from the right of disclosure documents that contain information that may give rise to a stronger policy basis for denying or restricting access.

1. There is no dispute as to whether the documents contain information concerning the personal affairs of the applicants. The question is whether the disclosure would be unreasonable. It is not thereafter a balancing act of the applicants' and Mr Adamson's interests.[1]
2. The unreasonable disclosure of personal affairs is an outcome against which the exemption is directed to prevent.[2]

1. There are multiple FOI schemes across Australia, but each is differently worded and there is a need to be cautious about adopting the reasoning of a court or tribunal that has interpreted a similar provision from an interstate regime.
2. As far as I am aware, the scope of the exemption in clause 6(2) has not been considered by a superior court in this State.
3. The personal affairs exemption has on several occasions been considered by the District Court, which formerly conducted the role that the Tribunal now has. In Treglown v SA Police,[3] the Court determined that it was appropriate to adopt the analysis of the equivalent provision in the Freedom of Information Act 1982 (Cth) by the Administrative Appeal Tribunal in Re Chandra and Minister for Immigration and Ethnic Affairs[4] that all the circumstances must be considered including:

a. The nature of the information that would be disclosed

b. The circumstances in which the information was obtained

1. The likelihood of the information being information that the person concerned would not wish to have disclosed without consent

d. Whether the information has any current relevance

e. The relationship of the information to other information known to the applicant

g. The attitude of the person affected by the disclosure

i. Any disclosed intentions with respect of its use.

1. There has been some consideration given by interstate courts and tribunals as to whether the personal affairs exemption in equivalent legislation should be interpreted narrowly to protect only private affairs, or more broadly as that which connotes information which concerns or affects the person as an individual, whether it is known to other persons or not. The relevant authorities are summarised by the Queensland Information Commissioner in Stewart and Department of Transport.[5] In the South Australian legislation, the legislature has expressed its legislative intent by the inclusion in 2004 of s 3A as follows:

3A - Principles of administration > > (1) It is the intention of the Parliament -

(a) that this Act should be interpreted and applied so as to further the objects of this Act; and

(b) that a person or body exercising an administrative discretion conferred by this Act exercise the discretion, as far as possible, in a way that favours the disclosure of information of a kind that can be disclosed without infringing the right to privacy of individuals.

(2) Agencies are to give effect to this Act in a way that -

(a) assists members of the public and Members of Parliament to exercise rights given by this Act; and

(b) ensures that applications under this Act are dealt with promptly and efficiently.

1. This provision lends support to the legislative intent that the privacy interests of individuals whose information is held by Government agencies warrants protection, although it is a principle of interpretation and not the creation of a substantive right.

Consideration of King v Department of State Development

1. In King v Department of State Development,[6] Senior Member Stevens conducted a review of a decision by the Ombudsman by which a South Australian Member of Parliament was granted access to the employment agreement letter of the General Manager of the APY, Mr King. Mr King, who opposed release, was at that time the General Manager of the APY. There were several similarities in the arguments advanced by Mr King that are as now advanced by the applicants. In particular, Mr King argued that the disclosure of the details of his employment terms and his remuneration package "could be used by certain persons to seek to cause dissention against me on the basis of the income I receive, and the terms and conditions of my employment." Senior Member Stevens proceeded to conclude that the effect of the publication of information concerning the remuneration and the terms and conditions diminished the weight to be accorded to Mr King's opposition to disclosure, and found that the disclosure would not be unreasonable. There was, however, a significant difference in that matter and the matter that the Tribunal has to consider. Senior Member Stevens took into account that the terms and conditions of Mr King's employment had been disclosed in a newspaper article and that the publicly available annual report of the APY contained the salary of the General Manager. In the present case, no evidence was advanced to suggest that the information in the documents that are within the scope of this request contain information that is already in the public domain.

1. Dr Diana James has a PhD in anthropology with a special interest in the APY language, law and culture which she has studied over 45 years including by living in the community. Her expert report complies with the requirement of an expert report for the purpose of the proceedings. Dr James was not required to attend for cross-examination. Her opinions were unchallenged. Dr James' report spoke of the "profound cultural differences between the role of money and personal income in the western mainstream society and the hybrid-economy of post-colonial Indigenous remote communities."[7] Dr James opined:

Release of personal financial information of individuals on the APY Executive would publicly increase their moral obligations to share with all their extended kin across APY Lands. This puts incredible pressure on middle-aged women who in the Pitjantjatjara Yankunytjatjara moral economy are responsible for resolving family problems especially lack of money to care for children, the sick and the aged.[8]

The public disclosure of personal financial information is contra to the Anangu cultural tradition of 'demand-sharing', which respected people's autonomy as managers their wealth to take care of immediate kin then to share excess 'wealth' under the traditional rules of wider kinship moral obligations. Knight notes that within traditional kin-groups of up to 30, people made fine judgements about who was close, close-up, not too distant, little bit far away, and far away, in determining what demand-sharing was reasonable and what was greedy, bullying or humbugging.[9] > > The public release of private financial information can be used to publicly shame individuals under the modern expanded kin obligations of demand-sharing. An accusation or implication of non-sharing or personal greed can publicly defame the individual or Aboriginal organisation. This public shaming of individuals in the 'town square' on Facebook or other social media platform, is an aggressive act with malicious intent under current Anangu cultural laws and practices. Today with increased relationship density in settled communities and relationships across larger political aggregates like APY Lands the demands of distant kin can be overwhelming particularly for those in public office, like the APY Executive. Powerful individuals use traditional kinship obligations to demand financial or political support in the public arena of APY Executive and community meetings, on Facebook and other public media to coerce compliance or silence debate.[10]

If Anangu are known to have financial resources and are perceived to not be sharing appropriately they will be publicly shamed, defamed and can be subject to physical violence. Violence is widely considered to be a legitimate action, as regulated by traditional law, and continues to be condoned today in resolution of inter-familial disputes. Both women and men may resort to violent demand sharing. However, the personal strength and authority of adult men places women in a position of great vulnerability particularly if there are no appropriate male relatives to protect them. There are disincentives to interfere or intervene in another person's actions or behaviour, particularly when it concerns adult men (Sutton 2001:155).[11]

4. I accept the unchallenged evidence as to the consequences of disclosure on the applicants.
5. Mr Singer's affidavit affirmed on 20 September 2023 provided the deponent's opinion that the release of personal financial information of Board members may have a "chilling" effect on the willingness of Anangu to put themselves forward to be elected to the Board.[12] That opinion does not speak directly to Mr Singer's personal affairs. Mr Singer spoke to the experience of Anangu people of being subjected to harassment and shaming for sharing (humbugging). He says that he opposes release of his personal information.
6. Mr Paddy's affidavit, and that of Mr Tjami, both affirmed on 19 September 2023, were in identical terms to that of Mr Singer except that they did not have any annexures.
7. The Tribunal was advised that one of the applicants, Mr Anton Baker, passed away prior to the proceedings coming on for hearing.
8. Ms Campbell affirmed an affidavit on 10 October 2023, which included the following:

It's not good for people to know about my money. It spreads all over the APY lands. Any stories spread really quickly all over the APY Lands. Facebook, Instagram, SnapChat, X that Anangu all us a lot. > > People don't have much money out on the APY Lands or I you do, there is a family obligation to share it. Sometimes people can be really difficult about money and if they know you have some or have had some, but have need to spend it on yourself they will get angry and make trouble. I have 6 children and need my money to raise my children and I can't always share my money.[13]

1. Counsel for the applicants submitted that the evidence established that the applicants each held genuine concern, which was soundly based, that they risked threats, defamation and intimidation if the information in the documents was made public. Further, that there was no way of ensuring, if it were disclosed to the second respondent, that it would not become public and that in light of his previous public disclosures about the operation of the Board, it was reasonably likely that the information would come into the APY public domain.
2. Mr Kerin, on behalf of the second respondent, argued that the expert evidence does not establish unreasonableness in respect of the proposed release of this particular information in respect of these particular individuals. It was argued that there was no evidence of Mr Adamson's intention to shame anyone and that the speculation that he would was insufficient to defeat his legislated right of access.

1. The Tribunal's task is to consider the question of whether the documents are exempt documents, afresh. The documents are exempt if they contain information where the disclosure of which would be an unreasonable disclosure of the applicants' personal affairs.
2. In Bradshaw v SA Police; SA Police v Bradshaw,[14] Judge Muscat, when considering the 'unreasonableness' test, said:

It is accepted that an applicant seeking access to documents ... is not required to demonstrate any particular interest in the document nor disclose what might be done with the document if access is granted. In this way the FOI Act deliberately does not discriminate against one applicant over another. However, 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 [clause 6] exemption.[15]

3. In this case, it was not suggested that Mr Adamson has a special interest in the documents.
4. I have considered the Ombudsman's determination and observe that whereas the Ombudsman received submissions, but no evidence, regarding the effect of disclosure of the documents upon the applicants, the Tribunal now has the benefit of Dr James' report and affidavit evidence from the applicants. Contrary to the submission made on behalf of Mr Adamson, Dr James is specific in her opinion that there is a reasonable basis for concluding that the release of the information in the documents would have an adverse effect upon the applicants in that they may be intimidated or harassed by others in the Anangu community if the information were disclosed and then disseminated more broadly. To be clear, such a consequence does not flow from any suggestion that the applicants were not entitled to monies received that is disclosed by the requested documents, but that the dissemination of the information to members of the community would, by virtue of the cultural mores of the Anangu, create a likelihood of such consequences.
5. I am satisfied that the disclosure of the information in respect of the applicants would constitute an unreasonable disclosure of their personal affairs.
6. The determination is that the documents are exempt documents for the purpose of the FOI Act, and the Ombudsman's determination dated 25 November 2022 is set aside.

1. Time is extended for the application for review to be made.
2. The determination of the Ombudsman dated 25 November 2022 is set aside and substituted with a determination that the twenty documents that are the subject of the determination, are exempt documents pursuant to clause 6(1) of Schedule 1 of the Freedom of Information Act 1991.
3. The second respondent is to pay the applicants their costs in accordance with the SACAT Rules.

[1] Victoria Police v Marke (2008) 23 VR 223; [2008] VSCA 218 at [23] per Maxwell JA.

[3] [2011] SADC 139, per Judge Herriman.

[4] [1984] AATA 437; (1984) 6 ALN 257 at [132]- [133].

[5] [1993] QICmr 6; (1993) 1 QAR 227 (9 December 1993).

[6] [2020] SACAT 7.

[7] Report of Dr D James dated 11 August 2023, p 5.

[12] Affidavit of Mr Bernard Singer affirmed on 20 September 2023, p 4.

[13] Affidavit of Ms Julieanne Campbell affirmed on 10 October 2023, pp 3-4.

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