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[2005] FCA 73
Federal Court of Australia
2005-02-11
Mansfield J
Original judgment source is linked above.
introduction 1 This is an appeal, pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), from a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed the decision of the Freedom of Information Officer of the respondent and later of a review officer not to grant to the appellant access to certain documents under the Freedom of Information Act 1982 (Cth) (the FOI Act). Section 44 of the AAT Act provides that only questions of law can be raised on the appeal. The validity of the Tribunal's decision and the appellant's desire to gain access to the documents appear, however, to be only the tip of a much larger series of orders and findings being asked of the Court by the appellant in this case.
background events 2 The triggering event leading to the hearing of this appeal was the death of the appellant's estranged de facto partner Colleen Highford (the deceased) in July 1999. Together the appellant and the deceased had 10 children, nine of whom are still living. It is in part the question of guardianship of these children following the deceased's death that has led the appellant to this stage of legal proceedings. 3 The Tribunal recounted the appellant's background as follows: 'The applicant, who is nearly 52 years of age, is father of the deceased's nine living children, five of whom, he says are under the age of 18 years. The applicant says that in late 1997 he and the deceased (who was Aboriginal) and their children were evicted from their home in the Aboriginal community at Koonibba, via Ceduna, having allegedly "abandoned" Koonibba (the Mission). The history outlined by the applicant at the Hearing is difficult to follow, but I understand that when the family moved away from Koonibba, the deceased went to Western Australia, while the applicant remained with the children in Adelaide. When the deceased returned, she took five of the children to Whyalla, and the applicant had two of the children in Adelaide. He returned these children to the deceased in mid 1998. He said that at the time of the deceased's death on 30 July 1999, he was either in gaol, or under strict bail conditions in Adelaide. He says that he was subsequently cleared of these criminal charges. He was not notified of her death; the children were placed with their older siblings and members of the deceased's extended family at the Mission.' 4 In his written submissions, the appellant (who is unrepresented and has no legal training) asserted that there were a number of factual errors in the Tribunal's recitation of events. He asserts that it was late September 1996 when he and his family were 'expelled' without notice from their home in the Koonibba Community. It was as a consequence of this forced removal that the appellant asserts that he and the deceased were 'forced apart', but he claimed their geographical separation was not the end of their relationship. The other factual error sought to be corrected by the appellant was the time he was in prison or subject to strict bail conditions. He asserts that this was not at the time of the deceased's death, but at the time he, the deceased and their children were removed from their home. 5 These factual errors are inconsequential to the outcome of the appeal. It may be that the Tribunal did not completely comprehend the appellant's evidence, which would account for these discrepancies. The appellant does not contend these discrepancies led the Tribunal into any legal error but he instead wanted to clarify the factual situation. 6 Following the deceased's death, it appears that the children were placed in various homes. The appellant was not given guardianship or custody of them. He does not understand why. He asserted that there are no court orders in relation to who has custody of the children. He further asserted that he was not notified of what would happen to the children when their mother died. Further confusing the appellant is a letter from the South Australian Department of Human Services, Family and Youth Services dated 13 December 2001 stating that it was that department's understanding that the appellant is the 'sole legal guardian of the children'. Underlying this appeal is the appellant's desire to gain legal custody of the children and to be recognised as the legal guardian of the children. 7 On 18 August 2003, the appellant completed a form entitled 'I want access or change document(s)' at the Glenelg office of the respondent. In response to the question 'What documents are you requesting?' the appellant stated the following: 'Document about pension card 8/02 being issued, children upon it. 1. Documents upon the death of Colleen Anne Highfold 15/2/58 I believe deceased my next of kin her/me but I am not notified allowing my children to be illegally placed outside parental care, without Court Orders or permission. 2. Documents upon placement of Ward/Highfold children. 3. Documents upon the policy of placement or payment upon the death of a caring custody parent.' 8 On 10 September 2003, the appellant wrote a letter to the Manager of the respondent in the following terms: 'Please explain by which means and process my children mentioned on my pension card no [specified] 2003 do not appear on my same card and number of 2004. Please explain by which means and process also with the documents to do so under the Freedom of Information Act that my children became independent of me. My children maybe independent of any parent for I believe the mother my defacto wife has died but as we lived apart I was not notified even though I was the next of kin, as per medical records. Please explain the effect of children in regards to the Social Security Act when children are independent (of parental care without Court Orders or parental consent.)' 9 On 12 September 2003 a Freedom of Information Officer of the respondent refused the appellant's request of 18 August 2003 for access to documents. The respondent, in that communication, made no mention of the appellant's letter of 10 September 2003. Despite the expressed total refusal of the request, the appellant was provided with copies of 'the Centrelink legislation in respect to Death of a Family Tax Benefit (FTB) recipient' (the copy legislation), and a copy of a document dated 31 June 2002 relating to a temporary pension concession card issued to the appellant (the printout). 10 The appellant on 25 September 2004 then completed a form requesting a review of the respondent's decision. In answering why he thought the initial decision was wrong, the appellant stated: 'I believe disclosure of the documents would not be unreasonable. As I am the father of the children and next of kin to Colleen, I request as of right. As I know the identity it is unreasonable even absurd to expemt [sic] documents on those grounds.' Included with the appellant's request for review was a letter from the appellant asserting that he is the only person entitled to act as executor and administrator of the deceased's estate and requesting information about who administered the deceased's estate. Accompanying both the request and the letter was an undated note stating: 'I Colleen Highford authorise Martin Ward to ask questions on my behalf to advocate for me.' The note was signed 'Colleen. A. Highfold'. Annotated on this document were the words 'orig NOT sighted vsy'. 11 By letter, apparently dated 10 October 2004, the review officer declined to release the documents sought 'in their entirety' on the ground that they are exempt under s 41(1) of the FOI Act. He was nevertheless also provided with two publications of the respondent: 'Are you a Parent or Guardian?' and 'Are you needing help after someone dies?' (the pamphlets).
The Tribunal's Decision 12 The appellant applied for review of this decision by the Tribunal on 29 October 2003. In the 'reasons for application section' the appellant wrote: 'I wish to administer my wife's (defacto) small estate. I wish to find my children and re-establish [sic] with them. I need to know how children can be put with other [sic] by paying them money, without notice to me.' These 'reasons' reveal that the appellant's ultimate goal is to reunite his family and gain custody of his children. In order to do this he is seeking documents under the FOI Act relating to the deceased and to child support payments to the present guardians of his children. It appears that the appellant wishes to find out information about how the children came under the care and custody of their current guardians and why the respondent approved social security payments to the children's guardians, so that the appellant can challenge the respondent's decision to make payments to those people. It then appears that the appellant wishes to re-establish regular contact with his children and ultimately gain legal custody over them and become the recipient of any family allowance payments to be paid. 13 There is a dispute between the parties as to the documents the subject of the Tribunal's consideration. 14 Each of the primary decision maker and the review officer appear to have regarded the request as relating to a number of documents, although they did not identify them. 15 The respondent provided to the Tribunal a statement of facts and contentions dated 29 March 2004. It maintained that access to the documents sought be affirmed, by reason of s 41(1) of the FOI Act. However, it was accompanied by a 'Schedule of Exempt Documents' in which only one document was identified: a computer file note of 19 October 1999, said to be exempt under s 41(1) because it 'contains personal information of third parties'. Ultimately the Tribunal addressed only that document, although in parts of its reasons it appears to assume there is more than one document covered by the request, as it refers to information provided to the respondent by the carers of the appellant's children over a five year period. The Tribunal, I am informed by counsel for the respondent, did not seek to inspect either the file note of 19 October 1999, or any other records which it appears to have assumed may exist. 16 The appellant does not accept that he agreed at the Tribunal that his application concerned only the one document, and the way the Tribunal has interpreted his request: '… I understand that he is not now seeking the identity of the carers of his children, details of which are well known to him. He is seeking, in effect, documents containing the information upon which the Department approved payment to these persons, of Family Allowance and Family Tax Benefits, in respect of the children, so that he can challenge that decision, and become the person to whom such Family Allowance and Family Tax Benefit is paid.' The Tribunal found that carers of the appellant's children have made claims for such benefits and have received them since mid 1999. It concluded: 'They have provided confidential information to [Centrelink] on a regular basis. I am satisfied that these persons would have expected that their identity and the information provided would be kept confidential. The applicant claims that he knows now, the identity of some, if not all, of these persons. But such identification, on the applicant's own evidence, has led to physical confrontation, and denial of the applicant's requests to hand over the children. Release of the information to the applicant would lead, in my view, to positive, not speculative identification of each of the children's carers, and to the nature of payments and the basis upon which those payments are made. As stated earlier in this paragraph, I am satisfied that these persons would have expected that this information would remain confidential; and that in these circumstances disclosure would involve the unreasonable disclosure of personal information about these persons.' From that conclusion, it refused access to the computer file note dated 19 October 1999. It did not discuss the existence or nature of any other documents. Nor is there any discussion in its reasons about why, given the observations quoted above, there should be only one such document. 17 For the reasons which appear below, I do not need to determine whether the appellant did accept before the Tribunal that his application concerned only one document.
the appeal 18 The notice of appeal of 10 August 2004 contains grounds of appeal and questions of law expressed only in general terms. The orders sought by the appellant are: 'Disclose documents Explain policy, law and precedent. Restore us back to how we, I, were or should be.' Accompanying the notice of appeal were affidavits from four of the appellant's children stating that they each give their consent to the appellant being able to view documents regarding their social security payments. The applicant has sought to rely on these affidavits. According to Spender J in Servos v Repatriation Commission 1995 (129) ALR 509 the jurisdiction of this Court pursuant to s 44 of the AAT Act does not permit the reception of further evidence which was not before the Tribunal; see in particular at 517 - 518. I do not accept those affidavits as evidence on this appeal. They could not assist in its resolution, as the Court is not charged with reviewing the Tribunal's decision on the merits.
THE APPELLANT'S SUBMISSIONS 19 The appellant made only written submissions (both primary and in reply) contained in extremely lengthy and detailed handwritten documents. These submissions raised numerous issues, some not relevant to this appeal. 20 The main concerns and aims of the appellant in this action appear to be: · Seeking to have himself appointed as the administrator of the deceased's estate; · Seeking an understanding as to why he did not become the guardian of the children after the deceased's death; · Locating or confirming who has care and custody of his children (although it appears that he knows this); and · the amount and type of social security the carers of his children have received and why the respondent approved payment of these benefits to the recipients. 21 The appellant's very extensive submissions were not fully focused only on demonstrating error of law on the part of the Tribunal. Those contentions included that he should be appointed administrator of the deceased's estate. He produced a letter from the Department of Human Services dated 16 February 2000 indicating that 'Family and Youth Services is responsible for administering such estates'. The Tribunal correctly pointed out that it did not have the jurisdiction to grant the appellant's request that he be appointed executor of the deceased's estate and that it was not the role of the respondent to do so. Nevertheless, it is unclear whether the respondent has any document concerning the identification of the administrator of the deceased's estate, or the value of that estate. 22 The appellant spent a considerable amount of time explaining how he could not understand how his children were 'removed' from him and detailing his efforts to locate his children. He submitted in considerable detail the extent of his desire to be re-united with his children, to look after, to educate, and to be a father and role model for them. It is clear that he is upset that his children were 'removed' from him without him understanding why, and that he wishes to gain custody of them. Those matters too were not within the role of the respondent or of the Tribunal. As noted above, however, the respondent may well have (and one would assume does have) documents recording material upon which it was satisfied that the carers of the appellant's children were entitled to receive the benefits they have received. · The only issue squarely before me, that is, the only issue with which I can deal on this appeal, is whether the Tribunal erred in law in upholding the decision to refuse the appellant access to the documents (or document) he seeks.
THE LEGISLATION 23 Section 11 of the FOI Act provides a right of access to documents. Section 11(1)(a) sets out: '11(1) 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;' There is no dispute that any records containing the information sought falls within the definition of 'document' contained in s 4(1) of the FOI Act. 24 The right of access to documents provided by part III of the FOI Act is subject to the provisions in part IV, which exempt certain documents from the operation of s 11(1). Relevantly, s 41(1) has been relied upon to prevent the appellant gaining access to any of the documents. Section 41(1) provides: 'A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).' 25 'Personal information' is defined in s 4 to mean: '… information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.' 26 Section 22(1) relevantly provides that, where an agency decides not to grant a request for access to a document on the ground that it is an exempt document, and that it is possible for the agency to make a copy of the document with such deletions that the copy would not be an exempt document, and it is reasonably practicable to do so, then the agency shall (unless it is clear that the applicant for the document would not wish to have access to such a copy) make and grant access to such a copy. Section 41 is in Pt IV of the FOI Act and a decision under s 41 not to disclose a particular document is a decision concerning an 'exempt document' as defined in s.4.
consideration 27 The Full Court of this Court dealt with the interpretation of s 41(1) of the FOI Act in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 (Colakovski). I note that that decision predates the amendments to ss 4 and 41 of the FOI Act in the Freedom of Information Amendment Act 1991 (Cth). In summation, Lockhart J (with whom Jenkinson and Heerey JJ agreed) stated at 438: 'This is not an appropriate case in which to examine definitively the circumstances that may constitute "the unreasonable disclosure of information" relating to a person's "personal affairs" because the argument before us proceeded on the limited basis outlined previously. It is sufficient for present purposes to say that "every person" has a "legally enforceable right to obtain access" to documents under the FOI Act: s 11. There is no requirement that the person seeking access have a proprietary or any other interest in documents or the information contained in them. The object of the Act, as expressed by s 3, is to give the "Australian community" the right of access to information in the possession of the Australian Government. What is "unreasonable" disclosure of information for purposes of s 41(1) must have as its core public interest considerations. The exemptions necessary for the protection of "personal affairs" (s 41) and "business or professional affairs" s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided the other conditions mentioned in sections 41 and 43 are satisfied. An examination of the other provisions of Part IV of the Act concerning exempt documents confirms this approach.' 28 Heerey J, at 441, added the following comments with respect the issue of 'unreasonableness': 'Turning to the criterion of unreasonableness prescribed by the s 41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would inure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.' 29 In Kristoffersen v Department of Employment Workplace Relations and Small Business [2002] FCA 55 (Kristoffersen), Kiefel J, after discussing the Full Court's decision in Colakovski stated at [28]: 'Section 41(1) cannot in my view simply be waived by the person to whom the information or opinion relates, in particular because it extends to opinions expressed about that person. Whether disclosure is to take place depends then upon whether it is regarded as unreasonable. In that connexion the Tribunal applied the reasoning of Heerey J in Colakovski (at 440-441), holding that the documents containing the opinions were supplied on the basis that they remain confidential and their disclosure would cause embarrassment or distress to them. It may be that the Tribunal has understated the potential effects upon the authors if disclosure were to occur, but no legal error is disclosed in its reasoning on this point.' 30 Whether considering only the document of 19 October 1999, or a range of documents, there appears to be little doubt that the information sought in this matter is 'personal information'. The appellant seeks details about the placement or carers of the children, and of social security payments including the people to whom they are paid and the basis for those payments. The real issue is whether the disclosure of this information would be 'unreasonable'. In order to determine this, according to the authorities cited above a balancing of differing or competing public interests must be undertaken. 31 In undertaking its task of review, the Tribunal effectively stands in the shoes of the respondent: s 58(1). It is, for that purpose, empowered to require the document or documents in issue to be produced for its inspection: s 64. It did not exercise that power in this instance in respect of the computer file note of 19 October 1999. 32 One of the steps relied upon by the Tribunal was the inferred expectation of confidence that carers of the children would have when providing information to the respondent as to their identity, and to the nature of the payments, and the basis of the payments. Assuming that that is what the computer file note of 19 October 1999 contains, it is understandable that information about the identity of the recipients or their whereabouts may be confidential, or should be inaccessible to a third party, even in a case where the information is 'compulsorily' acquired by the respondent. The Social Security (Administration) Act 1999 (Cth) imposes criminal penalties for the unauthorised use of protected information by the respondent (and others). In Jorgensen v Australian Securities and Investment Commission [2004] FCA 143 Weinberg J held that private telephone numbers and home addresses were exempt in that situation under s 41(1). More accurately, I am not satisfied that the Tribunal, in taking into consideration this factor in refusing to grant the appellant access to the document, committed any error of law. 33 However, I think the material before the Tribunal required it separately to consider whether the (assumed) contents of the computer file note of 19 October 1999 would involve the unreasonable disclosure of personal information. The other (assumed) contents of the computer file note of 19 October 1999 were the nature of the payments made to the carers of the appellant's children, and the basis upon which those payments were made. The Tribunal's reasons disclose that exposure of that material was, by reason of the expectation of confidence and in the circumstances, such as to involve unreasonable disclosure of that information. In my judgment the Tribunal erred in law by failing to separately consider that information which, as I have noted, it appears to have assumed to be part of the contents of the computer file note. It is not immediately obvious that the disclosure of that information, that is what type of payments have been made to the carers or the amount, and the factual basis or qualification upon which the payments have been made to a particular person or persons, unreasonably discloses personal information. It was not addressed by the Tribunal, and is not obvious, that the disclosure of that information would or might lead to the confirmed identity of the recipients of the benefits. It is not addressed whether, by reason of s 22, certain of the information on the computer file note might be released in the form of an edited copy. The satisfaction that payments by the respondent of benefits are properly made in accordance with the legislation to persons entitled to receive them is a matter of general community interest. If that material could be released without disclosing the names or addresses of the recipients of the benefits, s 22 indicates (unless other factors make its disclosure unreasonable) that it should be released. In my judgment, the Tribunal has failed to comply with the FOI Act by not addressing those issues.
34 For those reasons, I consider the appeal should be allowed and the matter remitted to the Tribunal for reconsideration. At that time, the scope of the request for information (and as explained by the appellant's letter of 10 September 2003) may need to be re-addressed. If, as appears, at one point his pension card had his children as dependants and later they were removed, there must be (or have been) some record of information received or some other material which led to the change. In addition, as the submissions disclosed, there may be a number of other documents held by the respondent which record the nature and extent of the payments, and perhaps more importantly from the appellant's viewpoint, the factual foundation upon which those persons receiving the benefits were and remain eligible to receive them. The appellant has been given copies of the relevant legislation and the pamphlets presumably explaining the legislation. That material would identify the status required to be eligible for benefits, but it would not record how the carers met the criteria or the relevant criteria for eligibility. 35 Those are matters for the Tribunal. 36 There is one further contention of the appellant to which I should refer. He sought to rely on s 41(2) of the FOI Act. 37 The appellant also submitted that the information sought directly relates to him. This submission, as I understand it, was based on the premise that if he regains custody of his children, his social security payments would increase. Section 41(2) provides that s 41(1) does not have effect where the request for access relates only to material concerning the person making the request. The document or documents are not however only relating to the appellant. As understood by the Tribunal, the computer file note of 19 October 1999 also relates to the deceased, the children and their carers. The appellant gaining access to the information held by the respondent would not automatically make him the children's legal carer or the recipient of their benefits. No error has been made out on this point.
38 For those reasons the appeal is allowed. The decision of the Tribunal of 20 July 2004 is set aside. The application of the appellant to the Tribunal of 29 October 2003 is remitted to the Tribunal for reconsideration according to law. The parties are agreed that no issue as to costs arises on the appeal. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Associate: Dated: 10 February 2005 Counsel for the Appellant: The Appellant appeared in person
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 25 October 2004, 4 February 2005
Ward
Centrelink