, Administration Law Administrative Decisions (Judicial Review) Act 1977 Applicant in receipt of Social Security pension - letter received by Department of Social Security containing vexatious allegations - information disregarded - pension entitlement not varied - applicant requested copy of letter - letter supplied - signature deleted and letter typed pursuant to 5.22 of the Freedom of Information Act 1982 - meaning of information - consideration of public interest. Administrative Appeals Tribunal Act 1975, 3.44; Freedom of Information Act 1982, s.3(1); 5.22; s,37(1) Cases Re Sinclair v. Secretary to the Department of Social Security (Q85/47 - 16th October 1985) Southern Centre of Theosophy Inc. v. South Australia (1979-80) 27 ALR 59 per Gibbs J. at 66 Department of Health and McKay v. Jephcott (Federal Court of Australia - unreported - 4 October 1985 (Foster J.) Luzaich v. United States (1977) 435 F. Supp. 31 at 35 ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by the Honourable Sir William Prentice (Senior Member), Mr I.A. Wilkins (Member) and Mr G.D. Grant (Member) BERYL L. McKENZIE v. SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY No. WA G15 of 1986 MUIRHEAD J. PERTH 8 MAY 1986 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G15 of 1986 ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by the Honourable Sir William Prentice (Senior Member), Mr I.A. Wilkins (Member) and Mr G.D. Grant (Member } BETWEEN : BERYL L. McKENZIE Applicant and SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY Respondent MINUTE OF ORDER JUDGE MAKING ORDER: MUIRHEAD J. DATE OF ORDER: 8 MAY 1986 WHERE MADE: Perth THE COURT ORDERS THAT: 1. Appeal be dismissed. 2. Applicant to pay respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G15 of 1986 ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by the Honourable Sir William Prentice (Senior Member), Mr I.A. Wilkins (Member) and Mr G.D. Grant (Member } BETWEEN : BERYL L. McKENZIE Applicant and SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY Respondent CORAM: MUIRHEAD J. 8 May 1986 REASONS FOR JUDGMENT This is an appeal from a decision of the Administrative Appeals Tribunal dated 24th January last. By reason of s.44 of the Administrative Appeals Tribunal Act 1975 it is an appeal on a matter of law. There is really no factual dispute. At relevant times the applicant was in receipt of a pension from the Department of Social Security having been deserted by her husband. On 9th April 1985 the Department received a handwritten letter dated 2nd April 1985. The letter bore no address. It was as follows: Mrs Mckenzie, 10 Watterton Place, Hamilton ill laves with her husband Mr McKenzie. Sometimes in her place. sometimes in his place. Mr McKenzie supports her financially. She might lie to you as she alwavs does. But this 1s the truth. I am just doing my duty to inform you. Thank you. Yours sincerely, (Signed)" In accordance with its usual practice the Department invited the applicant to call. She was informed of the allegations, which were denied. Upon request by the Department she provided a written statement. The Department determined there was no substance in the letter and her entitlement was not varied. A note was made on the departmental file that, to use the words of the Tribunal the "purported information was to be disregarded". By request dated 27th April 1985 the Applicant sought a copy of the letter pursuant to the Freedom of Information Act 1982. In May 1985 the department replied and sent her a typed copy of the letter with the signature of the author deleted, pursuant to the power contained in s.22 of the Freedom of Information Act. The officer writing the letter referring to the basis of his decision stated inter alia, after reference to the letter - "2. This information was given to the Department on the implied basis that the information would remain confidential. The letter went on te explain to the appiicant her right to a departmental review and 1f appropriate her right of appeal to the Tribunal. The applicant's father, on her behalf sought a review, and by letter dated 18th July the applicant was advised in effect that the earlier decision had been reviewed and affirmed, hence the appeal to the Administrative Appeals Tribunal. Upon the Tribunal hearing, evidence was given by officers of the department. The Tribunal succinctly but fairly summarised the evidence which referred to departmental practice as follows: "In evidence, the Regional Manager explained that upon the receipt of information from third parties, which might militate against the payment of a pension, an investigation is usually initiated. The Departmental Manual instructs however that a benefit is not to be aitered pending completion of such an investigation. A Field Officer 1s usually sent out to investigate. An average of six such pieces of information are it seems, received at the Fremantle office per week ~ in 1985 there were 150 in a period of 5 months. What is called a "Register of Dob-Ins" is kept. Some are thought to come from people who feel they are acting in the public interest, others from Q ons sno have utteriszr, motives. Tre Pribunai was i) ry (7) t ra) a that all information of the <x1ind 1s unsolicited; o 1t 1s not discouraged. but is treated confidentially and is cegarded as potentially an important source for assisting the administration of the Social Security Act 1947. More than half of the information so received is given anonymously". The Tribunal in affirming the decision referred to another recent Tribunal decision; in Re Sinclair v. Secretary to the Department of Social Security (985/47 - 16th October 1985). The learned Senior Members held: "Ll. The information contained in the letter clearly related to the administration of the law within the Meaning of s.37(1)(b). 2. In the circumstances it should be implied that the letter "was both written and received under the pledge of confidentiality". 3. There were reasonable grounds for concluding that disclosure of the letter in its original handwriting and signed form, could reasonably be expected to enable a person to ascertain the identity of its author". ws From the above essential reasons the decision was affirmed, I refer to those sections of the Freedom of Information Act 1982 emphasised by the applicant's counsel as requiring consideration and analysis. Counsel for the applicants placed some emphasis upon the objects of that Act referred to in s,.3(1), one of which is to extend "as far as possible" the right of the community to have access to information in the possession of government by creating a general right of access to information in documentary form in the possession of such government "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..." Part VI of the Act deals with the review of decision by the Tribunal and s.61 provides that in such proceedings the agency bears the onus of establishing that the decision in question was justified. In this case the partial exemption claimed was based on s.37(1)b. "(1) A document 1s an exempt document if its disclosure under this Act would, or could reasonably be expected to - (a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply witha law relating to taxation or prejudice the wo enftoccement of froper administration cf the law Li & PAYTLCuULSaY instance: tb) disclose, or enable a person ta ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law: or (c) endanger the jlife or physical safety of any person. (2) A document 1s an exempt document if its disclosure under this Act would, or could reasonably be expected to- (a) prejudice the fair trial of a person or the impartial adjudication of a particular case; (b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or (c) prejudice the Maintenance or enforcement of lawful methods for the protection of public safety. (3) In sub-sections (1) and (2), "law" means law of the Commonwealth or of a State or Territory." Other grounds of exemption exist but the Department has at no stage claimed exemption under s.40(1)(d) on the ground that disclosure could reasonably be expected to "have a substantial adverse effect on the proper and efficient conduct of the operations of an agency". The essential question is whether the Tribunal was correct in law in being satisfied that release of the handwriting and signature could reasonably be expected to enable the applicant to ascertain "the existence or identify of a confidential source of information in relation to the enforcement or administration of the law". The applitant's argument can be summarised this way. Such letters to the department are exempt only if they can be reasonably described as a confidential source of information. Here it said the letter did not supply 'information' as such. To the contrary it contained only factual allegations found to be false, coupled with a malicious attack on the applicant who was in effect labelled as an inveterate liar. It contained not 'information' but 'disinformation', which is defined in the Concise Oxford Dictionary, 7th edition as deliberately false information. That publication defines information inter alia as an "informing, telling, thing told, knowledge, items of knowledge, news...". But it seems to me that deliberately false information, albeit malicious, coming into the hands of a department, which does not at the time of receipt know whether it is true or false 1s nevertheless at that time fairly labelled "information". The word misinformation goes merely to the true quality of the information. So when the letter comes into the hands of the department it must I think be treated as 'information', a word of common albeit wide meaning constantly used in the statute but which, wisely enough, the draftsman did not attempt to define. But that is not the end of the applicant's argument. Counsel submitted that it is at the time a client seeks disclosure of the document that the matter must be examined, a time it must be assumed in this case, when the department is satisfied the information was inaccurate and false. At that time when the document has lost all credibility can its author be aptly regarded as a "confidential source of information in relation to the enforcement or administration of the law"? That must be examined fee) a nm AG unit' tne racaccrcund in this tase thas the department does not 1t ti elf know the source, but for reasons of overall policy does not wish to give the applicant an opportunity of ascertaining the identity of the person who has labelled her in a letter toa government agency as an habitual liar. Clearly it 15 the document itself, not a class of documents. which requires examination. Was then the Tribunal properly persuaded on the probabilities that this letter 1s by statute exempt from perusal by one who considers she has been thereby defamed. The 'object' section I have referred to talks of 'essential public interest' but the work such an objects clause has is limited. It 1s to s.37(1) that attention must be confined unless elucidation is required by reason of ambiguity. (Southern Centre of Theosophy Inc. v. South Australia (1979-80) 27 ALR 59 per Gibbs J. at 66.) Mr McPhee's written submission summarised those made during the hearing. He argues that the exemption applies only to sources of information which are established as having validity or accuracy. If the stage is reached when the department concludes that the information has no truth or validity in the sense that it does not influence a decision it ceases to have the protection of the Act as it can no longer be regarded as informative and the author can no longer be regarded as a confidential source of information, But I cannot accept such a narrow interpretation. Information prompting administrative inquiry, is still properly classified as information in the hands of the department, be it true or false. The department in the exercise of its responsibilities must and does regularly review the eligibility of recipients of public monies. Some information may prove of value, w some ot no value. Mr McPhee submits that information which has resulted in action against the recipient by way of prosecution or alteration in benefits payable 1s protected, but not otherwise. In Sinclair (above) the Presiding Member the Hon. J.B.K. Williams considered with some care the origins of s.37(1)(b). He expressed the view that it gave Statutory recognition to pre-existing common law principles enumerated in cases such as Reg. v. Lews Justices: Ex parte the Secretary of State for the Home Department (1973) AC 388 and Dv. National Society for the Prevention of Cruelty to Children (1978) AC 171. Those cases emphasise that the confidentiality traditionally given to informers may operate to the advantage of the untruthful or Malicious but nevertheless immunity may be necessary when balanced by the public advantage. Be that as it may it is not I think necessary to go beyond the Act itself in deciding this appeal. The essential questions which faced the tribunal were: (a) Was the letter in question a confidential source of information? (b) If so was it properly classified as relating to the enforcement or administration of the law. (c) Would its release in toto disclose the identity of the confidential source or in the alternative could it reasonably be expected to do so. fa ' As to (a) it was relevant that the letter bore no address. The author's concluding words "I am just doing my duty to inform you" may have significance in explaining the author's awareness of his ar her role as informer. The Tribunal did not err in my view by finding that it should be implied that "it was both written and received under the pledge of confidentiality". In Department of Health and McKay v. Jephcott (Federal Court of Australia - unreported - 4 October 1985). Forster J. observed "What then is a 'confidential source'?" I am content to accept the interpretation in Luzaich v. United States (1977) 435 F. Supp. 31 at 35 "a source is confidential if the information was provided under an express or implied pledge of confidentiality". As to (b) I can see no error in the Tribunal's approach. It stressed the duties and functions of the respondent under the Social Security Act, and the fact that it prompted investigation which called for no further action. There was adequate evidence to support the Tribunal's finding that "the letter clearly relates to the administration of the law within the meaning of s.37(1)(b)". As to (c) the Tribunal reached its conclusion after considering Department of Health and McKay v. Jephcott (above) a case 1n which the Administrative Appeals Tribunal had held that $.37(1)(b) did not exempt a document unless there was a substantial risk that the enforcement or administration of the law will be impaired 1f he (the confidential source) and others are th @everr2i foom giving sucn information by the ricx of Arseclas re © his or there identity". (The emphasis is mine.) Mr Justice Davies commented in dealing with the words 'substantial risk': "In my opinion, the paragraph imports no such element. The paragraph is umequivocal in terms and, in the context, has a sensible operation. It should be read according to its terms. No ground exists for implying a qualification. As Lord Mersey said in Thompson v Goold & Co. £1910] AC 409 at 420, "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it isa wrong thing to do." Against the factual background I consider no error has been demonstrated in the Tribunal's conclusion that the letter "in its original handwriting and signed form could reasonably be expected to enable the applicant to ascertain the identify of its author", For the above reasons the Appeal must be dismissed. I will hear counsel as to costs. I certify that this and the ten preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Muirhead. Aiuto Mh, fuser | Elizabeth Henderson Associate Dated: 8 May 1986