FEDERAL COURT OF AUSTRALIA Kristoffersen v Department of Employment Workplace Relations and Small Business [2002] FCA 55 ADMINISTRATIVE LAW - freedom of information - whether disclosure of certain documents "unreasonable" - whether documents contained "personal information" ADMINISTRATIVE LAW- procedural fairness - whether proceedings in Administrative Appeals Tribunal involved procedural unfairness - whether Tribunal proceedings involved error of law - whether error of law in Tribunal's decision WORDS & PHRASES - "personal information" Statutes Administrative Appeals Tribunal Act 1975 (Cth) s 35 Freedom of Information Act 1982 (Cth) ss 4,5,41(1), 41(2), 42D, 45(1) Cases Colakovski v Australia Telecommunications Corporation (1991) 29 FCR 429 Applied Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 Referred to Re Pfizer Pty Ltd v Department of Health Housing and Community Services (1993) 30 ALD 647 Referred to KURT MICHAEL KRISTOFFERSEN v DEPARTMENT OF EMPLOYMENT WORKPLACE RELATIONS AND SMALL BUSINESS Q141 of 2001 KIEFEL J BRISBANE 8 FEBRUARY 2002 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 141 OF 2001 ON APPEAL FROM A DECISION BY THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: KURT MICHAEL KRISTOFFERSEN APPLICANT AND: DEPARTMENT OF EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS RESPONDENT JUDGE: KIEFEL J DATE OF ORDER: 8 FEBRUARY 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The applicant's notice of motion filed on 8 October 2001 is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 141 OF 2001 ON APPEAL FROM A DECISION BY THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: KURT MICHAEL KRISTOFFERSEN APPLICANT AND: DEPARTMENT OF EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS RESPONDENT JUDGE: KIEFEL J DATE: 8 FEBRUARY 2002 PLACE: BRISBANE REASONS FOR JUDGMENT 1 On about 28 July 1999 the applicant wrote to the State Manager, Department of Employment, Workplace Relations and Small Business, requesting the disclosure of documents under the Freedom of Information Act 1982 (Cth) ("the FOI Act") described as "… copies of all information on your records in regards to me and my NEIS application dated 16/8/98". The reference to "NEIS" is to the New Enterprise Incentive Scheme, which was a service to assist unemployed persons to establish small businesses. In following correspondence he sought to personally view the documents. 2 On 23 December 1999 an officer of the Department replied. The Department declined to give the applicant the opportunity to personally inspect the material and determined that he be provided with photocopies of the material to be released. So far as concerned material on the Department's file and some entries on the Department's complaints database, which were relevant to the applicant's request, some was provided in full, some in part and some was considered to be exempt under various provisions of the FOI Act. On an internal review those claims to exemption were upheld. The decision on that review was dated 23 August 2000. By that time certain records held by BAVE Pty Ltd ("BAVE"), the private sector body which dealt with the applicant's application, were located in the Department. Much of it was made available to the applicant, but some was determined to be exempt. Any documents held by BAVE which were not employment service records were not considered to be available to the Department. I take this to respond to the applicant's demands that all of BAVE's documents containing a reference to him be obtained and made available to him under his request. 3 When the matter came before the Administrative Appeals Tribunal, it identified the documents for its consideration as follows: "(a) File No RQ99/00627 Number Date Description Exemption/s Claimed (i) created folio 34 - statement made by a third party s 41(1); s 45(1) 16/4/99 (ii) created folio 35 - statement made by a third party s 41(1); s 45(1) 14/4/99 (iii) created 14/4/99 folio 38 - statement made by a third party s 41(1); s 45(1) (iv) undated folio 39 - statement made by a third party s 41(1); s 45(1) (v) undated folio 40 - details of activities undertaken by CBC NEIC Training Centre - Maroochydore Partial release - exemptions s 41(1); s 45(1) (b) Manila folder - BAVE file - K. Kristoffersen - NEIS Number Date Description Exemption/s Claimed (i) created folio 15 - third party information s 41(1) 26/8/99 (ii) created folio 30 - statement made by a third party s 41(1); s 45(1) 16/4/99 (iii) created folio 32 - statement made by a third party s 41(1); s 45(1) 14/4/99 (iv) created folio 35 - statement made by a third party s 41(1); s 45(1) 14/4/99 (v) undated folio 36 - statement made by a third party s 41(1); s 45(1) (vi) undated folio 37 - details of activities undertaken by CBC NEIC Training Centre - Maroochydore Partial release - exemptions s 41(1); s 5(1) (vii) 4/6/99 folio 43 - File note re K Kristoffersen s 41(1); s 45(1) (viii) 4/6/99 folio 67 - statement made by a third party s 41(1); s 45(1) (ix) undated folio 72 - details of activities undertaken by CBC NEIC Training Centre - Maroochydore Partial release _ exemptions s 41(1); s 45(1) (x) 18/8/98 folio 77 - document by R Richards Partial release - exemptions s 41(1); s 45(1)" 4 The evidence before the Tribunal showed that the applicant had applied for a grant under the NEIS Scheme in August 1998 and was unsuccessful. As previously mentioned, BAVE handled the application. That company had since gone into liquidation. There was affidavit material before the Tribunal concerning the extent of the search which had been conducted for files which might contain information relating to the applicant. 5 The bases upon which the respondent relied to maintain each of the exemptions were provided by ss 41(1) and 45(1) of the FOI Act: "41(1)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). … 45(1) A document is an exempt document if its disclosure under this Act would found an action, by a person other than the Commonwealth, for breach of confidence." 6 Section 4 defines "personal information" as: "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;" 7 The Tribunal viewed the documents and considered that some of the documents contained information or opinions about the applicant and information about the authors. Disclosure would not only reveal the identity of the authors, but also identify others, as well as reveal the personal reasons for the creation of the documents. As such it was "personal information" within the meaning of s 41(1) of the Act. Disclosure was "unreasonable", in the Tribunal's view, because the documents were made available on the understanding that they would remain confidential and be used only with or by BAVE or the respondent and they might cause embarrassment or distress to the persons referred to in them. There was a public interest in maintaining the personal privacy of persons and that consideration outweighed the public interest in their disclosure. The documents identified as exempt under this provision were folios 34 (30) (the latter number in parenthesis being a reference to another copy of the same document in the BAVE file); 35(32); 38(35); 39(36); 40(37/72) and (67). 8 So far as concerned s 45(1), the Tribunal referred to each of the criteria listed by Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434, namely: (a) Could the applicant identify with specificity the information in question? (b) Does the information have the necessary quality of confidentiality? (c) Was the information received by the respondent in such circumstances as to import an obligation of confidence? (d) Is there actual or threatened misuse of the information? (e) Would there be a detriment to the people concerned if the documents were disclosed? and answered each of them in the affirmative. 9 In particular, with respect to the criterion in (c), the Tribunal found that each author provided information after receiving confirmation that it would be treated as confidential by BAVE or DEWRSB. The authors indicated in the documents that the information would not otherwise be supplied. Although BAVE no longer existed, the obligation of confidence remained. 10 The initial grounds for appeal prepared by the applicant were amended after discussion at a directions hearing. The resultant document, compiled by the respondent by reference to the transcript of that hearing, is entitled "Amended Grounds of Appeal". The parties' submissions address that document. 11 A number of the applicant's grounds relate to procedural fairness: Ground 1; Ground 2; Ground 4; Ground 6; Ground 13. 12 "GROUND 1 There was a failure to demonstrate procedural fairness towards the Applicant by the AAT refusing to accept written submissions from the Applicant and not advising the Applicant of his right to seek an adjournment to allow him to call further evidence." "GROUND 6 There was an error in law (failure to give procedural fairness) in the failure by the AAT to suggest that the Applicant might seek an adjournment to permit the Applicant to adduce additional evidence to prove his ownership of what the Respondent was calling personal information." The transcript of the hearing before the Tribunal shows that the applicant indicated, at the outset, that he wanted to rely on a document. It was not further identified and the discussions proceeded to other matters. There was no refusal however to accept it. The applicant now identifies it as the letter dated 12 February 2001, the date of the hearing. A copy of that letter appears to have been received by the Tribunal before its decision was given. Much of what is contained in the letter merely repeats the applicant's claim for material in addition to that shown as being in existence. Insofar as the other arguments contained in the letter had not been raised, or fully developed, during the hearing, they are included in the Tribunal's summary of the applicant's argument. They have been considered. 13 The applicant also attempted to hand up two letters dated 18 November 1999 and 14 December 1999. The Tribunal did not consider them to be of assistance. They amount to little more than a request to view the documents, a matter of which the Tribunal was already aware. 14 The applicant also complains that it was unfair to him that the Tribunal accepted the affidavit evidence tendered by the respondent which became Exhibits 1 to 6. They were principally concerned with the searches which had been made for documents. There does not appear to me to be a basis for any conclusion that it involved any unfairness to him. The affidavits contained relevant matter and the applicant has not identified any particular aspect of their contents which might have adversely impacted upon him in the way complained of. He was served with copies of the affidavits prior to the hearing and asked whether he wanted to cross-examine any of the witnesses, and he did so. 15 The applicant contends that it was also incumbent upon the Tribunal to advise him that he could call for an adjournment when he realised he had called the wrong witness. As mentioned earlier, the applicant cross-examined two of the respondent's witnesses. He did not call any witness himself. One of the respondent's witnesses required for cross-examination was the primary decision-maker. The transcript shows that the applicant had not appreciated that another person had reviewed that decision, although he had been sent a letter showing that to be the case. The applicant wished to question the person who undertook the review. It is not apparent what he needed to ask of him and what relevant evidence that person could have given. The applicant appears to have assumed that it was necessary that he put matters to that person as representing the Department. In any event the applicant did not suggest to the Tribunal that any critical aspect of his case depended upon the evidence of this person nor did he make plain that he wanted the opportunity to call him. From this point the discussion moved on. In these circumstances, in my view, no obligation arose on the part of the Tribunal. 16 "GROUND 2 Failure to identify 'adequately and unambiguously' to the applicant what decisions were under review and failure to examine the 'deemed refusal' argument and being in error about which decisions were under review. The decisions under review were: (a) the decision to limit the scope of the request; and (b) the deemed refusal decision." The Tribunal member went to considerable lengths to ensure that he understood the applicant's case. Indeed his summary of the applicant's submissions does more than justice to them. The Tribunal identified the documents at issue and the basis for the claimed exemptions. These were the matters necessary for it to consider. There was no "deemed refusal" argument put before the Tribunal and in any event it would not have resulted in the applicant automatically becoming entitled to the documents, as he seems to contend. There was a decision under review. 17 "GROUND 4 Failure to hear a review of the type of access requested, namely access by viewing the documents. Mr Beddoe misdirected himself in not only ignoring this point of law but in ignoring the Applicant's request for this to be reviewed." The method of access provided to the applicant accorded with his original request for copies. It would appear that he raised the prospect of viewing the documents in subsequent correspondence and before the decision was made. At the Tribunal hearing the applicant raised the question of his viewing the documents and the transcript shows the Tribunal's difficulty in understanding the basis for the complaint. Compelling reasons were given by the Department for not providing the type of access that the applicant sought and these appear to have been accepted by the Tribunal during argument, even if this aspect of its decision was not recorded in the reasons. There is no basis shown for requiring a reconsideration of the matter. 18 "GROUND 13 Allan Rose AO President Australian Law Reform Commission states 'the principle of a equality as being - an Australia's view of equality', which is summed up in the phrase 'a fair go for all'. It becomes painstakingly clear that Mr Kirstoffersen has never had 'a fair go at all' and the matter of natural justice enters here and perpetrates to:- (a) The right to a fair hearing. Natural justice general requires that the person should be given notice of the allegations against him, so he can prepare his case to answer the case against him. In exempting statements of accusation about Mr Kristoffersen the Applicant has been denied his right to a fair hearing. (b) The rule against bias. An adjudicator must not show bias or a real likelihood of bias. Mr Beddoe showed bias in not accepting the Applicant's statements, defining what was under review before him, but accepting the statements from DEWRSB. He neglected to conduct a thorough enquiry into the exemptions chosen and this biased his decision." The applicant makes a general complaint about being denied natural justice and one of bias. I have read the transcript of the hearing. Neither complaint is justified. 19 The applicant also complains that the Tribunal did not consider the disclosure of documents other than those reviewed: "GROUND 5 Failure to hear a review of the scope of Mr Kristoffersen's FOI request, which included associated documents, which documents were not identified by the Respondent. If the correct test was applied the documents would be released." 20 So far as concerns documents listed in the internal review as irrelevant to, or outside the applicant's request, these matters were the subject of discussion before the Tribunal. The applicant also asserted that some "associated documents", including copies of the service agreement between the respondent and BAVE and copies of documents of payments made to him by that company or by Centrelink, should have been produced. The contract had apparently been available publicly on the internet at an earlier point and a view was taken that there was no obligation to produce it when the applicant demanded it. In any event, the respondent undertook at the hearing to provide the applicant with a copy. If, as he contends, this has not been attended to, it should be. Any failure to do so does not however form part of this appeal. 21 The applicant also contended that documents evidencing payments to BAVE for its services on his application should have been made available to him under the description of "associated documents". The matter does not appear to have been raised before the Tribunal and in any event it seems doubtful that it falls within the terms of his request. The same comments apply to the documents referred to in the applicant's submissions in which "decisions are made in regards to educational and training courses". So far as any other "associated documents" are concerned, the evidence given by the respondent's witnesses was that searches had been conducted and no additional documents relating to the applicant could be located. The applicant cross-examined those deponents. No basis was shown for a conclusion that other documents were in existence and the Tribunal was not obliged to take the matter further. In the way in which it approached the matter I take it to have accepted the evidence and the respondent's submissions on the point. 22 The topic of the documents treated by the Tribunal as confidential, referred to above, is raised in another ground by the applicant: "GROUND 17(21) Mr Beddoe made a decision to redefine the documents held under a section 35 order. He erred not only in law in doing this, but also in judgement. It was not in his jurisdiction, nor did he have a right to omit any documents mentioned by name and annexed at (SOi), (SoIIA), (SoIIB), (SoIII)." I am unable to discern any error of law or indeed to comprehend these submissions made in connexion with this ground. There was, as mentioned above, a basis in law for the reception of the confidential documents: s 35 Administrative Appeals Tribunal Act 1975 (Cth). 23 The substantial issues before the Tribunal related to ss 41 and 45 FOI Act and whether the documents listed came within exemptions from disclosure in those sections. The applicant's grounds in this regard are stated to be: "GROUND 7 Mr Beddoe erred in law in his approach to and definitions of personal information, public document, unreasonable disclosure, eligible case manager, case manager, government agency, justice, deemed refusal and scope of the relevance to this case. The Respondent cannot have personal information. This led him to misguide his judgment and if he had considered the true definitions as related to this case he would have released the information the Applicant requested. GROUND 9 The misinterpretation of section 45 in regard to this case has led to an error or law, as whilst it can be argued that a breach of confidence may be found, there is no onus on the courts to deploy an action based purely on the release of the said documents, all that such an action would be based on the release of the exempt documents or occur purely because of their release, as no evidence of intent has been shown. Furthermore, if the Applicant or any of the authors of the said documents wish to file an action for breach of confidence it would be founded on documents already released. GROUND 11 In failing to consider whether the documents being exempted are in fact the Applicant's personal documents or the department's personal information Mr Beddoe misdirected himself resulting in an error of law. Consideration as to why the documents had come into existence, why the same documents were generated so many times and forwarded to so many people and whether or not in law a government department can assume the identity of a person, would have been the true test in this decision. GROUND 16(20) Mr Beddoe failed to investigate the relevance of public interest in this case and erred in law by neglecting to address this issue correctly. The accountability of the BAVE, DEWRSB, Employment National organisation, and Centrelink staff is of paramount public interest. Public interest also lies in the public's right to be aware of any misuse of public monies, misuse of public trust and the laws relating to government employees being accountable." 24 The applicant submitted that "personal information" as defined, relates only to an individual and not to an employee of a government department or agency. BAVE and other bodies connected with his application were agencies, or BAVE was an "eligible case manager" and therefore not an individual to whom s 41(1) applied. The Tribunal held that it did not have sufficient information to determine the lastmentioned point, but that it did not affect the outcome. 25 The definition of "personal information" would not extend to information about a department or agency. It refers to information about an individual who can be identified. Where that can be done, it would not seem to me to matter what position the person held. The protection extended by the Act concerns information about that person. Whether their position has an impact on the other requirement of s 41, that the disclosure would be unreasonable, is another matter. 26 The Tribunal identified in the documents information or opinion about the applicant and information about the authors. From what follows it would seem that the lastmentioned reference is to the identification of the authors. 27 The Tribunal referred to two cases in this regard: Re Pfizer Pty Ltd v Department of Health Housing and Community Services (1993) 30 ALD 647 and Colakovski v Australia Telecommunications Corporation (1991) 29 FCR 429. In the lastmentioned case the Full Court held that it is sufficient if information relates to a person's personal affairs and that information which revealed the identity, address and reason for the call came within that definition (at 437). It is not plain however that it considered that information disclosing the identity of a person alone would be sufficient. The Court was there concerned with the earlier s 41. The definition in the current legislation makes clear that it is concerned with information which does identify a person, but the question arises whether more is then required; namely that something be said about them. If the various employees did not come within s 4, there were still documents containing information or opinions about the applicant. 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. 29 The applicant submits that the Tribunal failed to take account of the public interest in disclosure of documents. The submission is incorrect. It did so. 30 The applicant's view of the authors of the documents as employees of departments or agencies, is again raised with respect to s 45. The applicant equates those persons with the Commonwealth. Section 45(1) expressly excludes actions for breach of confidence brought by the Commonwealth. 31 I have referred to the findings of the Tribunal as to the confidential nature of the documents arising, in particular from the circumstances in which they were provided. It is possible that orders in the nature of injunctions might be obtained by persons based upon rights personal to them, regardless of the position they held. 32 Another ground relied upon by the applicant appears, upon first reading, to be one akin to an allegation of bad faith: "GROUND 10 The Applicant believes that the cover-up, which would be revealed by the release of the service agreement as at July 1998, and the documentation of payments made on behalf of the alleged services provided to the Applicant is the reasoning behind hiding these documents from the public." In reality the applicant makes a general and wide allegation of illegal activities. It is unsupported. It does not advance his case. 33 It remains to consider the balance of the grounds relied upon by the applicant which do not appear to fall within the abovementioned categories. 34 "GROUND 3 Mr Beddoe erred in law in deciding to change the Respondent's application for exemption from s 41,1(a) to section 41, 2 at page 2. This is because under section 42D, (1) and 42D(3), (a), (b), (i), (ii), an application for review of the decision had been submitted by DEWRSB." It does not appear that the Tribunal member did change the respondent's application for exemption from s 41(1) to s 41(2) FOI Act. A reference to s 41(2) appears only in connexion with a submission made by the applicant. The applicant's reliance on s 42D of the AAT Act, which provides that the Tribunal may remit a matter, does not provide any support for this ground nor any other ground. It seems to refer only to what the applicant says that outcome should have been. 35 "GROUND 8 There was an error of law in the Tribunal accepting the Respondent's statements, made without evidence and not requiring the Respondent to clearly identify what evidence was being relied upon in the statements presented." This ground, the applicant's submissions show, refers to what is alleged to be hearsay evidence and takes issue with aspects of Mr Sara's affidavit. 36 There are a number of difficulties for the applicant with respect to these topics. They were not raised before the Tribunal nor were they made the subject of cross-examination. The Tribunal was not obliged to require further evidence or to question their validity and in any event is not bound by the rules of evidence. Insofar as any such evidence is reflected in the Tribunal's findings of fact, they do not involve a relevant error of law. 37 "GROUND 12 And 'P Cockcroft and Attorney-General's Department' 'Thus I start with the presumption that the Applicant should receive the information which he seeks unless some compelling reason to the contrary, as embodied in an exception or exemption recognised by the Act is established on the evidence brought forward by the Respondents'. The Respondent brought no evidence to prove any such exception was present and the AAT made no effort to procure proof of any such evidence." The statutory right to disclosure is subject to the exemptions contained within the Act. The balance of the submissions related to aspects of the evidence which have already been addressed. 38 "GROUND 14 Mr Beddoe erred in fact in his reasons 1-42 so many times that he could only misdirect himself to err in law also. Any reasonable member would have investigated his reasons for decisions as stated and based them on factual information, not on unevidenced hearsay and falsehoods. Mr Beddoe misapplied the principles of law because he misinterpreted the facts." The submission does not go so far as to suggest that there was no evidence upon which the Tribunal could act. The ground reiterates contentions dealt with. 39 "GROUND 15 Mr Beddoe erred in his application of section 43(2B) of the AAT Act. The AAT decision must give reasons for its decisions and reference evidence or other material which those findings were based. Mr Beddoe has not referenced any of his decisions to evidence. The cases quoted do not relate to this case and have nothing to do with the information from which a decision was made from a case manager about an application for educational training." The reasoning of the Tribunal is apparent. It is implicit, in it that it accepted the evidence of the respondent's witnesses as to searches. It had regard to the documents in question. It was not necessary for it to provide transcript or affidavit references. 40 The applicant has not established any error of law in the Tribunal's decision. The appeal will be dismissed. 41 The applicant has also filed a motion dated 8 October 2001. The purpose of the motion is to seek a hearing de novo by the Court on the matter. The Court does not have such jurisdiction. The motion will be dismissed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate: Dated: 8 February 2002 The Applicant: In Person Counsel for the Respondent: Ms M Campbell Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 October 2001 Date of Further Submissions: 31 October, 2001, 16 November 2001, 22 November 2001 Date of Judgment: 8 February 2002