Dunn v EnergyAustralia & anor [2006] NSWADT 288

CITATION: Dunn v EnergyAustralia & anor [2006] NSWADT 288

DIVISION: General Division

APPLICANT Keith Dunn PARTIES: FIRST RESPONDENT EnergyAustralia SECOND RESPONDENT John Kearnes

FILE NUMBER: 063075

HEARING DATES: 16/06/06

SUBMISSIONS CLOSED: 06/16/2006

DATE OF DECISION: 10/03/2006

BEFORE: Pearson L - Judicial Member

CATCHWORDS: access to documents - law enforcement & public safety - access to documents - personal affairs - Freedom of Information Act - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - personal affairs

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989

Centrelink v Dykstra [2002] FCA 1442 Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 CASES CITED: Department of Social Security v Dyrenfurth (1988) 80 ALR 533 Dunstan v Department of Corrective Services [2004] NSWADT 177 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 State Electoral Office v McCabe [2003] NSWADTAP 28

APPLICANT P Quinn, solicitor

REPRESENTATION: FIRST RESPONDENT L Maffina, agent SECOND RESPONDENT In person

ORDERS: Decision under review affirmed

REASONS FOR DECISION 1 Mr Keith Dunn (the review applicant) applies under s53 of the Freedom of Information Act 1989 (the FOI Act) for review of a determination made by EnergyAustralia (the respondent) to release documents to Mr John Kearnes (the access applicant). Background 2 On 3 September 2004 the review applicant wrote a letter to the respondent complaining of an incident involving the access applicant who was driving a truck on behalf of the respondent. On 17 March 2005 the access applicant's solicitor applied on his behalf for access to: A copy of the letter of complaint by Keith Dunn dated September 2004, together with Energy Australia's response and any other related documents. The respondent consulted the review applicant as required by s31 of the FOI Act. The review applicant advised the respondent that he opposed the release of the letter of complaint. The respondent determined to release the letter, subject to the deletion of aspects of the letter relating to the review applicant's personal affairs, and advised the review applicant of this decision by letter dated 5 May 2005. 3 The review applicant requested internal review of that determination. On 16 August 2005 the respondent determined that the letter of complaint was exempt under cl.4(1)(c) of Schedule 1 to the FOI Act, and notified the access applicant on that date. The respondent notified the review applicant on 5 September 2005. 4 The access applicant made a complaint to the NSW Ombudsman about the determination of his FOI application. On 22 December 2005 the NSW Ombudsman notified the respondent of the outcome of its investigation. The Ombudsman commented on a number of aspects of the respondent's processing of the application, and in particular, advised the respondent that it was not obvious on the information then available that release of the letter "could reasonably be expected to endanger life or physical safety" as required by cl.4(1)(c). The Ombudsman recommended that the respondent review its determination, including its determination to rely on cl.4(1)(c) of Schedule 1. 5 On 10 January 2006 the respondent advised the review applicant that it had reviewed the determination. The documents identified as being within the scope of the request were the review applicant's letter of complaint; a report by the access applicant to the respondent about the incident; and a report from an EnergyAustralia manager about the complaint. The determination was to provide to the access applicant copies of the report from him about the incident and the report from an EnergyAustralia Manager about the incident (in full), and to provide a copy of the written complaint with attachments, with deletion of some personal information. The respondent notified the access applicant of this determination on the same date. 6 The review applicant lodged his application for review by the Tribunal on 27 February 2006. On 27 April 2006 the access applicant faxed a request to be joined as a party in this review application. At a planning meeting held on 24 May 2006 the respondent stated that it did not object to the joinder of the access applicant. The review applicant stated that he opposed the joinder. 7 A hearing was scheduled for 16 June 2006, and the access applicant was notified. The review applicant and access applicant participated by telephone. I was satisfied that the interests of the access applicant are affected by the reviewable decision, and ordered that he be joined to the proceedings. Application for joinder 8 Section 67 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) states: … (2) The parties to proceedings before the Tribunal for a review of a reviewable decision are: (a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision, and (b) the administrator who made the decision, and (c) if the Attorney General intervenes in the proceedings under section 69—the Attorney General, and (d) any other person who has been made a party to the proceedings by the Tribunal in accordance with subsection (4), and (e) any person specified by or under any enactment as a party to the proceedings. … (4) The Tribunal may, by order, make a person who is not a party to proceedings for: (a) an original decision, or (b) a review of a reviewable decision, or (c) an external appeal, a party to the proceedings, either of its own motion or on the written application of the person, if the Tribunal is satisfied that the interests of the person are likely to be affected by the original decision or are affected by the reviewable decision or the decision that is the subject of the external appeal. 9 Under s16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. The FOI Act imposes limitations on that right, in particular s25(1), under which an agency may refuse access to a document if it is exempt. Under s25(4) an agency is not to refuse to give access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and it appears to the agency that the applicant would wish to have access to such a copy. The initial decision, and final decision on reconsideration after the Ombudsman investigation, was to give access to the letter of complaint with deletion of material relating to the review applicant's personal affairs. The reviewable decision affects the interests of the access applicant by limiting his access to the document. His interests are, therefore, affected by the reviewable decision. Decision under review 10 As noted above, the decision under review is the respondent's decision to provide access to two documents in full, and to a third document, the review applicant's letter of complaint subject to deletion of exempt matter. The only issue remaining at the hearing was the decision of the respondent to provide access to the letter of complaint with deletions. Review applicant's evidence 11 The review applicant gave oral evidence outlining the background to his letter of complaint to the respondent. The review applicant stated that he has lived permanently at his home since 1990, and the access applicant lives next door. He does not get on well with the access applicant. On 10 August 2004 he was walking to a neighbour's mailbox to deliver a parcel. The EnergyAustralia vehicle driven by the access applicant skidded. The access applicant was in a rage, and spoke to him. The access applicant's wife also spoke to him. Later that night there was a knock on the door and the access applicant's wife threatened to "get him fixed". He spoke to the police who advised him to contact EnergyAustralia. He was advised by them to put his complaint in writing. He would not have said the things he did in the letter if he had known that the access applicant would get access to it. The review applicant stated that since this incident he has his doors locked, and is afraid to open the door. He thinks anything could happen. He has not spoken to the access applicant or his wife since the incident, and they have not come to the door since. Access applicant's evidence 12 The access applicant stated that allegations were made against him to his employer, which is likely to affect his opportunities in the organisation, and also to other members of the community. He is of good standing in the community and has no history of violence. He wants access to the document so that he can get legal advice about taking civil action. Consideration Clause 4(1)(c) 13 The review applicant relies on cl.4(1)(c) of Schedule 1 to the FOI Act. Clause 4(1) provides: (1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: (a) to prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, or (b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, or (c) to endanger the life or physical safety of any person, or (d) to prejudice the fair trial of any person or the impartial adjudication of any case, or (e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or (f) to prejudice the maintenance or enforcement of any lawful method or procedure for protecting public safety, or (g) to endanger the security of any building, structure or vehicle, or (h) to prejudice any system or procedure for the protection of persons or property, or (i) to facilitate the escape from lawful custody of any person. 14 The approach to be adopted in considering the exemption provided by cl.4(1)(c) was outlined by the Appeal Panel in State Electoral Office v McCabe [2003] NSWADTAP 28: In our view, agency opinions making such a grave assessment must be closely scrutinised and not easily accepted. The Tribunal is, we consider, obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies ….The question is always whether the material, statements of opinion and submissions put forward by the agency justifies reliance on the exception (see s61, burden of proof). 15 In Dunstan v Department of Corrective Services [2004] NSWADT 177 President O'Connor stated that the general approach to be adopted in dealing with the kind of exemptions found in cl.4(1) is addressed by the Federal Court in Centrelink v Dykstra [2002] FCA 1442, which dealt with equivalent provisions in the Commonwealth FOI Act: 20 Mansfield J stated that the test to be applied by the Commonwealth Tribunal involves focusing upon the character of the documents in the circumstances of the case, to determine whether there is a 'realistic and material possibility of the harm contemplated by the section occurring.' 21 As noted by Beaumont J and Bowen CJ in Attorney-General's Department v Cockcroft (1986) 64 ALR 97 at 112 the test: '... require[s] a judgment to be made as to whether it is reasonable as distinct from something that is irrational, absurd or ridiculous, to expect that ... there could be a risk of harm to the life or physical safety of another person.' 16 In Dykstra Mansfield J noted that it is not the personal or subjective belief of particular individuals which is determinative, and continued: …The Tribunal had to determine whether the documents had the character that their release would, or could reasonably be expected to, endanger the life or physical safety of any person. I do not discern from the Tribunal's reasons that it misdirected itself in considering that question. It set out to judge objectively whether there was a possibility that the disclosure of the documents could endanger the life or physical safety of other persons, and if so whether that possibility was one which was a reasonable one as distinct from one which was irrational, absurd or ridiculous. 17 The review applicant's representative argued that the threshold test outlined by Mansfield J in Dykstra is not high, and that the possibility of harm is the issue. He argued that the evidence was that the review applicant and access applicant have never been friendly; that the access applicant had driven dangerously; and that he and his wife had harassed the review applicant, who is an elderly man. The respondent's representative acknowledged that there is a situation of antagonism between the review applicant and access applicant, and that each has their own view, however there is no clear evidence that disclosure of the letter could endanger the review applicant's safety. 18 I have read the letter of complaint. In addition to outlining the incident, the review applicant expresses his opinion of the access applicant and his wife more generally. I accept that the review applicant put his concerns in writing at the request of the respondent, and that he probably would not have expressed his opinion in the terms in which he did had he been made aware that the letter might be provided to the access applicant. However, my task is to consider whether the content of the letter meets the requirements of cl.4(1)(c). In considering that issue, I note that while Mansfield J refers to the possibility that disclosure could endanger life or physical safety, that possibility must be "realistic and material". I accept that the relationship between the review applicant and access applicant has been antagonistic. On the review applicant's evidence, there has been no contact between him and the access applicant since the incident. I accept that the review applicant holds fears as to what the access applicant might do in response to the allegations in the letter. However, the test is an objective one, and cl.4(1)(c) is directed at the risk of physical harm, not the possibility of legal proceedings. While it is possible that release of the letter could exacerbate the antagonism between the review applicant and the access applicant, I am not satisfied on the evidence before me that there is a realistic and material possibility of physical harm. I am not satisfied that disclosure of the document could reasonably be expected to endanger the life or physical safety of the review applicant. Clause 6 19 The respondent has determined to provide access to the letter of complaint, subject to the deletion of some material identified by it as information concerning the personal affairs of the review applicant. Clause 6 of Schedule 1 states: (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made. 20 In Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 ( Perrin's case ), Kirby P held that the words "personal affairs" mean "the composite collection of activities personal to the individual concerned". The letter of complaint contains information concerning the review applicant's health, which is clearly a matter personal to the review applicant: Department of Social Security v Dyrenfurth (1988) 80 ALR 533. This information is information concerning the personal affairs of the review applicant. 21 The next issue to consider is whether disclosure of this information would be "unreasonable". In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 the Administrative Appeals Tribunal held that this requires "consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance." The Tribunal went on to state that the public interest recognised by the FOI Act in the disclosure of information in documentary form held by an agency must be balanced against the public interest in protecting the personal privacy of a third party. 22 The review applicant opposes disclosure of this material. I am satisfied that information concerning the review applicant's health is not relevant to the substance of the letter, dealing as it does with a complaint against the access applicant. I am satisfied that disclosure of this information would be, in all the circumstances, an unreasonable interference with the review applicant's personal privacy. 23 It follows that I agree with the decision of the respondent to provide access to a copy of the letter of complaint, subject to deletion of information concerning the personal affairs of the review applicant. The respondent's decision to grant access in that form should be affirmed. Order 24 Decision under review affirmed.